
    No. 327
    MASSILLON-TUSCARAWAS COAL CO. v. E. D. MILLS
    Ohio Court of Appeals, Lorain County
    No. 219.
    Feb. 16, 1923
    Phis opinion has not been published except in Abstract.
    EVIDENCE — (1) Evidence as to quality of goods, when quality was not an issue, improperly admitted — (2) Charge by court’ concerning quality i of goods improper — (3) Verdict manifestly against / weight of evidence reversed.
    Error to Lorain Court of Common Pleas
    Attorneys — R. F. Vandermark, for the Coal Co.: H. M. Redington, for Mills.
   IjVASHBURN, J.

Epitomized Opinion

{ The Coal Co. sued Mills to recover the balance due for a carload of coal sold to Mills and a verdict Was rendered for Mills. The Coal Co. claimed that Mills agreed to pay $447 for the coal, but paid only $250. Mills claims that upon learning the price óf the coal he refused to accept it, but that in a telephone conversation with its representative he agreed to pay $250 for it. Mills claims also that the coal was of an inferior quality to that bargained for, but in his answer asked no relief in ■reference to the quality. ■ Evidence was admitted bearing upon the quality of ,theM- coal, and the trial court in his charge, instructed the jury that, in order to recover, the Coal Co. must prove that it delivered'the quality of coal agreed upon. Held by court of appeals in reversing judgment for Mills:

1. There being no ■ allegation that the buyer of goods objected to the quality of those delivered or asked relief thereto, evidence as to their quality was improperly admitted.

2. The quality of goods not being an issue; a charge by the trial court that the seller thereof must prove that their quality was that agreed upon, was erroneous.

3. After making due allowance for the fact that the- jury saw and heard the witnesses and were in a better position than a reviewing court to determine the facts, the court is of the opinion that the verdict is not sustained by a preponderance of the evidence, and should be reversed.  