
    No. 11063.
    The Newman Manufacturing Co. v. Fisler.
    Decided October 19, 1909.
    Error to Circuit Court of Hamilton county.
    
      Messrs. Bates & Meyer, for plaintiff in error.
    
      Mr. A. J. Cunningham, Jr., and Mr. Starhuck Smith, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

It is ordered and adjudged by this court that the judgment of the said circuit court be and the same is reversed for the reason that the trial court erred in the charge to the jury as follows: “The defendant claims that all the services were rendered by the plaintiff in pursuance of the. agrément by which the plaintiff was to render such services as part of his duties in consideration of the agreement; that is, that the plaintiff was to sell on commission the electric signs of the defendant and that he was by such agreement not to be entitled to any compensation except such commission as he might earn. The burden of proof is on the defendant to establish such agreement, if made, and the terms of such agreement,” the said .instructions to the jury as to the burden of proof being contrary to the rulings of this court in Simmons v. Green, 35 Ohio St., 104, and in The List & Son Co. v. Chase, 80 Ohio St., 42. And this court proceeding to render the judgment which the said circuit court should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be and is hereby reversed and that the said cause be remanded to the court of common pleas of Hamilton county for a new trial according to law in conformity with this decision.

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