
    No. 522
    MILLER, et. v. McDOWELL
    Ohio Appeals 3rd Dist., Putnam Co.
    No. 201.
    Decided May 25, 1927.
    (Before Judges Crow, Hughes and Justice)
    54. AGENCY — When agents sell automobile of principal in excess of authorized amount, principal may recover sum in excess of authorized sale price.
    191. BURDEN OF PROOF — Error where court charges that burden of proof shifts to defendants, but such error is not prejudicial where there is no evidence tending to support defense of defendants.
    First Publication of this Opinion
   JUSTICE, J.

A. B. McDowell sued Harl Miller, et al. in the Putnam Common Pleas for money had and received in the sale of an automobile. McDowell claimed to have delivered his automobile to Harl, et. to sell for $250.00, and for so doing to receive a commission of $15.00; that the machine was sold for $300.00 and de-fndants withheld $65.00, giving to plaintiff $255.00. Defendants claimed they purchased the machine outright for $235.00.

Attorneys — Albert H. Straman, Ottowa, for Miller, et; A. A. Slaybaugh, Leipsic, for McDowell.

A verdict was returned in favor of McDowell for $50.00 and judgment was entered upon same. Error was prosecuted and the Court of Appeals held:—

1. The defense being based upon a different agreement than that upon which plaintiff sued, the answer of the defendants was nothing more or less than a general denial. Simmons v. Green, 35 OS. 104.

2. The burden of proof was upon plaintiff to prove all of the essential facts alleged; and although the court erred in charging that the burden shifted to defendants, they were not prejudiced since their defense was unsupported by any evidence.

3. The defendants made certain repairs upon the car and took a note for $300.00 so they had only $280 in their hands as agents and plaintiff. The verdict was therefore excessive to the amount of $20.00 and if plaintiff will consent to a remittitur for $20.00 judgment will be affirmed, otherwise reversed.

Judgment accordingly.  