
    No. 62
    KORONA JEWELRY CO. v. LOVELAND et
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1786.
    Decided Jan. 3, 1927
    1235. VERDICTS — Where; one verdict is set aside because contrary to the weight of the evidence a reviewing court is powerless to set aside another verdict in the same case for the same cause.
    480. EVIDENCE — Where court in its charge says fraud is an affirmative defense which must be proven by clear and convincing evidence, it is error, for same need only be proven by a preponderance of the evidence.
    557. FRAUD — One who receives goods bought through fraudulent inducement need not return same at once in order to maintain a defense of fraud.
    Attorneys — Smith, Baker, Effler & Eastman and Wayne E. Stichter for Korona Co.; A. E. Simmons, for Loveland Co.; all of Toledo.
   RICHARDS, J.

This action was originally brought in the Lucas Common Pleas by Theodore C. Loveland and James L. Ricard, d. b. a. The Brenard Mfg. Co. to recover from the Korona Jewelry & Music Co. an amount claimed on certain promissory notes. These notes were given in connection with the purchase of victrolas and the answer and cross-petition of the Korona Co. sets up certain fraudulent representations made by the agent of the Brenard Co. whereby they were induced to make the purchase. The trial resulted in a verdict and judgment for $509.10 in favor of the Brenard Mfg. Co.

This judgment is sought to be reversed upon several grounds of error and the Court of Appeals held:—

1. The Korona Co. contends that the judgment should be reversed because it is against the weight of evidence, but the record discloses that a former verdict was set aside in this case and one verdict having thus been set aside as being contrary to the evidence, this court is powerless to reverse the judgment upon that ground. 101 OS. 316; 113 OS. 113.

2. It is insisted that the judgment must be reversed because of error in the charge of the court to the jury where at the request of the Brenard Co. it charged that fraud is an affirmative defense and the proof to sustain it must be clear and convincing. This is an erroneous statement of the law as far as the degree of proof is concerned, the issue may be decided by a preponderance of the evidence. 26 OS. 2.

3. In another part of the court’s charge, it said to the jury in referring to the degree of proof required “that the jury must be satisfied.” This calls for a higher degree of proof than is required in civil cases. 80 OS. 289.

4. The general charge of the court is further prejudicially erron'eous where' it said that when one discovers fraud, prompt action must be taken in returning the goods. 3 Abs. 307.

5. For the reasons given the judgment is reversed and cause remanded for new trial.

Judgment reversed.

(Culbert and Williams, JJ., concur.)  