Opinion
No. 33445
Decided December 2, 1953.
Court procedure — Evidence — Proof of facts establishing right to relief sought, essential — Motion for directed verdict — Duty of court upon failure of proof — Entry of judgment.
1. One who seeks relief by judicial process must present proof of the basic facts essential to establish his right to such relief, or fail in his action.
2. Where on the trial of an action to a jury, no evidence is produced substantiating the material allegations of the petition, it becomes the duty of the court, on motion of the defendant, to direct a verdict in his favor and enter judgment thereon.
APPEAL from the Court of Appeals for Tuscarawas county.
On October 31, 1949, Stratton Zafires filed his petition in the Court of Common Pleas of Tuscarawas County against George Peters, hereinafter called Peters, and another to recover from Peters the sum of $4,000 with interest.
The petition alleges that on or about October 22, 1949, Peters, for the purpose of selling Zafires his business and the equipment and merchandise connected therewith, located at 116 to 118 South Broadway, New Philadelphia, falsely and fraudulently pretended and represented to Zafires that he (Peters) had a four-year lease on the premises involved, when, in fact, he did not; that in reliance on such false and fraudulent representations Zafires paid Peters the sum of $4,000 as a part of the total purchase price agreed on; and that Zafires demanded the return of the $4,000, which demand was refused.
On November 18, 1949, plaintiff filed a supplemental petition suggesting the death of Peters on or about November 1, 1949; alleging that Gus Peters had been duly appointed administrator with the will annexed of Peters' estate; and asking that Gus Peters, administrator, be made a party to the action, and that the action be revived against him.
Thereafter, the administrator was made a party defendant and he filed his answer to the petition and supplemental petition, denying "each and every allegation therein contained."
During the trial of the action, plaintiff introduced in evidence as exhibits the preliminary agreement between Zafires and Peters and the lease for the premises at 116 to 118 South Broadway held by Peters.
Such agreement signed by the parties is short and reads as follows:
"This agreement entered into this 22nd day of October, 1949 by and between George Peters, d.b.a. Sea Bee, 116-118 South Broadway, New Philadephia, Ohio, and Stratton Zafires,
"Witnesseth, that in consideration of Mr. Peters' proposal to sell and my proposal to buy, under terms to be written Monday, October 24, 1949, I am hereby paying the sum of four thousand dollars ($4,000) to bind the bargain. The receipt of said sum is hereby acknowledged by signing this instrument."
The lease, dated April 1, 1949, is from the Ohio Savings Trust Company, Trustee, to Peters. It describes the leased premises and among other things recites:
"To have and to hold the same * * * for and during the full term of four years, beginning April 1, 1949, and ending March 31, 1953."
A rental of $100 per month is stipulated for the first two years of the term and a rental of $110 per month for the last two years.
Then appears the provision:
"It is understood and agreed between the parties hereto that regardless of the term of this lease above provided for, this lease shall expire as of the date of the death of Clara Vinton Wentz and both parties shall be thereupon released of the obligations of this agreement."
Otherwise the lease is in the terminology ordinarily employed in such instruments. Plaintiff was handicapped in the trial for the reason that under the provisions of Section 11495, General Code (Section 2317.03, Revised Code), he was precluded from testifying concerning the subject matter forming the basis of his action. No evidence was produced proving or tending to prove fraud or misrepresentation on the part of Peters.
The bill of exceptions shows the following occurred after the plaintiff rested:
"Mr. Graybill: — and move the court for a directed verdict in favor of the plaintiff [defendant] for the reason that the plaintiff has failed to prove any of the allegations of the petition.
"Court: Overruled.
"Mr. Graybill: Exception. We are not introducing any evidence. Renew our motion just made to the court for a directed verdict in favor of the defendant.
"Court: Overruled.
"Mr. Graybill: Exception.
"Mr. Bowers: If the court please, we ask the court to withdraw the case from the jury and direct a verdict in favor of the plaintiff for the amount asked in the petition.
"Court: Then I take it both sides have made a motion for a directed verdict?
"Mr. Graybill: That's right.
"Court: So that excuses the jury and places the duty upon the court to decide this case here. So, ladies and gentlemen of this jury, you are excused.
"(Jury excused.)
"Whereupon, counsel, for both parties, presented argument to the court, and after the conclusion of their argument the court stated as follows:
"Court: The court has made up its mind in this case and the court finds from the evidence that the plaintiff is entitled to recover from the administrator of the estate of George Peters, deceased, the sum of $4,000 with interest from the 27th day of October, 1949, together with the costs in this case, and renders judgment accordingly * * *."
Judgment for the plaintiff and against the administrator was formally entered in the sum of $4,000 with interest and costs. Later, a motion for a new trial was filed and overruled.
An appeal on questions of law and fact was taken to the Court of Appeals, which court retained and considered the appeal as on questions of law only and affirmed the judgment below on condition that plaintiff accept a remittitur of $1,000 and pay one-fourth of the costs. The remittitur was accepted.
In its written opinion, the Court of Appeals frankly stated that there was a lack of evidence to "support an action for fraud or deceit, nor does it (the evidence) support an action for money had and received without consideration." However, the court expressed the view that it should attempt to terminate the litigation and do substantial justice "even though we stretch our powers to the limit." Upon such basis and for no other discernible reason the judgment of the lower court was affirmed subject to the acceptance of the remittitur hereinbefore mentioned.
The cause is now in this court for review and final determination pursuant to the allowance of a motion to require the Court of Appeals to certify its record.
Messrs. Bowers, Bowers Bowers, for appellee.
Mr. H. Clifton Graybill, for appellants.
We have no doubt that both the Court of Common Pleas and the Court of Appeals in rendering the judgments they did acted with the best of motives, but was there legal justification for what they did?
Here the plaintiff seeks a money judgment against the administrator based solely on the claim of fraud and misrepresentation in the sale of a business enterprise. It is elementary that one who seeks relief by judicial process must present proof of the basic facts essential to establish his right to such relief, or fail in his action.
There is no evidence in this case substantiating the material allegations of the petition. In these circumstances, it became the duty of the trial court, on motion of the administrator, to direct a verdict in his favor and enter judgment accordingly.
On the record, this court reverses the judgment of the Court of Appeals and renders final judgment for the defendant administrator.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART and STEWART, JJ., concur.
LAMNECK, J., not participating.