
    No. 397
    SEARS, ROEBUCK & CO. v. KELLER
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7280.
    Decided May 9, 1927
    225. CHARGE TO JURY — Failure of trial court to charge explicitly as to whether an agent had authority to make binding contract, and charging that plaintiff only had to prove said agent a representative of the company is error.
    Judges Richards, Williams & Lloyd, of 6th Dist., sitting.
    First Publication of this Opinion
    Attorneys — A. L. Bishop for Company; C. J. Agnew and Lex Kintner for Keller; all of Cleveland.
   RICHARDS, J.

The original action was brought in the Cuy-ahoga Common Pleas by William E. Keller against the Sears, Roebuck Co. and resulted in a verdict of $2000 in his favor.

Keller was the owner of a vacant lot in the village of Euclid, on which he desired to have a house erected. He conveyed the property to Corwin Waite and a contract was made between him and the Waite Construction Co. for the erection of an “Honor Bilt,” Sears, Roebuck & Co. dwelling. The constrhction company failed, the lot was reconveyed to Keller and it was claimed by him that the Sears, Roebuck & Company agreed with him if he would finish the job they would reimburse him for the amount expended. He contends he completed the job, removed mechanics’ liens and was out $2800. The Company denied the contract, and also that any agent of theirs had such authority to make a contract.

The Court of Appeals held:

1. The first and vital issue in this case in that relating to the claimed authority of Lotz to represent Sears Roebuck & Co. Unless he had authority to represent the company in that behalf the plaintiff could not recover.

2. On this subject, the trial court charged the jury in general language that there could be no contract unless the minds met and the duty rested on the plaintiff to show that a contract was made between the authorized representative and himself.

3. The real issue was not whether he was such representative but whether he was im-powered on behalf of the company to enter into the contract claimed to have been made.

4. The trial court refused to charge explicitly on this subject and therefore committed prejudicial error.

Judgment reversed.  