Kintner v. Lawrence , 6 Ohio Law. Abs. 547 ( 1928 )

LLOYD, J.

Obviously the instruction which was so given, constituted prejudicial error since it was the duty and responsibility of the court to construe the contract to say whether it did or did not relate to and include the - services for which plaintiff sought to recover a verdict and judgment.

As to the measure of damages, the court instructed the jury as follows:

“The measure of compensation or damages would be, if any is allowed, fifteen percent of the increased value of the real estate, if there was an increased value, after the settlement of the case between the defendant and her mother, and prior thereto. Putting it another way, it was, in the reasonable sale value of defendant’s interest in said real estate before and after the settlment, if there was a settlement of the litigation for which plaintiffs were employed by this defendant.”

If the construction given the contract by the court constituted a cause of action thereunder, for the services of plaintiffs for which they claimed compensation, then manifestly these instructions did not correctly state the measure of damages and was prejudicially erroneous.

The judgment of the Common Pleas is hereby reversed and the action is hereby remanded for further proceeding according to law.

(Houck and Lemert, JJ. concur.)