Epitomized Opinion

Published Only in Ohio Law Abstract

The record in this proceeding shows that Phillip Stern during infancy purchased from the Chevrolet Motor Co. a touring car for-$780.05, paying therefor cash $296.05 and $484 by a note payable in sums of $40.34.

Stern, after holding and using the ear some months, disaffirmed the contract and brought suit in the Cleveland Municipal Court to recover the cash payment and certain sumís he had paid on the note. That court gave him judgment for the full amount of his claim. Stern alleged, in his statement of claim, that on or about April 15, 1922, he returned the automobile to the company, which was accepted by them, and demanded the return of his money. The record shows that when he' disaffirmed the contract he attempted to restore the car to the motor company by leaving it at the place from which he received the car when he purchased it. This place was then occupied and used as a place of busness by another and different person, not the agent or the representative of the motor company, and there was in fact no restoration of the car. The Court of Appeals reversed the trial court, holding:

Restoration both under the pleading and as a matter of law being a condition precedent to the right of recovery, Lemmon v. Beeman, 45 OS. 505, it follows that the judgment is not supported by sufficient evidence, and for that reason it is reversed, and the case is remanded to the Municipal Court for further proceedings according to law.