
    (Sixth Circuit — Cuyahoga County, O., Circuit Court
    Feb. Term, 1885.)
    Befobe Upson, Baldwin and Haynes, Jj.
    Isaac Leisy & Co. v. Jacob Zuellig.
    1. In an action brought on a contract which was claimed to be absolute, but denied by the answer, the evidence introduced by the defendants tending to show a conditional contract: Held, that the burden of proof did not shift, and that the court erred in charging the jury that the burden of proof was upon the defendants to prove that the contract was a conditional one.
    Error to the Court of Common Pleas of Cuyahoga County.
   Upson, J.

This is a petition in error brought to reverse a judgment of the Court of Common Pleas. Two grounds of error are assigned : the first, that the verdict of the jury was against the weight of the evidence, and the second that the court erred in its charge to the jury.

Upon the first question we are not so well satisfied that the verdict was clearly against the weight of the evidence as to reverse the judgment upon that ground.

The second error assigned, that the court erred in its charge to the jury, arises in this way : The original action was a case brought by Jacob Zuellig against Isaac Leisy & Company in which it was claimed that Zuellig had sold certain property to a man named Stapf, for which he owed Zuellig the sum of two hundred and forty-two ($242) dollars, or about that sum; that Stapf afterwards sold out his establishment to Isaac Leisy & Company, and that as a part of the consideration to be paid by Isaac Leisy & Company to Stapf, they agreed to assume and pay this indebtedness by Stapf to Zuellig, the plaintiff in the court below, claiming that to be an absolute agreement on the part of Isaac Leisy & Company to pay that amount as a part of the consideration for the property purchased by Isaac Leisy & Company of Stapf.

The answer, so far as it related to this particular point, was an absolute denial of the statements of the petition ; but upon the trial, after evidence had been introduced by Zuellig to show the making of the agreement on the part of Isaac Leisy & Company, evidence was introduced by Leisy & Company to show that while they had made no absolute agreement, they had made some kind of a contract with Stapf, which they claimed to bo conditional and not absolute; and they claimed that the conditions of the contract had not been fulfilled, and that, therefore, they were under no obligations to pay the debt due from Stapf to Zuellig.

Upon this state of the evidence the court charged the jury as follows: “The testimony has taken a little wider range than the issue. It was probably competent, under the issue, to show, and defendants admit that they did make some kind of bargain with Stapf to pay this claim, but have undertaken to show you that it was a conditional bargain, and that that condition under which he was to pay has never been fulfilled. Now, I think the burden of proof is upon the defendant on that, as a defense. He must show you that the contract was as he says; that the conditions under which he was to pay have not occurred, have not transpired.”

In the giving of this charge to the jury, to which exception was taken specifically at the time of the charge, we think the court clearly eired in saying that the burden of proof was upon the defendant to prove that the contract was a conditional one. The suit was brought upon an absolute contract which was denied by the answer, and that was the only issue so far as that part of the ease was concerned, which was submitted to the jury. The evidence introduced by the defendants to show that the contract was not an absolute1 contract, but only a conditional contract, was entirely immaterial, except so far as it bore upon the evidence of an absolute contract. It was sufficient for the defendants to show that the evidence introduced on the part of the plaintiff was not sufficient to establish an absolute contract; and this evidence ofa conditional contract Avas only important as casting doubt upon the making of an absolute contract. It should have been left by the court for the jury to say whether upon the Avhole evidence, that of the plaintiff and the defendants, they Avere satisfied that such a contract had been made by the defendants as Avas set out in the plaintiff’s petition and denied in the defendant’s answer.

For this error of the court beloAV the case must be remanded to the Court of Common Pleas fora new trial. Judgment re\Tersed.  