
    Myerl et al. v. Gutzeit.
    (Decided February 8, 1935.)
    
      Messrs. Hertlein <& Schwer, for plaintiffs in error.
    
      Messrs. Young S Young, for defendant in error.
   Richards, J.

The original action was commenced in the Court of Common Pleas by Julius J. Gutzeit, who set forth in his petition two causes of action. The first was based upon a promissory note, on which he claimed a balance due of $166, and interest, and the second was to recover for boarding a horse.for the defendants. On trial of the case he recovered a judgment for the amount claimed in the first cause of action only.

The evidence discloses that about March 22, 1932, Gutzeit conducted a public sale of certain livestock on his farm, and that William Myerl, plaintiff in error, purchased at that sale a horse, two sheep and a Jersey heifer. In payment for this stock, William Myerl, with his father as surety, executed a promissory note to Gutzeit covering the stock purchased, and this note has been fully paid except for the balance of $166, claimed to be due as the purchase price of the horse. In offering the horse for sale the auctioneer, at the direction of Gutzeit, the owner, announced to prospective buyers that the horse was sold “sound and a runaway.” The defendants in their answer aver that the horse was diseased and unhealthy and was what is commonly known as a “panter,” all of which was well known to Gutzeit. They aver that they relied on the warranty made at the time of the purchase, and that they first discovered this condition when they undertook to work the horse, and that they then immediately rescinded the sale and returned the horse to Gutzeit. The only material controversy in this case relates to the condition of the horse, and whether he was, at the time of the sale, a diseased or a sound animal. Very substantial evidence was introduced on both sides of this question, and after a careful reading of the record we are unable to say that the verdict and judgment are manifestly against the weight of the evidence.

It is urged, however, that the trial judge committed prejudicial error in giving to the jury in charge the following instruction:

“The court further instructs the jury, that if the horse was not sound, and the defendant William Myerl knew of the defect in the horse, or could, by the exercise of ordinary care, have known of said defect, then your verdict would be for the plaintiff, provided said defect or defects, if they existed, were of such a nature that they may have been seen and recognized now by an ordinary person.”

This instruction is clearly erroneous and is manifestly prejudicial to Myerl. Even if Myerl believed there was a defect in the horse, he could rely on the representation or warranty, and if the jury found he relied on the warranty rather than on his own judgment, he would not thereby be defeated. However, the record contains no evidence that Myerl knew of any defect in the horse, nor that he could, by exercising ordinary care, have discovered the defect which is claimed to exist. The horse was led around hy a halter before the sale, which of course would not reveal the fact that he was a “panter,” if he was one. That would only be revealed by working the horse, and of course no opportunity for that existed at a public sale. The law is well settled that in a sale of goods and chattels a seller who clearly promises or affirms that the goods are free from a defect, which in fact exists, may be liable if the purchaser relied on the affirmation, even though he inspected the article sold. In 1 Williston on Sales (2nd Ed.), 401, Section 208, the rule is stated as follows:

“Whatever may be the law in regard to implied warranty, in the case of express warranty it is no defense that the buyer, had he inspected, might have found out the falsity of the seller’s statements. The buyer is justified in taking the seller at his word, and in relying upon the seller’s statements rather than upon his own examination.”

To the same effect is 35 Ohio Jurisprudence, 860. The prejudicial character of this instruction is manifest.

The court also, in the charge, required too high a degree of proof of Myerl and his co-defendant in the following portion of the charge:

“If, in this case, the defendants have established to the satisfaction of the jury by a preponderance of the evidence that the horse was not sound,” etc.

In a civil action of this character a party is not required to establish anything to the satisfaction of the jury, but need only show facts by a preponderence of the evidence when the burden is upon him. To charge on the burden of proof as charged in this case is misleading and erroneous. Cincinnati, H. & D. Ry. Co. v. Frye, 80 Ohio St., 289, 88 N. E., 642, 131 Am. St. Rep., 709. This last-cited case has been followed in this court many times. See Korona Jewelry & Music House v. Loveland, 25 Ohio App., 116, 157 N. E., 500. Among the cases where such a charge has been condemned by this court is Hummel v. Downing, 38 Court of Appeals Opinions, Sixth District, unreported, page 341, decided in Erie county on April 25, 1932.

The verdict and judgment must, for the reasons given, be reversed and the case remanded for a new trial.

Judgment reversed and cause remanded.

Overmyer and Lloyd, JJ., concur.  