Tank v. Cousino , 1 Ohio Law. Abs. 200 ( 1923 )

EPITOMIZED OPINION

CHITTENDEN, J.:

Tank had purchased from Cousino certain muskrat skins, as the agent for Silberman & Sons, a fur house in Chicago. Prior to the purchase involved in controversy in this suit, he had also sold á former lot of furs to Tank. The money in this instance was to be deposited in a Toledo bank. Tank claimed that Cousino sold and represented that the furs were all northern muskrats, when on final inspection in Chicago, it appeared as was claimed that a great part of them were southern caught muskrats. The court charger the jury, among other things: “Upon the other hand, if Tank was the agent of Silberman & Sons, but did not disclose that fact to Cousino, or Cousino did not know of the fact; then Tank is personally liable on the purchase price thereof, and the burden of proof of claim made by the defendant in his answer is on the defendant. The defendant must prove by preponderence of evidence the material allegations in his answer.” Held:

1. That' both of the foregoing instructions were erroneous because the burden was upon the plaintiff to prove his cause of action by preponderence.

2. That the court failed to give any effect to the law of warranty, the burden was upon Tank to prove that he was acting only as an agent, but the burden was upon Co.usino to prove that the goods were sold to Tank as an individual and not as an agent.

3. That Tank was not required to make a thorough inspection; and had a right to rely upon the warranty and representation that the muskrats were northern grown, as he was not required to make a close inspection, as if there was no warranty. Judgment reversed.