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(27 Ohio App. 235)

POTTS v. PARK INV. CO.

lease, comes here on error to the court of common pleas, which at the trial below directed a verdict and rendered a judgment for

Court of Appeals of Ohio, Cuyahoga County. $700, and interest, against Ben H. Potts, de

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.]

Dustin, McKeehan, Merrick, Arter & Stewart, of Cleveland, for plaintiff in error.

Thompson, Hine & Flory, of Cleveland, for defendant in error.

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

fendant below, called defendant here for convenience throughout the course of this opinion, in favor of the Park Investment Company, plaintiff below, here again called plain

tiff.

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 that the court below should have entered.

[1] The trial court refused to permit plaintiff to introduce the testimony of one of its officers to the effect that on either the last day of August or the first day of September, in two separate conversations over the telephone, the defendant orally agreed to execute

(161 N.E.)

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. ChamAs such, it was properly excluded. berlayne 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."

"Cleveland, Ohio, August 20, 1924.

"Park Investment Company, Cleveland, Ohio. Attention Mr. J. G. Heckelman-Gentlemen: Referring to your letter of August 14th, it is our intention to remain in property at 2100 Surrey road, and you can prepare lease accordingly.

"There is only one thing, Mrs. Potts has not been at all well and it is now quite a task for her to climb to the third story and we would like to know if we have first choice on second story, either building, preferably the one toward Euclid boulevard. Do you know whether either of these four tenants contemplate moving? Otherwise we can remain in our present quarters until such time as there is a vacancy in one of the four apartments mentioned. We might also consider one of the first floor apartments.

"Will you write me in preparing lease for present quarters, giving us the assurance we can have the refusal of apartments as mentioned above if vacated, until we make selection of some particular apartment. "Yours very truly,

"B. H. Potts, 2100 Surrey."

"August 22, 1924.

"Mr. B. H. Potts, 2100 Surrey Road, East Cleveland, Ohio.-Dear Sir: We have your favor of August 20th, with reference to your further tenancy in the Oxford Apartments, and we will prepare lease and tender same to you for your signature within the next day or two. "We regret that we cannot give you an opWe will, however, bear tion on other space. you in mind should there be any vacancies. In this connection we would advise that the apartments on the Euclid boulevard side command a greater rental than you are now paying. "Thanking you for your tenancy, "Very truly yours,

"The Park Investment Company, "By

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

you offer this suite for rent through some of the real estate agents and also suggest that it might be advisable to advertise the suite. Subtenant, of course, would have to be satisfactory to us, however obtained, and consent to subletting given at that time.

"In the event that you decide to remain in the premises, we will be glad to have you so advise us and we would also appreciate it if you would keep us informed as to about when the premises will be available for the occupancy of others. "Very truly yours,

"The Park Investment Company."

On September 25 defendant wrote a letter denying all liability "as a hold-over or in any other way," and giving notice of his intention to vacate.

On November 24 plaintiff wrote another letter, repeating the claim that defendant was liable under the "law of hold-over."

Although plaintiff's letters of September 18 and November 24 advance the claim that defendant was bound, under the principle of holding-over, by reason of his occupancy of the suite after the last day of August, that claim has been withdrawn.

At the conclusion of all the testimony, the defendant below moved that the court direct a verdict in his favor. That motion was overruled. Thereupon the plaintiff made a motion, which was granted, for an instructed verdict in his favor. The court below erred in granting plaintiff's motion and in overruling the motion for an instructed verdict in favor of the defendant.

[3] The question at issue was whether or not the defendant had agreed, in writing, to execute a year's lease of suite 6. The negotiations for a lease were by correspondence. This correspondence was in evidence, and it constituted all the evidence bearing on the issue. There being no dispute as to the fact that this correspondence had been exchanged, its construction was for the court.

[4] This court, construing the correspondence, holds that it shows that the minds of the parties never met, and that there was, therefore, no contract.

Defendant's letter of August 20 was not an acceptance of the offer made in plaintiff's letter of August 14. Defendant, instead of agreeing to accept a lease of suite 6, says: "It is our intention to remain in property at 2100 Surrey road." The "property at 2100 Surrey road" included numerous suites or apartments. Defendant's letter constituted a counterproposition to lease suite 6, with an option to vacate it at any time in exchange for one of the other apartments mentioned in the letter, provided one of those other apartments became vacant. He used the words: "There is only one thing." That phrase, in view of the context, can only be construed to mean: "There is only one condition to my acceptance." That condition

was never met by the plaintiff. It was rejected by plaintiff in its letter of August 22. Plaintiff's letters of September 2 and September 12, being mere solicitations, did not change the situation. Plaintiff's subsequent

assertions that defendant was liable under the principle of holding-over do not strengthen his present contention that the defendant was bound by a written agreement.

The judgment of the court below will be reversed, and judgment entered here for the plaintiff in error, who was the defendant below.

Judgment reversed, and judgment for plaintiff in error.

HAMILTON, P. J., and CUSHING, J., con

cur.

Judges of the First Appellate District, sitting in place of Judges SULLIVAN, VICKERY, and LEVINE, of the Eighth Appellate District.

FELGER et al. v. THOMPSON et al. Court of Appeals of Ohio, Franklin County. Feb. 16, 1928.

Courts 188(4)-Columbus municipal court has jurisdiction to enforce forfeiture clause in contract for sale of realty, and judgment thereon is not void (Gen. Code, §§ 10232, 1558-51).

The municipal court of the city of Columbus has jurisdiction in an action to enforce a forfeiture clause in a contract for the sale of real estate, and its judgment thereon is not absolutely void.

