Epitomized Opinion

Griffiths and O’Marr owned houses and lots in. Akron which thev had sold upon land contracts. They traded these land contracts to Graves for two' properties of his in Forest Glen allotment, consisting of two houses and lots. Griffiths and O’Marr asked a recision of the purchase because of fraud which they alleged was committed by Graves through misrepresentations made by him at the' time of the purchase and relied upon by them. Trial court rendered judgment for Graves. The evidence disclosed that prior to this transaction O’Marr had sold some property for Graves, had been paid the regular real estate commission and Graves had told O’Marr about these houses and had offered him a real estate commission if he would sell the houses. Griffiths and O’Marr then asked leave of court to amend their pleading to include this as one of their grounds for decision. The Court of Appeals in affiming the judgment held:

1. So far as Griffiths is concerned, the trial court erred in refusing to allow the amendment, but inasmuch as all of the evidence incident thereto was admitted, there is no prejudicial error.

2. We are convinced that at the time this property was listed with O’Marr, neither O’Marr nor Graves intended that this was to be used as an inducement to entrap Griffiths.

3. As the evidence is conflicting on the general charge of fraud we, a reviewing court, are not prepared to say that the judgment is manifestly against, the weight of evidence.