Epitomized Opinion

This action was brought in the Common Pleas by Abell against Thomas and Armstrong and the Vinton Coal Co., to recover a commission alleged to be due him upon the sale of coal properties. He recovered a verdict against the two individuals. Error is here prosecuted by them to reverse the judgment.

The issue raised was as to whether T. and B. made individual contracts with the plaintiff for the payment of the commission. Upon this the trial court charged:

“If you find by a preponderance of the evidence that they (T. and A), did not personally enter into the contract as claimed by the plaintiff your verdict should be in their favor. If, however, you should find from the evidence that they acted as officers of the coal company, within the scope of their authority and not in their individual capacity, but that said company entered into the contract with the plaintiff, then your verdict should be against said company and not against said A. and T. as individuals.”

1. The Appellate Court held that there was preju-dical error in the charge in placing the preponderance of evidence upon the defendants T. and A., as the burden of proof under, the pleading was upon plaintiff to prove that T. and A. entered into a personal contract with him.

2. The court refused to confirm the judgment on the ground that substantial justice was done, holding that if the judgment was against Thomas alone there might be some grounds for so doing, but as the parties are jointly sued and a joint recovery had, the judgment should be reversed as to both T. and A.