
    Weinberg et al., d. b. a. L. Weinberg Baking Co., v. Hartzell, d. b. a. Standard Oven Co.
    
      Contracts — Breach of warranty — Sale of baking ovens — Evidence — Seller permitted to operate ovens to establish compliance with warranty — Buyer’s evidence that heat reduced after test, cumulative and inadmissible — Cancellation of purchase notes and damages for breach of warranty— Evidence of improper operation of ovens, competent.
    
    1. Where seller of baking ovens was permitted by court to take charge of ovens to bake different kinds of bread used by buyers to show that ovens complied with warranty, latter held not entitled to introduce rebuttal evidence that, after test, heat in ovens was so reduced that no further baking could be done, where such evidence was merely cumulative of evidence in chief.
    2. In action to cancel, for breach of warranty, notes given for baking ovens, evidence of improper operation of oven held competent.
    (Decided February 8, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. John C. Hermann, for plaintiffs in error.
    
      Messrs. Mattheivs S Matthews, for defendant in error.
   By the Court.

The action was brought by plaintiffs in error as plaintiffs below against A. F. Hartzell, to enjoin him from prosecuting a certain action for the collection of promissory notes, which had been executed by the plaintiffs in payment for certain baking ovens, erected by defendant, and also for a decree canceling said notes, and for damages for breach of contract.

It appears from the evidence that the. plaintiffs conducted a bakery, and made a contract with the defendant to build two ovens for them, in the best workmanlike manner, and to give full satisfaction for all the baking purposes of the plaintiffs.

Part of the agreed price for the ovens was paid according to contract when the ovens were erected, and notes were given for the balance.

Plaintiffs claiming that the ovens did not meet their requirements, the defendant dismantled and rebuilt both ovens. Several notes, one of which was payable each month, were paid. The plaintiffs refused to make further payments, claiming that the ovens were not satisfactory, and suit was filed to collect the amount called for in some of the notes. Later another suit was filed on other notes; both of these actions being commenced in the municipal court.

Plaintiffs then filed this action in the^ court of common pleas, praying for an injunction, etc., as above stated.

The defendant, by answer, denied the allegations of the petition, and asked for judgment on the notes.

The cause was submitted to a jury, which returned a verdict for the defendant for the amount claimed on the notes, and also made a special finding that the plaintiffs did not act in good faith in determining that the ovens did not give full satisfaction for their baking purposes. Judgment was entered upon the verdict. Error is now prosecuted to reverse this judgment.

Two grounds of error are complained of:

(1) That the court erred in refusing to admit plaintiffs’ evidence on rebuttal.

(2) That the court erred in overruling plaintiffs’ motion to strike out all evidence offered by defendant, except that as to the good faith of the plaintiffs.

During the trial and before plaintiffs’ case in chief was closed, the defendant asked the privilege of taking charge of the ovens for baking the different kinds of bread used by the plaintiffs, so as to bring samples into court. No objection being made by plaintiffs, the court granted such permission and a test was made. After the close of defendant’s case, the plaintiffs sought to introduce evidence to the effect that, after the test made, the heat in the ovens was so reduced that no further baking could be done in them. The court ruled that this was not proper testimony in rebuttal. There was no denial by the court of the right of plaintiffs- to introduce evidence that related to the test made under the court’s order, but the plaintiffs were not allowed to introduce evidence as to the heat of the ovens after the test was finished. Plaintiffs, in chief, had introduced evidence for the purpose of showing that the ovens did not meet their requirements, and such additional evidence as was offered in rebuttal would only have been cumulative, and not proper evidence in rebuttal.

We find no error in the ruling of the court in this matter.

The second ground of error urged is that the court should have sustained the motion made by plaintiffs’ counsel at the close of defendant’s evidence. The motion was as follows: “I now move that all evidence offered on behalf of the defendant, except that as to the good faith of the defendant in determining the satisfaction of these ovens, be stricken out and excluded.”

Counsel evidently intended to move to strike out all evidence offered by defendant, except as to the good faith of the plaintiffs.

The motion did not set forth or specify just what answers were to be stricken out.

Plaintiffs contend that all evidence as to whether or not plaintiffs properly operated the steam box had no bearing on the case. However, if the dough, as prepared in the steam box, was improperly prepared, so that it would make the loaves soggy on top, and' therefore a uniform baking could not be had in any oven, this certainly was competent evidence to be submitted to the jury.

The motion was therefore properly overruled.

Finding no error prejudicial to the plaintiffs in error, the judgment of the court of common pleas is affirmed.

Judgment affirmed.

Buchwalter, P. J., Hamilton and Cushing, JJ., concur.  