APPLICATION FOR REHEARING
No. 5603.
BY THE COURT:On this application for a rehearing, we have considered the briefs filed thereon, and have re-examined the record and original briefs. We find nothing that would justify a rehearing, but in view of our re-examination of the questions presented, make these observations in addition to those presented in the opinion heretofore handed down:
1. It was on the insistence of the appellant that his contract was integrated into-the letters that were introduced in evidence. It will be seen from them that after the appellee stated the terms the appellant expressed complete satisfaction with the document as a memorial of their agreement. These letters were offered in evidence by the plaintiff and it devolved upon the court to construe the language in the light of the circumstances upon the appellee’s motions for judgment made at the close of the appellant’s evidence and renewed at the close of all the evidence. The ruling on the motions made at the close of the appellant’s evidence was reserved. The record shows that when these motions were renewed at the close of all the evidence, they were overruled. It appears, with equal clearness from the opinion of the trial court and its *635findings of fact that the court, in effect, entered the same judgment on the same grounds that would have been entered had the motions for judgment made at the close of appellant’s evidence been sustained. Had the ease been disposed of in that manner, there would have been no evidence before the court relating to the various defenses. While the case was decided after the evidence relating to the defenses had been introduced, the ground of the decision was that the appellant had failed to prove a cause of action, and not on the ground that the appellee had failed to defeat this apparent right to recover by proving one or more defenses thereto. Those defenses and the evidence relating thereto became immaterial in view of the ground upon which the judgment was predicated, if that ground was sound, and any error relating to such defenses would not be prejudicial. Findings of fact based on the evidence relating to such issues would serve no purpose in that situation, and the refusal to make them could produce no prejudice whatsoever.
The statute (§11470, GO provides that: “When questions of fact are tried”' a litigant may require the court to state “in writing the conclusions of fact found separately from the conclusions of law,” with a view of excepting to the court’s decision. Now it is manifest that the “questions of fact” relating to the defenses were not “tried.” There was no “judicial examination” of those issues which is the statutory criterion of a trial, §11376, GO. True, evidence was introduced relating to them, but ultimately this evidence was, in effect, excluded as being unnecessary to a decision, and the court decided nothing in relation' thereto. The court’s decision was, that the plaintiff had failed to prove a breach of contract. The court made a finding from the evidence relating to the questions of fact involved in that decision and stated them separately. The findings are ample to test the validity of the decision.
But it is said Produce Co. v Dennert, 104 Oh St 149, gives a litigant the abosolute right to have a separate finding of facts as to every question of fact which the court tentatively permits to be raised regardless of whether it was eventually. tried and decided. We do not so understand that decision.
In that case the interrogatories submitted related to the questions of fact actually decided by the court. There were no affirmative defenses in that case. The findings requested necessarily related to the plaintiff’s case, and would test whether the court had correctly applied the law. The court refused to make any finding, which is just the opposite of what the court did in this case.
The court at pages 154 and 155 in the Dennert opinion clearly states the limitation upon the power of the court in this situation, when it says that the Appellate Court should not reverse unless the error was prejudicial.
We find that the trial court in the instant ease did not err in refusing to make findings upon undecided issues and, furthermore, that if technical error was committed, it lacked the essential element of prejudice to justify a reversal, in view of the fact that we have concluded that the correct judgment was rendered upon the -issue which the court correctly found was the determinative one.
2. Without presenting anything not presented at the original hearing, counsel challenges the correctness of the construction placed upon the written contract by the trial court, which this court has found to be the correct construction. That construction was that this contract provided for a contract of employment for one year, and, thereafter, at the will of either party thereto. The challenge is said to be supported by Kelly v Carthage Wheel Co., 62 Oh St 598. Our view is that the striking difference in the provisions of the two contracts clearly discloses why the contract in this case provides for an employment for one year, and an employ ment thereafter at the will of the parties; whereas, in Kelly v Carth*636age Wheel Co., the contract provided for an employment renewable from year to year by continuing in the employment after the expiration of the expired year. We quote from the contract in the Kelly case to show this •difference:
“ ‘In making this agreement or contract, I will want you to guarantee me $3,000 per year, a proportion of this amount to be paid me each pay day and a settlement to be made at the end of each year, and if I should make more than the above. guarantee, the difference be paid me at the end of each year when settlement is made.’ ”
The application for a rehearing is denied.
HAMILTON, PJ., MATTHEWS & ROSS, JJ., concur.