
    No. 63
    SPRECHER v. DWYER
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7792.
    Decided Dec. 13, 1926
    191. BURDEN OF PROOF — Burden of proof is upon defendant to show by a preponderance of evidence that a written contract was abrogated and a new and different oral contract substituted therefor.
    Attorneys — Dustin, McKeehan, Merrick, Ar-ter & Stewart for Sprecher; R. M. Ewing for Dwyer; all of Cleveland.
   VICKERY, J.

Orville Sprecher brought an action against Leo Dwyer in the Cleveland Municipal Court to recover a certain amount of money claimed to be due as royalties growing out of a contract for the sale of bead moving picture screens. Dwyer answered, claiming that the contract referred to had been mutually rescinded and set aside by the substitution of a verbal contract, by virtue of which Sprecher agreed to work for Dwyer for $200 per month and 10% of the net profits and, in consideration of this contract, the former written contract was abrogated and set aside. The court found the issues in favor of Dwyer and rendered judgment in his favor.

Error was prosecuted and defendant claimed that the new arrangement with Sprecher was made without reference to the old contract and was not an enlargement or modification of the old contract; but was the substituting of an entirely new and different contract. Sprecher urged that the burden of proof was upon Dwyer to prove this. The Court of Appeals held:

1.The burden of proving the verbal contract was a new and different one substituted for the former written contract, was, as urged by Sprecher, upon Dwyer to prove by a preponderance of the evidence.

.2. A written contract may be rescinded verbally and it may be rescinded by • the substitution of another contract which is inconsistent with the original contract.

3. Sprecher before he entered the employ of Dwyer was earning $160 jper month in Detroit, and worked for Dwyer for over a year for $200 per month under the new arrangement. Duing all this time nothing was said by either party as to the royalties.

4. This would be indicative that Dwyer’s contention was right, that his -contract for royalties had been abrogated and this new arrangement was entered into, whereby Sprecher earned more than as a workman in Detroit, with a possibility of having 10% of the net profits.

5. The fact that Sprecher received added compensation for the time he worked for Dwyer constitutes sufficient consideration for the abrogation of the old contract; and there was no error in the lower court finding that the old contract was abrogated and a new one substituted.

Judgment affirmed.

(Levine, PJ., and Sullivan, J., -concur.)  