
    No. 10245.
    Busch v. The Winton Motor Carriage Co.
    Decided December 10, 1907.
    Error to Circuit Court of Cuyahoga county.
    
      Messrs. Carr, Stearns & Chamberlain, for plaintiff in error.
    
      Mr,. Sterling Parks and Mr. W. PL McMorris, for defendant in error.
   Judgment of reversal affirmed. Final judgment reversed, and cause remanded to the court of common pleas for a new trial. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court reversing the judgment of the court of common pleas be, and the same is, hereby affirmed at the costs of the plaintiff in error. It is further ordered' and adjudged by this court that the following and final judgment rendered by the circuit court, to-wit: “And considering that the evidence as to the tender back was undisputed and consisted of a series of letters offered by both parties, upon the conceded facts of the case the court proceeds to render the judgment the common pleas court should have rendered, and it is considered and adjudged that the petition of the plaintiff below be, and the same' is, dismissed and that the plaintiff in error recover of defendant in error its costs,” be, and the same is, hereby reversed and held for naught and the plaintiff in error restored to what he lost by said judgment; and further,- that plaintiff in error recover of defendant in error his costs made in this court, and this cause is remanded to the court of common pleas for further proceedings and as to an inquiry whether there was a warranty of the speed of the automobile, and if so, as to the damages for the alleged breach of such warranty.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.  