Olinger v. McGuffey , 55 Ohio St. (N.S.) 661 ( 1896 )

The court is of the opinion that there is error shown by the record for which the judgment should be reversed, in this, to wit: That the said James W. Meek, in his answer and cross petition avers that the note on which the suit is brought had been paid off and extinguished, and that the indorsement on the note was placed thereon merely as a memorandum at the request of John G. McGuffey, and not to pass the title to the note, which was denied in the reply of the plaintiff. The burthen of this issue was on the said James M. Meek to establish the same, not by a mere preponderance of the evidence, but by clear and convineing proof. Prom an examination of . the evidence there does not appear to be such proof, and the court must have been of the opinion that such proof is not necessary and that a mere preponderance is all that is required.

Therefore, the court being of the opinion that the rule has been disregarded in this case, the judgment is reversed and cause remanded to the circuit court for a new trial. Ford v. Osborn, 45 Ohio St., 1.