(27 Ohio App. 235)

POTTS v. PARK INV.CO.

Court of Appeals of Ohio, Cuyahoga County. Nov. 28, 1927.

1. Landlord and tenant 49(2)-Evidence that tenant orally agreed to execute lease held properly excluded where petition alleged contract was in writing.

In action for damages for tenant's breach of contract to execute a lease, evidence that tenant orally agreed to execute the lease held properly excluded where petition alleged that contract was in writing.

2. Evidence 200-That defendant had not denied he was bound by lease when statement was made to him held inadmissible, since admission, if any, was of a conclusion of law.

In action for damages for tenant's breach

of contract to execute a lease, court's refusal to permit plaintiff to introduce testimony of an officer of plaintiff corporation to the effect that he had told defendant that defendant was already bound on lease by letters which parties had exchanged and that defendant did not deny this held proper, since, if defendant's failure to deny correctness of assertion was an admission, it was an admission of a conclusion of law.

3. Contracts 176(6)-Construction of correspondence as forming contract was for court, where it was undisputed.

In action for breach of contract to execute a lease in which letters of the parties to each other were introduced, construction of such correspondence as to whether contract was formed thereby was for court; there being no dispute as to fact that the correspondence had been exchanged.

4. Landlord and tenant 22 (2) Correspondence between landlord and tenant relating to lease of apartment held to show that minds of parties never met so as to create valid lease.

Where letter of tenant, instead of agreeing to accept lease of apartment occupied by him, contained a counterproposition to lease such apartment with an option to vacate it at any time for exchange of other apartments provided one of them became vacant, which condition was never met by landlord and was rejected by it in a subsequent letter, held, that minds of parties never met so as to create valid contract of lease; landlord's subsequent assertions that tenant was liable under principle of holding-over being immaterial.

Action by the Park Investment Company against Ben H. Potts. Judgment for plaintiff, and defendant brings error. Reversed and rendered.-[By Editorial Staff.]

lease, comes here on error to the court of common pleas, which at the trial below directed a verdict and rendered a judgment for $700, and interest, against Ben H. Potts, defendant below, called defendant here for convenience throughout the course of this opinion, in favor of the Park Investment Company, plaintiff below, here again called plaintiff.

The plaintiff was the owner of certain land and buildings known as the Oxford Apartments, at 2100 Surrey road, in Cleveland Heights, and defendant was, by virtue of a certain written lease, the tenant of suite 6 on the third floor of said apartment building for a specified term of 10 months, ending August 31, 1924, at a specified rental of $140 a month.

The petition alleges that on August 14, 1924, while defendant was still occupying suite 6, the plaintiff made defendant a written offer to renew the lease for a period of 1 year, beginning September 1, 1924, and that on August 20, 1924, defendant made a written acceptance of the offer, and occupied the suite under said agreement during the month of September, paying the rent therefor, but thereafter vacated said premises and repudiated the contract, to plaintiff's damage in the sum of $700 rental for the months of October to February, inclusive, with interest from December 1, the average due date on the monthly installments of rent.

Defendant admits the receipt of the written offer, and admits that he occupied the suite during the month of September, 1924, and that he paid the rent therefor; but he denies that he accepted in writing, or in any other manner, the plaintiff's offer to renew the lease. It is conceded that defendant vacated the apartment before the end of September.

At the trial below there were admitted in evidence, without objection, the lease for the term ending August 31, 1924, and six letters received by defendant from the plaintiff, and two letters received by plaintiff from the defendant. These nine documents constitute all the material evidence bearing on the issue. No exceptions were taken to the trial court's rulings on question of evidence, except in three instances where the plaintiff excepted to the exclusion of certain testimony offered by it as to three separate conversations between the defendant and certain officers of plaintiff corporation. Although the party whose proffered evidence was excluded in those three instances was the prevailing party below, we shall pass upon his exceptions, as we shall enter the judgment here

MILLS, J. This cause, being an action for damages for breach of contract to execute a

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the lease. That evidence was properly excluded, since the petition alleged that the contract was in writing.

