Epitomized Opinion

Published Only in Ohio Law Abstract

Original action for damages in the Common Pleas wherein L. D. BcMillan was plaintiff and the Elyria Memorial Hospital Co. was defendant. McMillan alleged that he was engaged for one year by the Hospital Co. as pathologist at a salary of $300 a. month. The defense by the Hospital Co. was that its superintendent, who made the contract with McMillan, had no authority to make such a contract. From April 1 to Nov. 1, McMillan was paid $150 regularly twice a month. On Nov. 16th he received a check for $120. Upon complaint he was informed by letter from -the president of the board of directors that salary adjustment was in charge of the superintendent. At the end of plaintiff’s testimony, the defendant Hospital Co. contending that McMillan had given no evidence of authority in the superintendent to make the contract, moved for a directed verdiot. This motion the trial court granted. McMillan prosecuted error. Held:

Whether there was any evidence of the superintendent’s authority it is not necessary to decide. It .is the opinion of this court that the payment to McMillan of $300 a month from April 1 to Nov. 1, was evidence which entitled him to go to the jury as to whether there was not an implient contract, independent of the alleged written contract, which would entitle him to $150 for the period from Nov. 1 to Nov. 15. The motion of defendant for a directed verdict was an admission of all the facts which the evidence in any degree tends toi prove. 4 OS. 628. Judgment reversed and cause remanded.