
    No. 949
    MORTON v. SIEBLER CLOTHING CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Decided March 29, 1926
    465. ERROR — When accord and satisfaction is plead, it is incumbent upon the defense to show same and it is error for a trial judge to direct a verdict at close of plaintiff’s testimony.
    Attorneys — George W. Welch and , Fyffe Chambers for Morton; Bettman, Riesenberg, Cohen & Steltenpohl for Clothing Co.; all of Cincinnati.
   HAMILTON, J.

Philip Morton brought suit against the Siebler Clothing Co. to recover upon certain advertising contracts extending over a period of years. The Clothing Co. became financially embarrassed and attempted to rescind their contract and to pay only for the advertising already done. There was a dispute between the parties as to the correct amount" for this service and finally the attorneys for the Clothing Co. sent $2j600 in money and notes to Morton, enclosing a letter in which they stated this was in satisfaction of all claims against the Clothing Co.

The money was put in the bank and the notes discounted; but some time after this, a letter from the attorneys to Morton in reference to his matter showed that negotiations had not been closed. The Hamilton Common Pleas at the close of Morton’s evidence directed a verdict for the Clothing Co. and error was prosecuted by Morton, who contended that the defense of the Clohting Co. should have been heard and the case allowed to go to the jury. The Court of Appeals held:

1.Morton claimed that the check and notes were credited to payment of amounts then due, and they had nothing to do with rights under the contract for the two succeeding years.
2. The claim of the Clothing Co. being accord and satisfaction it was incumbent upon them to show same.
3. The Clothing Co. should have been made to put in their defense and the case should have gone to the jury.
4. Directing the verdict in favor of the Clothing Co. was prejudicial error.

Judgment reversed and cause remanded.

(Buchwalter, P. J., & Cushing, J., concur.)  