McCartney v. Roberts , 1923 Ohio Misc. LEXIS 1551 ( 1923 )

ROBERTS, J.

Epitomized Opinion

First Publication of this Opinion

Roberts sued McCartney in Mahoning Common Pleas, alleging that he purchased machinery and equipment of McCartney for $2,800, paying $800 in cash, and giving a note for $2,000; that he returned' $1,500 worth of this machinery, for which credit was to be given by McCartney; that McCartney endorsed the note to the bank and when it became due Roberts was forced to pay it. McCartney filed an answer and cross-petition denying that any machinery was taken back by him, and credit given, and claiming that a balance was due him. At the trial Roberts was asked what McCartney said abvut the machinery before he bought it, and was allowed to answer over McCartney’s objection. This is assigned as error on the ground that the machinery was sold under the terms of a written contract. Roberts testified that after using the machinery for some time, he found it was not satisfactory and returned it to McCartney, who promised the credit. McCartney testified that he_ refused to take the machinery back and give Roberts credit therefor, but that he allowed Roberts to leave it in his yard with the understanding that he would try to sell ,it. The evidence disclosed that Roberts gave renewal notes after the machinery had been turned over to McCartney. The jury found for Roberts. In reversing the judgment, the Court of Appeals held:

1. “We think it was error prejudicial to the defendant to permit the asking of the question as to verbal negotiations and to permit the answer thereto. The answer was contradictory in terms, as evidence of the written contract which the parties had previously had entered into, and under well settled rules it was not competent to contradict the contract in this manner.”

2. “The conclusion is réached that the verdict of the jury upon the proposition as to whether the property was bought by McCartney, and a right of action accrued to Roberts, is sufficient against the weight of evidence in this case to require a reversal.”