Action by David Felger and another against Francis M. Thompson and another. Heard on appeal. Decree for defendants.— [By Editorial Staff.]

Kenneth Little, of Columbus, for plaintiffs. Francis M. Thompson, of Columbus, for defendants.

KUNKLE, J. This is an action to restrain the defendants from enforcing a judgment obtained in the municipal court of the city of Columbus.

The defendant Francis M. Thompson brought suit in forcible detention in said municipal court against the plaintiffs herein, and secured a judgment to dispossess the plaintiffs from the real estate in question. The plaintiffs seek to enjoin the enforcement of such judgment.

A temporary restraining order, as prayed for in the petition of plaintiffs, was issued in this court. The case later came on for hearing in this court upon the following motion of defendant Thompson:

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(161 N.E.)

"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."

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 N. E. 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 magis

trate 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 N. E. 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 authorities 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

ment which, it did render, for the reason that there was an express provision for forfeiture contained in the contract, which provision was sufficient to sustain the jurisdiction of the municipal court.

It would therefore follow that the temporary injunction should be dissolved, and the petition dismissed.

Decree accordingly.

FERNEDING and ALLREAD, JJ., concur.

(118 Ohio St. 375)

HEIDLE et al. v. BALDWIN. (No. 20686.)

CLEVELAND RY. CO. v. PRESTI.

(No. 20586.)

Supreme Court of Ohio. March 28, 1928.

(Syllabus by the Court.)

1. Automobiles 171 (5)-Right of way given vehicles on main thoroughfares does not diminish driver's duty nor justify disregard of vehicle on intersecting thoroughfare (Gen. Code, § 6310-28, 6310-30, 6310–31).

Right of way, as defined by section 6310 28, General Code, and read in conjunction with section 6310-30 and 6310-31, General Code, granting a vehicle on a main thoroughfare the right to proceed uninterruptedly in the direction in which it is moving, gives a preference to the vehicle on such main thoroughfare, but does not diminish the duty of the driver of such vehicle to proceed in a lawful manner, nor justify his disregarding another vehicle upon an intersecting thoroughfare.

2. Automobiles 171 (4)—Right of way statute applies only to vehicles approaching crossing and at such time that if both proceed collision is foreseeable (Gen. Code, $$ 6310-28, 6310-30, 6310-31).

The statute only applies where two vehicles are approaching the crossing from different directions so nearly at the same time and at such rates of speed within lawful limits that if each proceeds without regard to the other a collision is reasonably to be apprehended.

3. Automobiles 171(5), 245 (80)-Driver of vehicle on intersecting thoroughfare must wait for passing of vehicle on main thoroughfare unless crossing in advance can be prudently attempted; whether driver of vehicle on intersecting road must wait for passing of vehicle on main thoroughfare is for jury (Gen. Code, § 6310-28, 6310-30, 6310-31).

Where the driver of a vehicle upon an intersecting highway reaches a main thoroughfare it is his duty to look both to right and left, and if another vehicle is approaching the intersection on the main thoroughfare it is his duty to wait until such other vehicle has passed before entering the intersection unless a prudent person would have reasonable ground to believe that such other vehicle proceeding at a lawful speed is so far distant from the intersection that he could safely cross in advance

thereof. The question whether the driver of the vehicle on the intersecting road is obliged to wait until the driver on the main thoroughfare has passed is a question for the jury, to be determined under all the circumstances of the case under proper instructions.

4. Automobiles 171 (2)-Statutory duty on driver of vehicle on highway intersecting main thoroughfare is rule of conduct to which rule of per se negligence is not applicable (Gen. Code, §§ 6310-28, 6310-30, 6310-31).

The duty imposed by the statute upon the driver of a vehicle on the intersecting highway is not a specific requirement to do or to omit to do a definite act, but rather a rule of conduct, and the rule of per se negligence is not applicable thereto.

5. Automobiles

245(14)-Conflicting evi. dence of speed and distance from intersection when drivers first had opportunity to observe vehicles presented elements for jury's consideration on issues of negligence.

Upon issues of negligence and contributory negligence where the evidence is in conflict as to the speed of each of the vehicles and the evidence is likewise in conflict as to the distance of each of the vehicles from the intersection at the time when each driver first had reasonable opportunity to observe the approach of the other, elements are presented which the triers of the facts must consider in their estimate of conduct.

6. Automobiles 246 (9)-General instruction on right of way without stating limitations held error.

It is error to instruct the jury in general terms that the law gives the right of way to the driver of the vehicle upon the main thoroughfare without stating the conditions and limitations upon that right.

7. Automobiles246 (9)-Charge that failure to bring vehicle to full stop when intersecting main thoroughfare as required by ordinance is negligence per se and actionable where causing collision held proper.

The state statutes do not require the driver of a vehicle on an intersecting highway to bring his vehicle to a full stop, and where this requirement is made by the provisions of a city ordinance a greater obligation is imposed upon drivers upon intersecting streets within the limits of such municipality,' and it is proper to charge under such an ordinance that the failure to bring the vehicle to a full stop is negligence per se and actionable where such failure is the direct and proximate cause of collision. Jones, J., dissenting in part.

Error to Court of Appeals, Miami and Cuyahoga Counties.

Petition by Flossie Baldwin against George Heidle and another, partners doing business as Heidle & Schelle, in which defendants filed a cross-petition heard together with a petition by Charles Presti against the Cleveland Railway Company. Judgment for plaintir in first case was affirmed by the Court of Appeals, and defendants bring error. Judg

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