
    No. 428
    KRATZ PIANO CO. v. AUGUSTINE
    Ohio Appeals, 9th Dist. Summit Co.
    No. 940.
    Decided March 16, 1925.
    191. BURDEN OF PROOF—He who asserts that circumstances go to make a writing a contract of sale, when it, standing alone, does not resemble such contract must prove it.
    Attorneys—Ormsby, Mills & Chorpening for Piano Co., C. G. Roetzel for Augustine, all of Akron.
   PER CURIAM.

The Kratz Piano Co. sued Mary Augustine to recover the price of a piano which it claimed she had purchased. One of her defenses was that she did not buy the piano, but that it was sent to the house for trial only. The Summit Common Pleas found in favor of, Augustine. Error was prosecuted and the Company produced a writing signed by Mrs. Augustine, which, on its face, constituted a contract for the the purchase of the piano.

The Company claims that if Mrs. Augustine desires to modify or avoid what was in the writing, by showing that it did not accurately set forth what was intended, it must be proven that writing is incorrect by clear and convincing evidence. Mrs. Augustine claimed that what she signed was merely a paper directing the company where to deliver the piano for trial. The Court of Appeals held:

1. Mrs. Augustine’s claim is not so inconsistent with the writing on the paper, as to be such a contradiction of it as is required to be proven by clear and convincing evidence.

2. The writing, standing alone, does not constitute a contract for the purchase of a piano.

S. Burden of proving that circumstances were such as to constitute the writing a contract of sale, was upon the Piano Co., and Mrs. Augustine was not required to prove the facts as claimed by clear and convincing evidence.

Judgment affirmed.  