
    No. 298
    
    EVANS CO. v. ELBRA
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6050.
    Decided Dec. 21, 1925
    480. EVIDENCE — Where conflicting, case not reversed, as court and jury had greater opportunity in ascertaining where the truth lay.
    1063. SALES — Assent presumed after lapse of reasonable time in which to repudiate.
   SULLIVAN, J.

The R. W. Evans Co. brought suit against George Elbra on a book account in the Cuyahoga Common Pleas, alleging that there was due it $1165.69. Elbra denied the indebtedness in the sum named or in any other sum whatsoever.

It seems that Elbra ordered the Company to purchase certain stock for him at the market price of 77%. The purchase was made at 78 instead; the company claiming the purchase was made on order of Elbra and in good faith. The jury returned a verdict in favor of Elbra upon which judgment was pronounced.

Attorneys — R. D. Metzner for Company; F. C. Printy for Elbra; both of Cleveland.

Error was prosecuted by the Company and it was claimed that the judgment was manifestly against the weight of the evidence; that the court erred in its charge to the jury; and that it erred in admitting evidence that was incompetent and in rejecting that which was competent. The Court of Appeals held:

1. A case will not be reversed on the weight of the evidence where there is a sharp conflict, as the court and jury who saw the witnesses face to face had better opportunities for detremining where the truth lay.
2. Elbra was entitled to the stock at 77% and an unreasonable time elapsed before the error in purchasing at 78 was admitted by the Company, for during that time Elbra was entitled to the stock at 77% which he could have disposed of in the meantime.
3. There was a deprivation of this privilege by the Company’s mistake, and it cannot profit by its own dereliction.
4. As to a second order claimed to have been authorized by Elbra; but which he claims he never signed, it is claimed that he allowed an unreasonable time to elapse before repudiating the sale.
5. Assent is presumed after a lapse of a reasonable time in which to make objections.
6. The remaining errors complained of are not prejudicial, substantial justice having been done especially in regard to the weight of the evidence.

Judgment affirmed.  