
    Hodges v. Ettinger et al.
    (Decided May 29, 1933.)
    
      Mr. Alvin II. Hodges, for plaintiff in error.
    
      Mr. Siegfried Geismar, for defendants in error.
   Boss, J.

This is a proceeding in error from the court of common pleas of Hamilton county, wherein a judgment of the municipal court of Cincinnati in favor of Alvin H. Hodges, the plaintiff in such municipal court, was reversed. The plaintiff sued for damages for breach of contract of employment, the period of the contract not having expired. The defense was a general denial.

In the evidence it developed that the contract was one not to be performed within a year, and was not in writing. The common pleas court reversed a judgment in favor of the plaintiff in the municipal court, on the ground that the contract was one within the statute of frauds, Section 8621, General Code.

While there was evidence that the contract had been partly performed, this feature is not available in this action. Ossage v. Foley, 20 Ohio App., 16, 153 N. E., 117.

While actions in quantum meruit have been sustained, the present suit is almost entirely based on the period of the contract unperformed, and is specifically an action for damages for breach of a contract which is within the statute of frauds.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Hamilton, P. J., and Cushing, J., concur.

On Application for rehearing.

By the Court.

In considering the application of the plaintiff in error for a rehearing of this cause, the court will adhere to its affirmance of the judgment of the court of common pleas. However, since the judgment to be entered here appears to be in conflict with a decision of the Court of Appeals of the Eighth Appellate District in the case of Parish & Bingham Corp. v. Jackson, 16 Ohio App., 51, the court will certify the case to the Supreme Court for review.

Hamilton, P. J., Cushing and Boss, JJ,, concur.  