Rothman v. Engel

Citations

• 97 Ohio St. (N.S.) 77

Syllabus

<p>Defenses — Res ad judicata — Judgment for breach of contract — Subsequent action to cancel agreement — Fraud and misrepresentation— Counterclaim —Failure to plead in former action.</p> <p>1. Facts that are strictly defensive, and which, if pleaded in an action at law, would state a good defense, do not constitute a counterclaim. And if the defendant does not avail himself of such defense, he will he barred from utilizing it in a subsequent suit.</p> <p>2. Where a party has sued for damages for breach of a written agreement for the exchange of realty and recovered judgment, in which suit the defendant interposed the single defense of nonownership of the property agreed to be exchanged, the defendant in that action cannot in a subsequent suit seek the cancellation of such agreement because his signature thereto was procured by fraudulent acts and false representations made by his adversary.</p> <p>3. In such a case the former judgment is a bar to the second action. The facts subsequently pleaded therein do not constitute .such a counterclaim as may be reserved for future action, but are strictly defensive, and were available as a complete defense in the law action.</p>