
    No. 80
    TRADE CIRCULAR CO. v. STATE BARREL CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5348.
    Decided Dec. 1, 1924
    1255 WARRANTY—Who must bear the burden of proof when there is breach of? Section 8391-8392 GC. followed.
    Published only in Ohio Law Abstract
    Attorneys—C. L. Redman for Addressing Co. Harry F. Glick for Barrel Co., both of Cleveland.
   LEVINE, J.

Epitomized Opinion

The Trade Circular Addressing Co. at the request of the State Barrel Co. agreed to furnish a mailing list of the names of 16,194 retail bakers. The Circular Addressing Co. warranted the list to be 95% correct if used within 30 days; charge for said list being $121.46. No payment being made, the Addressing Co. started an action in Municipal Court. Barrell Co. testified that of 100 names mailed, 50 were returned because of defective addresses; and Address Co. had refused to accept remainder of names. Judgment in that court was rendered in favor of the Barrel Co.

The one point involved is whether or not the Barrell Co. should bear the burden of proving the warranty was broken.

It being a foregone conclusion that if the names were not substantially correct the list would be useless; the warranty is in the nature of a condition precedent to the obligation of Barrel Co. to pay for same. This is easily made apparent when one sees that the warranty to the effect that list of names were to be 95% correct, went to the gist of the contract and was the single inducement for entering into it.

The Court of Appeals in affirming the judgment of the Municipal Court found:

The burden of proof is on the Circular Co.  