#### John R. Gottschalk *v.*Charles Witter.

1. An agreement by the lessor to let tbe lessee have tbe good-will of a business, and that the lessor will abstain from carrying on a like business in the same locality for a period of five years, is within the statute of frauds, and voidable if not in writing.

2. Where a lessee brought his action on such an agreement, seeking to enjoin the lessor from its violation, and to recover damages for its breach, and upon demurrer to a plea by the lessor that the agreement was not in writing, and therefore void, the court, on hearing, overruled the demurrer, and dismissed the petition: *Held,*that this action and proceeding were no bar to a future action by the lessee to rescind the contract, and recover back the consideration given for the agreement.

3. Where the court, in addition to the issues made in the case, submitted to the jury certain questions, agreeably to the provisions of section 276 of the code, and the jury, by evident mistake, returned both an affirms* *77tive and negative answer to one of the questions so submitted: *Held,*that this was in effect, a failure to answer that question; and there being enough in the other findings of the jury to determine all the material questions in the case, and show clearly what the jury intended, it was • not error in the court to refuse to set aside the verdict on the ground of such mistake or omission.

Motion for leave to file a petition in error, to reverse the judgment of the Superior Court of Cincinnati.

The plaintiff in error brought his original action against defendant in error, in the Superior Court of Cincinnati, tO' recover the amount of defendant’s promissory note for $333, dated July 1, 1871.

By his answer the defendant alleged that, at the date of ‘ the note, he took from the plaintiff’ a lease, for the term of five years, of a store-house and premises, where the plaintiff' had previously been engaged .in selling meats and provisions, and also purchased of the plaintiff certain fixtures and articles of personal property in the store, of the value of $100 ; that the plaintiff at the same time verbally agreed to sell to the defendant the good-will of the business, and not to engage in the same business during said period of five years, in any place near enough to the premises to interfere with the defendant’s custom; that the plaintiff’fraudulently represented the business to be profitable; that in. consideration of this agreement, and of the fixtures and. articles of personal property, the defendant agreed to pay the plaintiff’ $1,300 ; that of this sum he paid the plaintiff in hand $300, and executed to him his three promissory notes for $333 each, payable at one, two, and three years, the-note in suit being one of said notes; and that the plaintiff’ has not kept his promise to abstain from competition, but, on the contrary, has set up, and is now carrying on, a like business in the neighborhood, whereby the defendant’s-business has been rendered unprofitable. The defendant therefore prays that the plaintiff may be compelled to give up and cancel these notes, and repay to him “ such part ” of said sum of $300 “ as shall be equitable.”

To this defense and counter-claim the plaintiff replied as *78follows: 1. He denied the alleged agreement to abstain from competition. 2. He denied that he had engaged in a •competing business, interfering with that of the defendant. 8. He plead the statute of frauds, the agreement not having been reduced to writing. 4. He denied that this supposed agreement was the consideration of the three promissory notes, without, however, setting forth what was their true consideration. 5. He alleged that the matters set up in the defense and counter-claim had been adjudicated in .a former action brought by the defendant against the plaintiff, to enjoin the plaintiff from carrying on such business in the neighborhood, and to recover damages for breach of said agreement; in which former action the plaintiff had plead the statute of frauds, and the court, on demurrer to that plea, had held the same to be a bar to the .action, and had dismissed the defendant’s petition.

The case was submitted to a jury on these issues, and upon certain questions in writing propounded to the jury by the court. The jury by a general verdict found for the ■defendant, “ upon the issues joined in the case,” and returned answers to the questions propounded. Four of these questions were: 1. Did the plaintiff sell to the defendant the good-will of the business? 2. Did he agree not to engage in like business in the neighborhood ? 8. Were the notes given for this agreement and sale of the good-will? 4. Has defendant paid the plaintiff for all he purchased besides the good-will ? These four questions the jury answered in the affirmative. The remaining question propounded was, whether the plaintiff, if he made the agreement in regard to good-will and abstinence from competition, had in good faith kept it, or whether he had violated it. The jury treated this as two questions, and answered “ yes ” to both, thus in effect findiug that the plaintiff had kept the agreement and,also,that he had violated it.

The plaintiff moved the court to set aside the verdict, and for a new trial, both on the ground that- the verdict was •uncertain and imperfect, and also, because it was against *79the evidence. The evidence, including a copy of the record in the former action, is all set forth in a bill of exceptions. This motion was reserved for decision in the general term of the court, where it was overruled, and a judgment rendered that the defendant go hence and recover his costs, and that the plaintiff should surrender the three notes *to*the defendant, and be forever enjoined from collecting them. To this order and judgment the plaintiff excepted, and he now asks leave to file a petition in error to reverse the same.

The assignments of error are sufficiently noticed in the opinion of the court.

*Jacob Wolf,*for plaintiff in error:

I. The defendant holds on to the lease and at the same time asks a rescission of the contract. The-defendant has no right to rescind. *Hunt*v. *Silk,*5 East, 449 ; 2 Parsons on Contracts (3 ed.), 192, 278, 281.

When the plea confesses the action and does not sufficiently avoid it, judgment shall be given upon the confession without regard to the verdict. Chitty’s PI. 656 ; Tidd’s Pr. (9 ed.) 920, and cases cited in note *g.*

There must be judgment for plaintiff notwithstanding the verdict. 11 Ohio, 299; 12 Ib. 35 ; 17 Ib. 457.

II. The verdict can be corrected in matter of form, not matter of substance. 2 Ohio, 31; 3 Ib. 384; 5 Ham. 227; Code, sec. 274.

