17 N.E.2d 302

ACH, APPELLANT v. THE JOSEPH R. PEEBLES’ SONS CO., APPELLEE.

Court of Appeals of Ohio.
Decided January 24, 1938.

Appeal — Chancery case tried to jury — Directed verdict motions by both parties — Reviewing court need not consider errors concerning jury.

Where both parties to a chancery case, submitted to a jury apparently under the impression that it was a law action, asked for a directed verdict, a reviewing court need not consider any assignment of error involving the jury, as the jury acted merely in an advisory capacity.

APPEAL: Court of Appeals for Hamilton county.

Page 138

Messrs. Paxton Seasongood and Mr. Jacques L. Ach, for appellant.

Mr. Froome Morris, for appellee.

ROSS, P.J.

This is an appeal on questions of law from the Court of Common Pleas of Hamilton county, Ohio.

In this case the appellant purchased stock in The Joseph R. Peebles’ Sons Company upon certain representations and under an agreement made with the corporation’s representative that the value of the stock was correctly reflected in a balance sheet of the company, which was later found to be inaccurate.

The action is predicated upon fraud in the inception of the transaction resulting in the sale of the stock to the appellant. The prayer in the amended petition was for rescission and judgment for the purchase price of the stock.

The amended petition states a cause of action in equity. A receiver was appointed upon the application of the appellant. Applications for payment of many claims were made to such receiver.

The claim of the appellant came on to be heard, and, both counsel apparently being under the impression that the case was a law action, it was submitted to a jury. At the close of the evidence, both counsel submitted unreserved motions for an instructed verdict, and took exceptions to the refusal of the court to discharge the jury and pass upon the facts as well as the law.

Upon this situation, no assignment of errors involving the jury need be considered by the court, as the jury acted merely in an advisory capacity to the court, which was considering first the right of the appellant to rescission of the contract, a purely equitable matter.

Page 139

Upon examination of the record, we find no error in the judgment of the trial court, and, therefore, affirm the same.

Judgment affirmed.

HAMILTON and MATTHEWS, JJ., concur.