
    STEARN CO v CAMPBELL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10180.
    Decided November 11, 1929
    Messrs. Mooney, Hahn, Loeser & Keough, Cleveland, for Steam Co.
    Mr. A. F. Counts, Esq., Cleveland, for Campbell.
   PER CURIAM

Stripped of all the verbiage there is really but one issue in this case, namely, what was the agreement between the parties? The plaintiff under the law has the burden of proving his case by a preponderance of the evidence. John M. Campbell, therefore, had the burden of proving by such preponderance of the evidence that the agreement between him and The Stearn Company was that The Steam Company will replace with a new coat the coat purchased. An examination of the testimony given by John M. Campbell shows that his statement lacks definiteness on that point.

The defendant company definitely asserts that it at no time agreed to replace the coat with a new fur coat. , It insists that all that was agreed upon between the parties was that The Steam Company was to repair the coat.

Our unanimous conclusion is that John M. Campbell’s rather indefinite statement lacks probability, and that the version given by The Stearn Company seems the more probable and reasonable under the circumstances. In our opinion the judgment of the Municipal Court is manifestly against the weight of the evidence. For that reason said judgment of the Municipal Court is ordered reversed and the case remanded for a new trial.

Vickery, PJ., Levine and Sullivan, JJ., concur.  