Chambers v. Frazier

By the Court. The judgment of reversal in the district-court is sought to he defended on the ground that the court of common pleas erred in not assessing damages in favor of the defendant on his counterclaims, the plaintiffs being in default of reply. Without passing on the question whether the matters-stated in the second and third defenses are the subjects of counterclaim to the cause of action stated in the petition, we think the judgment of the district court should be reversed. Under the contract of sale set forth in the second defense, the delivery of the wool by the plaintiffs and the payment therefor by the defendant were concurrent conditions. There is no averment that the defendant at any time offered or was ready to pay. The facts stated are therefore not. sufficient to entitle him to damages. On the facts stated in the third defense, without proof of actual damages, nothing more than a nominal sum could have been awarded to the defendant. The record does not show that any proof of actual damages was of [364] fered. The failure to award nominal damages to the defendant did not affect any substantial right. The giving of such damages would not have affected the costs in the case. A judgment should not be reversed where the court fails to give nominal damages on a counterclaim, if such omission did not affect the costs or other substantial right of the defendant. Hill v. Butler, 6 Ohio St. 207. Motion granted. J udgment of the district court reversed and that of the common pleas affirmed.