Houser v. Ohio Historical Society

Appellant contends that by virtue of the provisions of former G.C. 8619,1 appellee’s ownership of the chattels in question became vested in appellant upon the expiration of the five-year period set forth in the statute.

We agree with the Court of Appeals that G.C. 8619 was a statute of frauds. Richter & Phillips Co. v. Queen City Mfg. Co. (1951), 156 Ohio St. 143, 101 N.E. 2d 291. As such, appellant’s failure to plead it as an affirmative defense constitutes a waiver. Civ. R. 8(C); Civ. R. 12(H); cf. Mills v. Whitehouse Tracking Co. (1974), 40 Ohio St. 2d 55, 320 N.E. 2d 668.

Appellant argues,…