Miami Consol. Tire Co. v. Heier , 52 Ohio App. 312 ( 1935 )

This is a proceeding in error from the Court of Common Pleas of Butler county, wherein judgment was rendered in favor of the defendant, Frank J. Heier, a verdict having been instructed previously for defendant.

The plaintiff, plaintiff in error in this court, brought suit originally in the Municipal Court of the city of Hamilton to recover a balance of an account stated, amounting to $500. Judgment in the Municipal Court was for the plaintiff. The defendant appealed to the Court of Common Pleas, the case was tried to a jury, and a verdict was instructed for the defendant.

The evidence shows that the plaintiff submitted an account to the defendant, the amount of which was $571.72, which the defendant approved as correct, for he gave the president of plaintiff corporation a check for $71.72, payable to the company, and the president's personal cancelled note for $500. It is not necessary to show a specific agreement to pay the amount admitted to be correct. This is inferred from the admission of its correctness. 1 Ohio Jurisprudence, 196, Section 19.

The court stated in granting the motion for an instructed verdict that there was no evidence supporting the allegations of the petition. It is presumed, therefore, that the court did not find that the account had been paid, but rather that there was no agreement to pay the amount admitted to be correct.

Our conclusion is that there being evidence that the defendant admitted the correctness of the amount of the submitted account he impliedly promised to pay same, and that the court committed error in instructing a verdict for the defendant.

The judgment of the Court of Common Pleas of Butler county is therefore reversed, and the cause remanded for such further proceedings as may be in accordance with law.

Judgment reversed.

MATTHEWS and HAMILTON, JJ., concur.