
    No. 271
    WILLIAMSON COAL SALES CO. v. GANO COAL MINING CO.
    No. 18383.
    Ohio Supreme Court
    Error to Hamilton Appeals
    Motion for order to certify,
    docketed Feb. 13, 1924,
    2 Abs. 147.
    297. CONTRACTS, PLEADING, in short form — Counterclaim.
    Affo~n.eys — S. A. Headley and W. K. Sib-bald. for Williamson Co.; I. B. Davidson and H-'jntz & Heintz, for Gano Co, all of Cincinnati.
   The parties are herein referred to as plaintiff and defendant as they appear in the trial court.

The Williamson Company, in 1922, entered into several contracts with the Mining Company whereby it agreed to sell and deliver to the Mining Company a certain number of cars of coal at prices fixed under the several contracts. Some of the coal was furnished and some was not. The Sales Co. sued on the short form of account for goods sold and delivered. The defendant answered with a general denial and then pleaded the several contracts and averred that the Sales Company had violated the same to the purchaser’s great loss, and counterclaimed for the resulting damages. To this counterclaim the plaintiff filed an answer in which it “denies on information and belief . . . that the original plaintiff . . . is indebted to defendant in any sum whatsoever or on account of. any of the things set forth in defendant’s cross-petition.”

Under the court’s charge the defendant had the entire burden of proving the contracts, the breach thereof, and the lack of any justification for the breach. The Common Pleas found for plaintiff. The' Court of Appeals reversed the Common Pleas upon the following grounds:

1. That the pleadings in the petition were insufficient to support the judgment as the rights of the plaintiff arose upon special contract and the short form of pleading is permissible in such a case only where the contract has been fully performed and there remains no duty except the duty to pay, which was not so in the instant case.

2. That the defense to the counterclaim was a nullity and that the plaintiff was in default for any defense to the cross-petition in that the answer was a mere denial of liability and not a special or general denial of any facts.

3. That the court committed error in instructing the jury in that it failed to charge that the plaintiff had the burden of proving the allegations in its petition-and also in placing the burden of proof upon the defendant to show lack of justification for the breach.

The Williamson Company filed a motion in the Supreme Court for an order to certify, claiming that the Court of Appea’s of Halnil-fon County committed error in its- above holdings.  