#### Hanes et al., Appellees, *v.*Block et al., Appellants.

(No. 3832

Decided October 15, 1945.)

*Mr. Davicl T. Keating,*for appellees.

*Mr. Barry Kohn*and *Mr. William Wasserstrom,*for appellants.

Hornbeck, P. J.

This is an appeal on questions of *395law from a judgment of the Municipal Court of Columbus in favor of plaintiffs and against defendants, in the sum of $1,000 and costs. The cause was submitted to a judge and jury upon the issues drawn by petition and answer and cross-petition.

The petition alleges an express oral contract between the parties whereby the plaintiffs were to operate and conduct a restaurant in the west half, and adjoining a cafe in the east half, of 1184 and 1186 West Broad street, operated by defendants under the name of Bruce Grill and Lunch; that plaintiffs were to own and receive the net profits of the operation of the restaurant; and that the defendants were to own'and receive the net profits from the operation of a juke box, weighing scales and cigarette machine.

It is specifically alleged that defendants agreed to, and orally reaffirmed, this agreement with plaintiffs,, that in the event defendants, at any time, should desire to sell, lease or dispose of the restaurant business at 1186 West Broad street, they would pay to plaintiffs $500 in cash and give the plaintiffs reasonable notice and reasonable time to leave and re-establish themselves in the restaurant business elsewhere, without loss.

It is averred further. that in the operation of'the restaurant plaintiffs showed a profit which increased monthly until it amounted to approximately $450 for the month of May 1944; that on or about the 15th of .June 1944, without any warning and without any notice to plaintiffs, defendants made a sale, lease or disposition of the restaurant to a third party and locked the door on plaintiffs on or about the 16th day of June 1944.

It is averred further that, although the plaintiffs have sought to re-establish themselves in the restaurant business at a proper location, they were not *396able to do so until the 16th day of July 1944, and they thereby lost in that period of time the sum of $600; and that when plaintiffs were locked out and barred from their restaurant by defendants and when the new party entered therein, stocks, merchandise and supplies of various kinds belonging to plaintiffs were taken over and converted to the use of the defendants and the new party, in the reasonable value of $360.

The prayer is for judgment for $1,400 damages.

The answer'admits that plaintiffs were in the employ of the defendants and, as compensation for their work and labor, plaintiffs received their food and the net amount of cash remaining after payment of costs. Defendants plead full performance of all their obligations under their contract and generally deny every allegation of the petition not expressly admitted.

. There.is also a cross-petition which it is not necessary to set forth because there is no cross-appeal.

When the cause- came on for trial, defendants moved to strike from the files the demand for jury trial filed by plaintiffs on February 26, 1945, for the reason that the same was filed untimely and in violation of the rules of the court, numbers 21 and 17.

The court overruled, that motion and granted the demand of plaintiffs for jury trial. This action of the trial judge is the first error assigned.

The record discloses that counsel for defendants, appellants herein, did not observe that portion of rule 21 of the Municipal Court which provides that a demand for jury trial shall be filed not later than seven days after the date for filing the answer as fixed by Rule 17.

It is urged that the rule was promulgated under authority of Section 1558-64, General Code, authorizing the Municipal Court of Columbus to formulate a rule providing how long before the trial a demand for a *397jury should be made. We are cited to *Goldberg Co.*v. *Emerman,*125 Ohio St., 238, 181 N. E., 19, which supports a rule providing how long before the trial a demand for a jury should be made and requiring such demand to be in writing as constitutionally valid. That does not reach our immediate question, namely, were defendants prejudiced by the action of the court in waiving the strict provisions of the rule. The enforcement of rules of court, whether made by reason of the courts’ inherent power or under statutory authorization, is uniformly held to be within the sound discretion of the courts.

It would be difficult to hold that the defendants were prejudiced by the action of the court in permitting the plaintiffs to have their cause submitted to a jury. *Sargent*v. *Corbley,*7 C. C. (N. S.), 226, 18 C. D., 125.

We are satisfied that there was no abuse of discretion on the part of the trial judge in overruling the motion of defendants, and that they were not prejudiced by such action.

