
    No. 188
    MASON CANNING CO. v. BRANDENBURG et
    Ohio Appeals, 1st Dist., Warren Co.
    No. 123.
    Decided Nov. 8, 1926
    1273. WITNESSES — Where testimony of witnesses is in direct conflict, and of such character that only a jury could determine the question, the verdict is in accordance with the view that the jury entertained as to the credibility of witnesses.
    First Publication of this Opinion
    Attorneys — Eltzroth, Maple & Maple for Company; Shawhan, Brown & Brandon, for Brandenburg; all of Lebanon.
   CUSHING, J.

Robert and Stanley Brandenburg brought an action in the Warren common pleas to recover $243.34 for a breach of contract to grow and deliver to the Mason Canning Co., twenty acres of sweet corn.

The defendant set forth that the Branden-burgs had some conversation with its representative to the effect that they were late in planting and if they did so it would be at their own risk. A judgment was rendered in favor of Brandenburg, et al, although no reply was filed to the answer. The defendants in error cited authorities to the effect that where a reply has not been filed, and the case proceeds to trial, and the jury returns its verdict, without objection until after judgment of the common pleas court, the judgment will not be reversed, on the ground that the answer was not denied by the reply. Lovell v. Wentworth, 39 OS. 614; Woodward v. Sloane, 27 OS. 692.

The Court of Appeals held:

Where the testimony of witnesses offered at the trial is in direct conflict, and is of such’ character that only a jury, under the law of Ohio, would be authorized to determine the question, the verdict is in’ accordance with the view that the jury entertained as to the credibility of witnesses, and therefore will not be disturbed.

Judgment affirmed.

(Buchwalter, PJ., and Hamilton, J., concur.)  