
    No. 795
    HOPPING v. LeGEAR MEDICINE CO.
    Ohio Appeals, 1st Dist., Warren Co.
    No. 118.
    Decided May 24, 1926
    191. BURDEN OF PROOF — Where payment on order for goods is refused on ground that order was changed; burden of proof is on defendant to show by clear and convincing proof that the charge was made without his consent.
    Attorneys — Charles L. Hopping, Cincinnati, for Hopping; Stevenson & Stevenson, Columbus, for Company.
   BUCHWALTER, P. J.

The Dr. L. D. LeGear Medicine Co. of Missouri sued J. B. Hopping for an amount claimed to be due as a result of an order for certain goods. Hopping admitted he had ordered certain articles shipped; but that the agent who took the order changed it and included goods in addition to those ordered.

Hopping claimed that the Company had not complied with 178 et seq. GC. which requires a certificate of license to do business within the state. The Court found that the Company was entitled to $28 and Hopping to $3.75 for expressage. Error was prosecuted and the Court of Appeals held:

1. Hopping retained the goods for 18 months before reshipping them.
2. The burden of proof to show that the order was changed without his consent was upon Hopping; and the proof was required to be clear and convincing.
3. The courts finding in this respect was not against the weight of the evidence.
4. The Company, soliciting business by travelling salesmen in this state, is not, un'W 188 GO., required to comply with 178 GC.

Judgment affirmed.  