
    Moeskops v. Bodman et al.
    
      Evidence — Burden of proof on ■purchaser to prove defense of payment — Action for balance due in sale of realty — Reversals on weight of evidence — Verdict sustained where evidence in dispute — Charge to jury to state law only— Facts may be determined by interrogatories — Special requests upon facts, properly refused — Special instruction not in conflict with general charge — Loss as between two persons trusting third party.
    
    1. In action by vendor to recover balance due in sale of realty, purchaser has burden of proving defense of payment.
    2. Verdict will not be disturbed on error as against weight of evidence, where evidence was in dispute.
    3. Charges, whether special or general, should state law, and, if parties desire interrogatories, they may be submitted.
    4. Charge, attempting to instruct jury what to do if they found certain facts, does not state principle of law, and was properly refused.
    5. Where court gave special charge that where one of two persons must suffer loss by fraud of third, one committing first oversight and trusting third person must bear loss, general charge not to consider whether either party had been defrauded by third person, meaning that acts of third person were not controlling except for question of who' first trusted third person, was not improper.
    (Decided July 6, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Froome Barbour and Mr. Wm. B. Collins, for plaintiff in error.
    
      Messrs. O’Connell & O’Connell, for defendants in error.
   Cushing, J.

Laura Moeskops brought an action against Julia M. Bodman, to recover the sum of $6,000, balance claimed to be due on the sale of real estate described in the petition.

The transactions were negotiated through Howard Morgenroth. The record is that Moeskops had real estate transactions with Morgenroth, and in certain instances was to share in the profits of the sale of certain property. Bodman admitted the transaction in question; that the price to be paid was $18,000, $12,000 in loans, and $6,000 in money; and pleaded payment. So that the burden of proof was on her to establish it.

The question was submitted to the jury. It found in favor of the defendant Bodman. This action is prosecuted to reverse that judgment. The usual errors are assigned.

The contention that the verdict is manifestly against the weight of the evidence cannot be sustained. The evidence was in dispute. The jury passed on that question, and we will not disturb the verdict on that ground.

Exception was taken to the refusal of the trial court to give certain special charges. As we have stated before, all charges, whether special or general, should state the law, and if parties desire interrogatories, they may be submitted. Some of these charges attempted to instruct the jury what to do if they found certain facts. This is not a statement of the principle of law.

The plaintiff in error complains of the general charge of the court, on the ground that he had given this special charge, “I charge you, members of the jury, that where one of two persons must suffer loss by the fraud or misconduct of a third person, he who commits the first oversight, and trusts and reposes confidence in the third party, must bear the loss,” and then in his general charge used this language, “In the outset you are not to consider whether either or both of these women have been defrauded by this man Morgenroth, that has nothing to do in this case, and you are not to consider it.”

This part of the charge, taken in connection with the other parts of the general charge, means that in determining whether or not Moeskops or Bod-man should recover, the acts of Morgenroth were not the controlling factor, unless it became a question of who first trusted Morgenroth.

The issue was made that Bodman was indebted in the sum of $5,200. On the plea of payment, the question was squarely presented. The jury determined it, and the verdict will not be disturbed.

Judgment affirmed.

Buchwalter, P. J., and Hamilton, J., concur.  