
    POSS v SCHLOSS BROTHERS & CO
    Ohio Appeals, 2nd Dist, Clark Co
    Decided Dec 1, 1931
    Cole, Bowman & Hodge, Springfield, for plaintiff in error. ?
    Chase Stewart, Springfield, for defendants in error.
   ALLREAD, J.

The suit involves not only the unpaid notes but the amount due upon consignments for the fall of 1928 and the spring of 1929. The trial court in instructing the verdict allowed a credit for $1450 being the entire amount represented by all the notes, and a judgment was rendered for the balance under instructions of the court. This case has been ably argued by the counsel on both sides. The question is whether a change in the contract from a consignment to an absolute sale of the orders made in the spring of 1928 is an entire change as to the subsequent orders made in the fall of 1928 and the spring of 1929. Counsel for the plaintiffs contend that it is admitted in the record that J. A. Poss was a non-compensated surety and as such was entitled to a favorable construction of his contract. Counsel on the other side contend that the elimination of the items represented by the note given for a change of contract as to spring consignments of 1928 was all that the plaintiff in error was entitled to. The regular consignments for the fall trade of 1928 and the spring of 1929 were made in regular order,' and we can see no reason why they are not recoverable even under a strict construction of the suretyship contract of the plaintiff. We think the trial court was right in instructing a verdict for the amount exclusive of the amount of the notes, to-wit, for $1050.

The judgment of the Court of Common Pleas is therefore affirmed.

HORNBECK, J, concurs.

KTJNKLE, J, not participating.  