
    The Harten-Knodel Distributing Co. v. Harrison.
    (Decided May 31, 1932.)
    
      Messrs. Batterman & Cowell, for plaintiff in error.
    
      Messrs. Fricke & Spiegel, for defendant in error.
   Ross, P. J.

This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered affirming a judgment of the municipal court of Cincinnati in favor of Charles Harrison, the defendant in that court.

The plaintiff in error, the Harten-Knodel Distributing Company, sold a radio to one Max Aulick, the total price was $165, $75 to be paid as a down payment. Aulick gave the plaintiff in error $45 in cash and a $30 check, and the check was returned by the bank unpaid. The radio was delivered to Aulick before discovering that the check was worthless. Later the radio was discovered in the hands of the defendant in error, Charles Harrison, who said “he had bought the set from Aulick, and was going to keep it.”

This is a replevin suit to secure possession of the set.

In Hodgson v. Barrett, 33 Ohio St., 63, 31 Am. Rep., 527, the third paragraph of the syllabus is: “Where payment is made by á check, drawn by the purchaser on his banker, this is a mere mode of making a cash payment, and not the acceptance of a security. Such payment is conditional only, and if the cheek upon due presentation is dishonored, the vendor’s right to retake the goods from the purchaser remains in full force.”

Section 8403, General Code, provides: “Subject to the provisions of this chapter, when goods are sold by a person who is not the owner thereof,, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.”

There is nothing in the record showing that the owner is estopped to deny Aulick’s right to sue Harrison.

Section 8404, General Code, provides: “When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller’s defect of title.”

In order, therefore, that Harrison, the defendant in error, shall establish his right to possession of the goods, it is necessary for him, granting that the record does not show that plaintiff in error disavowed the sale before transfer to Harrison, to show that he, Harrison, bought the radio “in good faith, for value, and without notice of [Aulick’s] defect of title.” No such evidence appears in the record.

The municipal court of Cincinnati erred in rendering judgment for the defendant in error, and the court of common pleas erred in affirming such judgment, which is reversed along with that of the municipal court, and the case is remanded to the municipal court for a new trial.

Judgment reversed and cause remanded.

Hamilton and Cushing, JJ., concur.  