
    Korona Jewelry & Music House v. Loveland.
    
      Court of Appeals — lAmited to one reversal upon weight of evidence — Negotiable instruments — Preponderance of evidence sufficient to sustain defense of fraud — Charge to jury— Error in special request not cured by general charge, when — Error to charge clear and convincing evidence required, when — Charge that jury must be “satisfied,” erroneous — Sales—Charge requiring purchaser to promptly return goods after discovering fraud, prejudicial — Section 8428, General Code.
    
    1. ' Where former verdict against defendant in case between same parties was set aside by trial court as contrary to evidence, Court of Appeals cannot set aside second ver- ‘ diet against defendant as against weight of evidence.
    2. Charge that fraud in suit on notes is an affirmative defense, and proof to sustain it must be clear and convincing, held erroneous, under rule requiring fraud to be proved only by preponderance of evidence.
    3. General charge that defense of fraud to suit on notes could be determined by preponderance of evidence would not cure error in given requested instruction before argument requiring clear and convincing proof of fraud.
    4. General charge, requiring defense of fraud to notes to be proved by preponderance of evidence, and further that proof must be clear and convincing, held erroneous and prejudicial.
    5. Charge on degree of proof that “jury must be satisfied” calls for higher degree of proof than is required in civil cases.
    6. In action on notes given for purchase price of goods, general charge requiring defendant, on discovery of fraud, to take prompt action and return goods not in accordance with his' understanding, held prejudicial error, as placing too great burden on defendant to return goods, since under Section 8428, General Code, purchaser is only held to have accepted goods if he did any act in relation to them inconsistent with ownership of seller, or if he retained goods after lapse of reasonable time without notice of rejection to seller.
    (Decided January 3, 1927.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Smith, Baker, Effler & Eastman and Mr. Wayne E. Stickier, for plaintiff in error.
    
      Mr. A. E. Simmons, for defendants in error.
   Richards, J.

An action was brought by Theodore O. Loveland and James L. Ricard, doing business as the Brenard Manufacturing Company, to recover of the Korona Jewelry & Music House an amount claimed on certain promissory notes. These notes and an accompanying contract were given for the purchase price of certain Claxtonola phonographs, and the amended answer and cross-petition sets up numerous claimed fraudulent representations made by the agent of the Brenard Manufacturing Company, whereby defendant below was induced to make the purchase.

The trial resulted in a verdict and judgment in favor of the plaintiff for $509.10, and this judgment is sought to be reversed for numerous reasons.

Plaintiff in error contends, among other grounds, that the judgment should be reversed because it is against the weight of the evidence; but the record discloses that a former verdict was rendered in the case against this plaintiff in error, which was set aside by the trial court on the ground that it was contrary to the evidence. One verdict having thus been set aside as being contrary to the evidence, this court is powerless to reverse the judgment on that ground. Cleveland Ry. Co. v. Trendel, 101 Ohio St., 316, 128 N. E., 136; Rolf v. Heil, 113 Ohio St., 113, 148 N. E., 398.

It is further insisted that the judgment must be reversed because of error in the charge of the court to the jury. At the request of the Brenard Manufacturing Company the court charged the jury before argument 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, in so far as the degree of proof is concerned, as has often been held by the Supreme Court and by this court. In Jones, Stranathan & Co. v. Greaves, 26 Ohio St., 2, 20 Am. Rep., 752, the Supreme Court held that in the trial of civil actions, where the defense is based on fraud, the issue may be determined by a preponderance of the evidence, and that case has been many times followed.

It is, however, urged that in the general charge the court instructed the jury that the issues could be determined by a preponderance of the evidence, and it is claimed that this would prevent the instruction given before argument from being reversible error. If the court had so charged, the erroneous instruction would not be relieved of its prejudicial character, because the jury would be unable to tell which instruction to follow. In the general charge the court did say to the jury that the burden is upon the defendant to prove the misrepresentations by a preponderance of the evidence, and immediately thereafter used the following language:

“And, as I said a moment ago, it must be proved by a preponderance of the evidence; the proof in that particular to establish fraud or false representations or misrepresentations must be clear and convincing.”

We think the instructions on the subject of degree of proof required to establish fraud were erroneous and prejudicial.

In another part of the general charge the court 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. In C., II. & D. Ry. Co. v. Frye, 80 Ohio St., 289, 88 N. E., 642, 131 Am. St. Rep., 709, it was held to be misleading and erroneous to instruct the jury that it “must be satisfied by the ‘preponderance of evidence.’ ”

The general charge of the court is prejudicially erroneous in the following statement:

“It was the duty of the defendant, therefore, in this case, upon the discovery of any fraud, to take prompt action, and to return to the company these' goods, if they were not in accordance with his understanding of the agreement as he had been led to believe by the plaintiff * *

This charge puts an undue burden on the defendant below, who was not bound, upon discovery of the fraud, to return the goods to the company. By virtue of the language of Section 8428, General Code, the purchaser would be held to have accepted the goods only if he did any act'in relation to them inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retained the goods without intimating to the seller that he had rejected them. The same question was previously before this court in the case of Brenard Mfg. Co. v. Beeckel, 24 Ohio App., 282, 156 N. E., 217.

We have examined the other claimed errors, but find none prejudicial to the plaintiff in error. However, for the reasons given, the judgment must be reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Cuthbert and Williams, JJ., concur.  