If there is a material repugnance in the verdict, it is not competent for the court to decide which is the truth of the case. *Hawson*v. *Saffin,*7 Ohio (pt. 2), 232; *Clark et al.*v. *Irwin,*9 Ohio, 132.

The court could not withdraw the interrogatories. *Otter Creek Black Coal Co.*v. *Rany,*34 Ind. 329; *Sage*v. *Brown,*Ib. 464; *Vickols*v. *Weaver,*7 Kan. 373.

III. The supposed agreement, as stated in the cross-petition, is void. S. & C., 659, sec. 5; 2 Parsons on Contracts, 316; *Bogdell*v. *Drummond,*11 East, 142, 160; *Birch*v. *Earl of Liverpool,*9 B. & C. 392; *The Packet Co.*v. *Sickles,**805 Wallace, 580; *Hill*v. *Hooper et al.,*1 Gray, 133; 19 Pick. 364; 12 Conn. 455; *Bartlet*v. *Wheeler et al.,*44 Barb. 162; Smith’s Leading Cases, 432, 438, and cases there cited ; 2 Harr. 27; *Dobson*v. *Collis,*1 H. & N. 81; *Blanding*v. *Sargent,*33 N. H. 239.

IV. *Bes adjudícala*applies. *Hinton*v. *McNeil,*5 Ohio, 509; *Ewing*v. *McNary & Clafflin,*20 Ohio St. 315; *Hites*v. *Irwin’s Adm’r,*13 Ib. 284; *Babcock & Co.*v. *Camp et al.,*12 Ib. 11.

*John C. Healy,*for defendant in error:

The plaintiff can not avoid his contract and at the same time recover the consideration money agreed to be paid, therefor.

It was wholly unnecessary to answer the third interrogatory at all after the second question had been answered for the defendant. The submission of such question at all was a matter purely within the discretion of the court, and. had it declined to do so, its refusal could not have been assigned as error. C. *C. &; C. R. R. Co.*v. *Terry,*8 Ohio St. 570; *Adams Express Co.*v. *Pollock,*12 Ib. 618; *Hopkins*v. *Shull,*3 West. Law Mo. 609.

Welch, J.

We are unable to see any substantial error-in this proceeding to the prejudice of the plaintiff'.

The principal ground of error relied upon is, that the claim set up in the cross-petition was barred by the former-action. It is claimed to be a bar for two reasons : 1. Because the plaintiff, by prosecuting the former action, elected to affirm the contract, which he now seeks to rescind; and 2. Because the matters set up in the cross-petition were adjudicated in that action.

Neither of these propositions, in our judgment, is maintainable. The former action can not operate to affirm the contract, because the plaintiff, by pleading the statute, has-elected to avoid it. He has by this plea reduced the contract to a nullity, and there is, therefore, nothing left to be affirmed. The plaintiff can not at the same time avoid the *81contract and insist that the parties have elected to fulfill it-The former action was merely an election to affirm the contract, *provided*the plaintiff did not choose to avoid it by pleading the statute of frauds. The plaintiff had his election, whether to avoid the contract, as he has done in both actions, by his plea of the statute, or to treat it, as the defendant by his former action offered to treat it, as valid and binding. Having chosen to avoid it, nothing remains but to restore the parties to their former situation. Neither .party can avoid the contract, and hold on to what he has-acquired under it.

Equally untrue is it that the claim set up in this cross-petition was adjudicated in the former action. By the-former action the defendant sought to *enforce*the contract ;, by the cross-petition he seeks to *avoid*it. The adjudication in one case was that the. contract can not be enforced, and in the other case, that it can be rescinded. There is no-conflict between these adjudications; they are perfectly consistent with each other. But the plaintiff’ says that the defendant has affirmed the contract, or rather, is not in a condition to rescind it, because he still holds the lease, and the fixtures and personal property. The answer to this-claim is, that the lease is by the pleadings shown to be a thing by itself, independent of the agreement in regard to good-will, or the sale of the property, au.d that, as we understand the findings of the jury, the notes were given in consideration of the agreement, the $300 in money being1 paid as the price of the goods.

But it is also claimed that the verdict was void for uncertainty, and should.have been set aside, or if not, that judgment should have been rendered for the plaintiff, either upon the verdict, or notwithstanding the verdict.

It is true that the jury, in their answer to one of the questions propounded by the court, seem to find both that •the plaintiff did, and that he did not fulfill his agreement-But they also find all the issues for the defendant. One of these issues was this precise question, whether the plaintiff had so kept his agreement. It is hardly conceivable that *82the jury could return a general verdict against the plaintiff, if they believed he had “faithfully kept and fulfilled” his agreement. To suppose so, would be to stultify the jury.. The question so answered by them was propounded in the alternative form, and it is easy to see how they might fall into the mistake of answering it as they did. Taken literally, the two answers to this question neutralize each other, and leave the question, in effect, unanswered, and the general verdict and answers to the other questions unaffected thereby. We know of no law, or good reason, to prevent the court from withdrawing this question from the jury, or excusing them from answering it in a case such as this. That this double and contradictory answer was made by mistake, is admitted. The jury intended to answer either one way or the other, and not both ways, and their other findings leave no doubt in our minds that they intended to answer the question in favor of the defendant.

There are other assignments of error upon the record, but we deem neither of them maintainable.

*Motion overruled.*

McIlvaine, C. J., White, Rex, and Gilmore, JJ., concurring.