
    No. 56
    FERTEL-D. W. CO. v. SCHONBERG
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 4969.
    Decided Sept. 29, 1924
    465. ERROR—Verdict for plaintiff on petition and cross-petition being indivisible, cannot be affirmed as to petition and reversed as to cross-petition.
    Published only in Ohio Law Abstract
    Attorneys—Bulkley, Hauxhurst, Jamison & sharp, for Fertel-Daughler-Wilson Co.; Harry F. Glick, for Schonberg; all of Cleveland.
   SULLIVAN, J.

Epitomized Opinion

Action by Sconberg to recover for certain metal goods for which it was claimed there was a balance due of $3963.25 with interest from July 1, 1917. An answer and cross-petition was filed for damages on breach of contract growing out of the sale of metal goods. A verdict was rendered for Schonberg on his petition and for him on the cross-petition of the company and a judgment entered in his favor in the sum of $4086.61. The evidence showed that Schonberg failed to deliver goods because of his inability to do so but he attempted to avail himself of the defense that inasmuch as installments under the contract were not paid for as determined therein upon the delivery of the goods his default to furnish the goods was in law excusable. On error proceedings the court of appeals reversed the judgment and remanded the cause holding:

1. As the verdict is indivisible the court cannot affirm the verdict as to the plaintiff’s case and reverse it as to the defendant’s cross-petition and is therefore compelled to look at the record as it relates to the claim of the cross-petitioner who claims damages for breach of contract.

2. The record with respect to claim for damages for breach of contract leaves the verdict clearly and manifestly against the weight of the evidence.  