Myerl v. Gutzeit

• Decision Date: 08 February 1935
• Citation: 50 Ohio App. 83,197 N.E. 503
• Parties: MYERL et al. v. GUTZEIT.
• Court: Ohio Court of Appeals

197 N.E. 503

50 Ohio App. 83

MYERL et al. v. GUTZEIT.

Court of Appeals of Ohio, Sixth District, Erie.

February 8, 1935

Action by Julius J. Gutzeit against William Myerl and another. To review the judgment, defendants bring error.-[Editorial Statement.]

Reversed and remanded.

Syllabus by the Court .

1. A seller at a public auction sale, who warrants that goods sold are free from defect, when in fact a defect exists, is bound by his warranty if the purchaser relies thereon, even though the purchaser inspects the article sold.

2. A charge requiring defendant, in a suit to recover the purchase price of goods sold, to establish his claim of breach of warranty ‘ to the satisfaction’ of the jury by a preponderance of the evidence, requires too high a degree of proof and is erroneous.

Hertlein & Schwer, of Sandusky, for plaintiffs in error.

Young & Young, of Norwalk, for defendant in error.

RICHARDS, Judge.

The original action was commenced in the court of common pleas by Julius J. Gutzeit, who set forth in his petition two causes of action. The first was based upon a promissory note, on which he claimed a balance due of $166 and interest, and the second was to recover for boarding a horse for the defendants. On trial of the case he recovered a judgment for the amount claimed in the first cause of action only.

The evidence discloses that about March 22, 1932, Gutzeit conducted a public sale of certain livestock on his farm, and that William Myerl, plaintiff in error, purchased at that sale a horse, two sheep, and a Jersey heifer. In payment for this stock, William Myerl, with his father as surety executed a promissory note to Gutzeit covering the stock purchased, and this note has been fully paid except for the balance of $166, claimed to be due as the purchase price of the horse. In offering the horse for sale the auctioneer, at the direction of Gutzeit, the owner, announced to prospective buyers that the horse was sold ‘ sound and a runaway.’ The defendants in their answer aver that the horse was diseased and unhealthy and was what is commonly known as a ‘ panter,’ all of which was well known to Gutzeit. They aver that they relied on the warranty made at the time of the purchase, and that they first discovered this condition when they undertook to work the horse, and that they then immediately rescinded the sale and returned the horse to Gutzeit. The only material controversy in this case relates to the condition of the horse, and whether he was, at the time of the sale, a diseased or a sound animal. Very substantial evidence was introduced on both sides of this question, and after a careful reading of the record we are unable to say that the verdict and judgment are manifestly against the weight of the evidence.

It is urged, however, that the trial judge committed prejudicial error in giving to the jury in charge the following instruction: ‘ The court further instructs the jury that if the horse was not sound, and the defendant William Myerl knew of the defect in the horse, or could, by the exercise of ordinary care, have known of said defect, then your verdict would be for the plaintiff, provided said defect or defects, if they existed,...