The second error assigned is misdirection to the jury by the court in the general charge, and particularly this language:

‘ ‘ There is in law what is called an implied contract; that is a situation in which parties, by their conduct, give each other to understand that they will do certain things without actually expressing them. If the jury should find that an implied contract resulted from the conduct of the parties, the court charges you that would be binding upon them. ’ ’

There may be no serious objection to that charge in the abstract, but it was entirely inadequate to inform the jury of the law as to the issues of fact which it was required to determine.

' Our Supreme Court as early as *Railroad Co.*v. *Lockwood,*72 Ohio St., 586, 74 *N.*E., 1071, and later in *398
      *Telinde*v. *Ohio Traction Co.,*109 Ohio St., 125, 141 N. E., 673, has held that it is reversible error for the court to fail to separate and define the various issues of fact in the pleadings.

The bases of plaintiffs’ claim and the damages flowing therefrom clearly appear in the petition, and the issues of fact thereon were raised by the answer. In view of the testimony, it became vital to the rights of the parties that the issues be separated and the controlling law respecting each stated to the jury.

It is probable from this record in its entirety that the plaintiffs were entitled to a verdict in some amount, especially is this true in view of the fact that neither defendant took the stand to clarify the issues.

The damages were grounded upon the claims, first, that there was an express oral contract between the parties that the plaintiffs were to own and receive net profits from the operation of the restaurant, and, second, that should defendants desire to sell, lease or dispose of the restaurant, they would pay plaintiffs $500 in cash and give them reasonable notice and reasonable time to establish themselves in the restaurant business elsewhere, without loss. The first claim was admitted by the answer. The second was denied. The second claim was reasserted in the statement of plaintiffs’ counsel to the jury and again in his brief and on oral argument, but the record affords no proof whatever of this claim. There is testimony respecting two or three proposals and discussions of the parties, but not one of them supports the averment of the contract alleged. It is obvious from the verdict and judgment that the jury awarded to plaintiffs some part of the $500 in cash which it is averred defendants agreed to pay if they decided to sell and dispose of the restaurant business. The jury could not, under the pleadings, consider any of the testimony respecting the *399loss of profits of plaintiffs because the basis therefor,, namely, the express contract, was not established.

If defendants locked plaintiffs out of the restaurant,, which fact seems to be established, and if defendants converted to their own use merchandise and foodstuffs belonging to plaintiffs, the latter were entitled to payment in the reasonable value thereof. The evidence of the amount of property converted and its value was not as complete or specific as desirable, but it probably was sufficient to carry the case to the jury.

It was no help to the jury in fixing value for a witness to say that he had a lot of this and a lot of that in the restaurant.

When and if this case is retried, the issues on the pleadings should be carefully determined by the trial judge and the plaintiffs should be required to conform their proof to the case which they make on their pleadings.

No good purpose would be served in further discussing the variance between the proof and the case made on the pleadings.

Defendants’ claim that the court erred in overruling their motion for judgment *non obstante veredicto*will be denied.

The judgment is reversed for error in the charge of the court and because the amount of the verdict is contrary to and manifestly against the weight of the evidence.

*Judgment*reversed.

Miller and Montgomery, JJ., concur.

(Decided November 8, 1945.)

On Application for rehearing.

*400By the Court.

The cause is submitted on application of plaintiffs, appellees herein, for rehearing.

Two grounds are assigned, first, “the court **** * erred grievously when it made this statement, ‘it is obvious from the verdict and judgment that the jury awarded to plaintiffs some part of the $500 in cash which it is averred defendants agreed to pay them if they decided to sell and dispose of the restaurant business.’ ” The statement which is challenged is manifestly correct. The total damages prayed for in the petition were $1,400. The verdict and judgment were for $1,000. There was no supplemental petition. Obviously, some part of the $500 damages claimed was awarded. Even though the verdict was in such an amount that it would appear that it was $500 or more less than prayed for, even so, this court could not determine whether the verdict included some part, or all, of the $500 damages claimed.

The second ground is that the court erred in its observation respecting the charge on implied contract. It is not necessary for us to restate our view respecting the charge of the court. It was fully and carefully considered in our original opinion.

Nothing is suggested in the application which was not passed upon in our former opinion. The application is denied.

*Application denied.*

ITornbeck, P. J., Miller and Montgomery, JJ., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.