[2] The trial court refused to permit plaintiff to introduce the testimony of an officer of the plaintiff corporation to the effect that, on or about September 15, "he told Mr. Potts that he was already bound by the letters which they had exchanged, and that Mr. Potts did not deny this." Plaintiff's assertion that defendant was bound by the letters already exchanged between the parties was the statement of a conclusion of law. If defendant's failure to deny the correctness of that assertion be regarded as an admission, it was an admission of a conclusion of law. As such, it was properly excluded. Chamberlayne on Evidence, §§ 1293, 2325, 2365, and 2367, and cases there cited.

Plaintiff's case therefore rests entirely upon the correspondence between the parties. The first three letters were as follows:

"Cleveland, O., August 14, 1924.

"Mr. Benjamin H. Potts, Suite No. 6, Oxford Apts., Cleveland Heights, Ohio-Dear Sir: We beg to call your attention to your lease covering suite No. 6 in the Oxford Apartments, which expires as of the last day of August next. Rental on this suite for the year beginning September 1st next and ending August 31, 1925, will be $140 per month. All of the other terms and conditions of tenancy or lease to be the same as in your present lease.

"In order to obtain the apartment at this rental for the additional term indicated above, it will be necessary for you to notify us at once of your acceptance of lease for 1 year as above outlined. On receipt of such notice, we will immediately prepare lease, submit same to you, and endeavor to obtain your signature thereto. If you fail to sign and return the lease to us when submitted, as tenants sometimes do, we are to have the right, if we so wish, to elect to hold that this letter and notice of acceptance by you constitute a lease as above provided, or we may hold that no lease or contract for lease exists.

"If you do not accept a further lease for 1 year as above stipulated and we do not rent the premises to others and by any combination of circumstances, you continue in the premises after the last day of September next, such continuance will be held by us to be an agreement on your part for extension of 1 year of your present lease by reason of what is termed a 'hold-over,' at the rental stipulated above and under all the other terms and conditions mentioned in your present lease. If you have arranged for other quarters and do not wish to continue as a tenant, we will appreciate it if you will so advise us on receipt of this letter..

"We wish to express, further, our appreciation of your past tenancy and to thank you therefor, also to express the wish that you may continue to be numbered among the tenants of the apartment.

"Very truly yours,

"Park Investment Company, "By J. G. Heckelman."

"Yours very truly,

On September 2 plaintiff wrote to defendant enclosing duplicate lease forms, with a request for defendant's signature and a promise of plaintiff's signature.

On September 12 plaintiff again wrote to defendant requesting him to sign the lease promptly.

The next letter in the series reads as follows: "Cleveland, O., Sept. 18, 1924.

"Mr. Ben J. Potts, Suite No. 6, Oxford Apts., 2100 Surrey Road, Cleveland Heights, OhioDear Sir: In accordance with your conversation had with the writer on Monday, we have had displayed in front of the Oxford Apartment a 'For Rent' sign and will use our best endeavors to secure a tenant for suite occupied by you in the Oxford Apartment; namely, suite No. 6.

"In accordance with our letter of August 14th, copy of which is attached, you are, as the writer advised you, obligated to us for another year under what is known as a 'hold-over.' We are hopeful, however, to obtain a substitute tenant for you, thus minimizing the cost to you in the matter, and in the event we are able to do so, there will be no charge for our service in making such rental. We suggest, however, that

"Motion to Dissolve Restraining Order. "Defendants ask that the restraining order heretofore entered by this court be dissolved, and that the petition herein be dismissed, for the reason that said petition does not state facts which show a cause of action, and that the court make such other and further orders as may be just."

This motion was submitted upon an agreed statement of facts and the briefs of counsel.

