Opinion
No. 30669
Decided February 28, 1947.
Charge to jury — Accepting pleaded admissions as true without proof, not prejudicial — No attempt by counsel to have charge corrected — Action to recover value of property sold — Not error to submit issue of fraud to jury — Petition alleged method adopted to cheat and defraud — Evidence established check issued against insufficient funds.
1. A court's charge to the jury, that it may accept as true without further proof any admission contained in the pleadings, although not limited to the party making such admissions, will not be deemed prejudicial where counsel makes no attempt to have such charge corrected.
2. It is not error to submit to the jury, in an action to recover the value of property sold to defendants, an issue of fraud where the petition alleges that at the time of the sale the defendants adopted a method so as to cheat and defraud plaintiff of his money, and the evidence establishes that one of the defendants gave plaintiff a check which was returned because of "insufficient funds," and that plaintiff was never paid for the property sold.
APPEAL from the Court of Appeals for Allen county.
Ezra Place brought this action for money in the Court of Common Pleas of Allen county against C.K. Elliott and A.J. Sheipline, d. b. a. Allen County Farmers Exchange Livestock Sales.
The record discloses substantially the following facts:
Ezra Place, appellant here (hereinafter called plaintiff), is a farmer living in Allen county. A.J. Sheipline and C.K. Elliott (hereinafter referred to collectively as defendants) conducted the Allen County Farmers Exchange Livestock Sales (hereinafter called the exchange). The relationship of Sheipline and Elliott in the conduct of the exchange was one of the disputed questions involved.
In plaintiff's amended petition it is alleged that defendants were partners. Sheipline's answer avers that he was a limited partner, while Elliott's answer avers that he was the owner of the exchange and Sheipline was a part-time employee.
During the month of March 1944, plaintiff owned some cattle and hogs. He communicated to the exchange the fact that he had stock for sale. As result of such communication, Sheipline called upon the plaintiff, looked over the stock and agreed with plaintiff as to price. Thereafter, the stock was conveyed and transported to the exchange where the stock was weighed. Plaintiff was given two checks by a clerk in the office of the exchange. The check for the hogs cleared the bank and closed that transaction. The other check, in the amount of $627.55 for the cattle, was signed by Sheipline individually. That check was returned by the bank for the reason that Sheipline had "insufficient funds" to his credit with the bank at the time of the presentation of the check. The transaction with regard to the cattle is the basis of this action. Plaintiff did not sue upon the check but his action is bottomed upon the value of the cattle.
The amended petition, after alleging facts which constituted defendants as partners, avers that such stock was sold at public auction by defendants; that Elliott has the entire proceeds received for such cattle; that plaintiff believed Elliott was a creditor of Sheipline and defendants adopted that method so as to cheat and defraud the plaintiff and others, in order that Elliott might receive the full amount of money owing him by his co-defendant; and that a conspiracy existed between the defendants to defraud the plaintiff and others.
The answer of Sheipline avers that he entered into an agreement with Elliott, whereby Sheipline was to manage and share equally in the profits of the exchange; that, with the knowledge, orders and consent of Elliott, he, Sheipline, did purchase cattle, consigning same to the exchange for the purpose of enlivening such sales; that he did purchase from the plaintiff at an agreed price the stock described in the amended petition; and that he did consign such stock to the exchange with the full knowledge and consent of Elliott, and denies that he adopted any method to cheat and defraud plaintiff or that he entered into any conspiracy.
The amended answer of Elliott avers that he was sole owner of the exchange; that Sheipline was a part-time employee in no wise financially interested in such exchange; that plaintiff sold to Sheipline individually; and that plaintiff is estopped to recover from him (Elliott). The answer denies that there was any partnership existing between the defendants and denies further the existence of a conspiracy.
Plaintiff filed separate replies to the answers.
There is evidence in the record to support a finding that defendants were partners. There is evidence also to support a finding that Sheipline was acting as agent for Elliott in purchasing the stock.
The jury found the issues in favor of plaintiff and the defendant Sheipline and against the defendant Elliott for the full amount claimed plus interest. Thereupon Elliott prosecuted an appeal on questions of law.
The Court of Appeals reversed the judgment and remanded the cause for a new trial.
The case is here for review as the result of the allowance of a motion to certify the record.
Messrs. Meredith Meredith, for appellant.
Messrs. Cable Cable, for appellee.
