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Opinion Per Curiam.

and qualification entered upon the discharge of his duties and continued to discharge the duties devolving upon him until the first day of January, 1915, and was paid each month, except for the month of December, 1914, the sum of $280. The relator demanded from the superintendent of banks the payment of said sum, which the latter refused and still refuses to pay. A demurrer was filed to the petition, and the only question presented to this court is whether the approval by the common pleas court, at the time the compensation was fixed by the superintendent of banks and before the relator entered upon his duties, was a compliance with the provisions of Section 742-4, General Code, as it stood prior to the amendment of May 20, 1915 (106 O. L., 360). The section prior to amendment read:

“Sec. 742-4. The expenses incurred by the superintendent of banks in the liquidation of any bank in accordance with the provisions of this act, shall include the expenses of deputy or assistants, clerks and examiners employed in such liquidation, together with reasonable attorney fees for counsel employed by said superintendent of banks in the course of such liquidation. Such compensation of counsel, of deputies or assistants, clerks, and examiners in the liquidation of any corporation, company, society or association, and all expenses of supervision and liquidation shall be fixed by the superintendent of banks, subject to the approval of the common pleas court of the county in which the office of such corporation, company, society or association was located, on notice to such corporation, company, society or association. The expense of

Opinion Per Curiam.

such liquidation shall be paid out of the property of such corporation, company, society or association in the hands of said superintendent of banks, and such expenses shall be a valid charge against the property in the hands of said superintendent of banks and shall be paid first, in the order of priority.”

We do not think that the approval of the compensation of a special deputy superintendent of banks by the common pleas court in advance of the rendition of services meets the requirement of this statute. Before the writ can issue in the instant case it must appear that the common pleas court approved the compensation of relator after the services were rendered by him.

Demurrer sustained.

Nichols, C. J., WANAMAKER, NEWMAN, JONES. Matthias, JOHNSON and DONAHUE, JJ., concur.

Opinion Per Curiam.

GRAY V. GORDON ET AL.

Fraudulent representations Sale of moving picture theatre

Value of property- Weekly profits Evidence - Charge to jury — Measure of damages Pendency of counter suit - Contracts Court procedure.

(No. 15248 - Decided July 3, 1917.)

Error to the Court of Appeals of Cuyahoga county.

The facts are stated in the opinion.

Messrs. Howell, Roberts & Duncan, for plaintiff in error.

Messrs. Mathews, Orgill & Maschke, for defendant in error Arthur M. Gordon.

Messrs. Klein & Harris, for defendant in error Isadore Horn.

Mr. S. J. Deutsch and Mr. E. J. Thobaben, for defendant in error L. C. Hoover.

BY THE COURT. Roman H. Gray, the plaintiff in error, brought suit in the court of common pleas of Cuyahoga county against the defendants in error to recover damages claimed to have been sustained by him in consequence of certain false and fraudulent representations made to him by the defendants, whereby they induced him to purchase a moving picture theatre, known as the “Majestic,” in the city of Cleveland.

The petition alleges that the defendants Horn and Hoover were a partnership engaged in the

Opinion Per Curiam.

business of conducting a moving picture theatre in the Majestic Building, and that they employed the defendant Gordon as their agent and broker, for the purpose of selling to the plaintiff their theatre business; that the negotiations between the parties began in the month of November, 1914; that during the period covered by the negotiations the false and fraudulent representations were made; that by reason thereof, relying on them, and while ignorant of their falsity, the plaintiff entered into a contract with the defendants, by which he purchased from Horn and Hoover the said business; and that pursuant to the contract of purchase he paid to the defendants the sum of $12,500 as the purchase price, and received from Horn and Hoover, on the 24th day of December, 1914, a bill of sale conveying to him the theatre business. The different steps in the negotiations and the alleged false and fraudulent representations are set out in detail in the petition.

The material representations charged to have been made to the injury of the plaintiff were to the effect that the theatre business had been producing, and was then producing, a net profit, over and above all expenses, of $200, and more, a week, and that the theatre building was in substantial condition and repair, with a seating capacity of 1300.

The petition alleges that all these representations were false, were known to be so by defendants at the time they were made, and were made for the purpose of inducing the plaintiff to make the purchase aforesaid. The petition alleged that the

Opinion Per Curiam.

property was not worth to exceed $1,000 at that time.

Separate answers were filed by the defendants, in which an issue was made by each as to the allegations of false and fraudulent representations and the damage to the plaintiff thereby. On the trial of the case to a jury, at the close of the plaintiff's case, a motion was made to direct a verdict in favor of the defendant Gordon, which was renewed at the close of all the testimony. These motions were overruled. The jury returned a verdict for the plaintiff for the sum of $14,750.

On the hearing of the motion for a new trial the plaintiff remitted "all of said verdict in excess of $14,000.” The motion was overruled and judgment entered for the plaintiff. On error this judgment was reversed by the court of appeals, and from the entry in that court it appears that the judgment was reversed "for error in the admission of evidence offered by the plaintiff in the Court of Common Pleas, without limiting its application to the false representations relied upon for recovery; in refusing to instruct the jury as requested

defendant in error in special request No. 1 before argument; and for error in general charge."

The jury having found the issues of fact in favor of the plaintiff, it was the duty of the court of appeals to weigh the testimony, and it appears from the opinion of that court, which is printed in the briefs of counsel, that in the performance of this duty the court was far from satisfied upon that matter, although it did not feel justified to reverse the judgment on the ground that it was

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