In brief, it appears from such agreed statement of facts that the parties entered into a contract for the purchase of certain real estate, by which contract the plaintiffs agreed to purchase from the defendant Thompson the real estate in question for the sum of $6,500; that plaintiffs are in possession of said real estate, and have paid thereon the sum of $1,780, plus the cost of certain improvements; that, after they entered into possession of said premises, plaintiffs claim, they discovered that the premises were defective in certain respects; and that the defendant Thompson failed to correct such defects, after being requested so to do, whereupon plaintiffs discontinued making the payments specified in the contract.

The plaintiffs claim that the municipal court had no jurisdiction to render the judgment in question; that the municipal court was limited to such jurisdiction as might be exercised by a justice of the peace in a case of this nature.

Section 10232, General Code, provides that justices shall not have cognizance (6) of any action "in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in the next preceding section."

Section 1558-51, General Code, provides that:

"The municipal court shall have and exercise original jurisdiction within the limits of the city of Columbus as follows: (1) In all actions and proceedings of which justices of the peace have or may be given jurisdiction. (8) All actions in forcible entry and detention of real property."

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The contract in question contained, among other things, the following provision in reference to forfeiture, namely:

"On default in the payment of one of the above installments of the purchase money for a period of sixty (60) days after it becomes due, first party reserves the right to declare this contract null and void without notice thereof to second party and without demand of payment on him, and in such event, first party may reenter and repossess the above described premises and be seized thereof as of his first and former estate, and all payments made hereunder by second party, shall be retained by first party for rent for said premises, and as liquidated damages for the breach of this contract, and on the breach of any condition of this contract by second party, he shall immediately surrender said premises and shall deliver pos

session thereof, and he shall become a tenant at will of said premises at the option of first party and shall vacate said premises without legal proceedings and without cost to first party."

The above state of facts presents for determination the question whether the municipal court of the city of Columbus in an action for forcible detention can enforce the forfeiture clause in a contract for the sale of real estate.

Plaintiffs merely seek by their petition, which was filed in the court of common pleas and appealed to this court from the judgment of the court of common pleas, to enjoin the enforcement of the judgment of the muncipal court in the forcible entry and detention case.

This is not an action to review the correctness of the judgment of the municipal court in such forcible entry and detention case, but, as above stated, is an original action brought to enjoin the enforcement of the judgment of the municipal court. We do not have before us the record as to what transpired in the municipal court upon the hearing of this case.

The correctness of the judgment of the municipal court in such forcible entry and detention case could have been tested by a writ of error. See reasoning in case of Poulos v. Toledo Labor Building Co., 22 Ohio App. 426, 154 N. E. 57, and in case of Rocca v. Rosenstiel, 20 Ohio App. 367, 152 Ν. Ε. 677.

The case might be disposed of by holding that, under the facts disclosed by the agreed statement of facts, namely, the absence of any substantial equitable grounds, the plaintiffs' remedy was to prosecute error from the judgment of the municipal court.

We have been requested, however, by counsel to express an opinion, for the guidance of the municipal court, as to the jurisdiction of such municipal court where a forfeiture of the kind described herein is involved. The question thus presented is whether the judgment of the municipal court is absolutely void under the circumstances disclosed by the record. We have been referred to the case of Hughes v. Kline, 16 Ohio N. P. (N. S.) 493, in which case it is held that a magistrate has jurisdiction where there is a forfeiture clause contained in the real estate contract.

Counsel for plaintiffs rely largely upon the decision of our Supreme Court in the case of Crafts v. Prior, 51 Ohio St. 21, 36 Ν. Ε. 1070. In regard to this last-mentioned case, we think it sufficient to state that there was no forfeiture involved in that case in so far as the decision discloses.

From a consideration of all of the authori

ties cited, of the sections of the Code involved, and of the facts disclosed by the record in this case, we are of opinion that the municipal court had jurisdiction in the forcible entry and detention suit to render the judg