The judgment entry of the Court of Appeals recites that "there is error apparent upon the record and the proceedings of said court to the prejudice of the appellant, C.K. Elliott." However the entry made no specific finding of error in the trial. In its opinion, the court enumerates two errors prejudicial to the rights of Elliott.
The first related to the court's charge on the subject of "admissions." The court charged the jury that "any admissions contained in these pleadings, however, you may accept as true without further proof." The Court of Appeals concluded that the quoted sentence was prejudicially erroneous for the reason that it was not limited to the party making such "admissions."
The record discloses that at the conclusion of the general charge the court said, "Now, do counsel have any further requests or suggestions? (Nothing.)" Further, no exception to the general charge was taken by counsel for Elliott. In view of those facts the charge as to "admissions" cannot be deemed prejudicial.
Secondly, the Court of Appeals in its opinion says:
"As hereinbefore mentioned, the pleadings raise no issue of fraud and there was no issue of fraud raised by the evidence. Consequently the court erred in the submission of this issue to the jury and this error was prejudicial to the defendant Elliott and constituted reversible error."
As pointed out in the statement of facts, it is alleged in the amended petition, as follows:
"The plaintiff avers and believes that the defendant, C.K. Elliott, was at the time of said sale and delivery of said cattle the creditor of the defendant, A.J. Sheipline, and that said parties adopted said method so as to cheat and defraud this plaintiff and other farmers of Allen county, Ohio, and surrounding territory out of their money in order that the defendant, C.K. Elliott, might receive the full amount of any money owing him by defendant, A.J. Sheipline."
The evidence makes clear that plaintiff was given a check for $627.55 which was returned because of "insufficient funds," and that the plaintiff was, never paid for the cattle.
Upon the subject of fraud the court charged the jury:
"The plaintiff has charged that the defendants entered into a conspiracy to defraud him of his property. The jury, however, will disregard the charge of conspiracy for there is no evidence to support the same. The plaintiff also charges that the defendants were guilty of fraud. Fraud is a civil wrong. The term admits of no positive definition and cannot be controlled in its application by fixed and rigid rules. It is sometimes said to consist of any kind of artifice employed by one person to deceive another or some wilful act or omission, which is unconscientious and a violation of good faith, and by which one person obtains an undue advantage over another. By fraud is meant all surprise, trick, cunning, dissembling, and other unfair ways that are used to cheat another. It is a deception deliberately practiced with a view to gaining unlawful or unfair advantage. Fraud involves moral guilt of intention to do wrong.
"The burden of proof is upon the plaintiff in this case to prove such fraud and by a preponderance of the evidence. If upon a consideration of all of the evidence the jury finds, by a preponderance of the evidence, that there was such fraud then the plaintiff is entitled to recover a verdict against such defendant, or defendants, as participated in the fraud."
Section 710-176, General Code, provides in part as follows:
"As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank or other depository. The word 'credit' as used herein shall be construed to mean any contract or agreement with the bank or depositary for the payment of such check, draft or order, when presented."
We think the amended petition tendered an issue of fraud; that proof of the giving of the check, upon which payment was refused for the reason of "insufficient funds," made out a prima facie case of fraud against Sheipline; and that, if the jury concluded such defendant was the agent of Elliott and Sheipline was acting under the direction of Elliott in the signing and delivery of the check, the jury would have been warranted in finding against Elliott upon that issue.
The charge upon the subject of fraud was proper and the Court of Appeals erred in concluding that the charge upon that subject was improper.
Section 11364, General Code, reads in part as follows:
"In the judgment of any reviewing court upon any appeal in any civil action, when it is sought to reverse any final judgment or decree or obtain a new trial upon the issues joined in the pleadings, such reviewing court shall certify on its journal whether or not in its opinion substantial justice has been done the party complaining, as shown by the record of the proceedings and judgment under review. In case such reviewing court shall determine and certify that in its opinion substantial justice has Been done to the party complaining as shown by the record, all alleged errors occurring at the trial shall by such reviewing court be deemed not prejudicial to the party complaining and shall be disregarded and such judgment or decree under review shall be affirmed * * *."
After a careful reading of the record, we conclude that substantial justice was done in the trial court and that the Court of Appeals erred in failing to affirm that judgment, in conformity to the provisions of Section 11364, General Code.
The judgment of the Court of Appeals should be and hereby is reversed and the judgment of the Court of Common Pleas should be and hereby is affirmed.
Judgment reversed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and SOHNGEN, JJ., concur.