Kissinger v. Yellow Pine Bldg. Co. , 21 Ohio App. 165 ( 1925 )

The action is here on appeal from the court of common pleas of Hamilton county.

The plaintiffs allege that the defendant company is a corporation engaged in buying and selling real estate, and that it entered into agreements with the various plaintiffs to sell each of them a lot, to erect a house thereon, according to certain plans and specifications, and to negotiate and procure a loan for the plaintiffs from some building association, and that as a further provision of such contracts the defendant agreed that it would "bring in from a well, which it was to furnish and provide, a five-eighths inch continuous cold water supply, to be carried to the basement and connected to an automatic pump, where pressure could be supplied to (lift the) water, and that said water should then be conveyed to the kitchen, as well as to all bathroom fixtures."

Plaintiffs aver that in none of the dwellings has defendant furnished the supply of water as agreed, that no well has been provided which will furnish the quantity and quality of water agreed upon, and that the water which has been intermittently furnished has been condemned by the health commissioner of Hamilton county, Ohio, as of an unsatisfactory quality and unsafe for drinking or domestic use.

Plaintiffs pray that the defendant be commanded to procure a continuous cold water supply, of healthful quality and quantity, sufficient to fill a five-eighths inch water pipe, to be carried to the basements of their several houses, and which may thence be delivered by automatic pressure to their kitchens and bathrooms, and that they may have a mandatory order of this court to that end.

Defendant, by answer, admits its business as alleged, and that it was engaged in constructing houses on said real estate in accordance with plans and specifications approved by prospective purchasers. Defendant denies that it has any contract whatever with certain of the plaintiffs, and avers that each contract made was separate and distinct, not uniform.

Defendant for further answer states that on the advice of competent authority it constructed a deep well, and drilled a further well, obtaining what it considered an adequate supply of water; that it procured the incorporation of a company known as the Glendale Farms Water Company, which was approved by the Public Utilities Commission of Ohio. Defendant says it has endeavored to secure further supply of water to augment the supply of the well, but that it has proved impossible to obtain any further supply.

It appears from the evidence that the defendant company has failed to live up to the contract in respect to the furnishing of an adequate supply of water, fit for use, and the plaintiffs have a remedy in an action for damages for breach of their contracts. They also have a remedy at law under the provisions of the Code. Moreover, if the court has the power to grant the relief prayed for, we are unable to see how the order could be enforced.

The record shows that the defendant is making every effort to relieve the situation. The plaintiffs have not shown any practical way to furnish the supply of water to which they claim to be entitled under their contracts. To secure a mandatory injunction, the evidence must clearly warrant its issuance.

For the above reasons, the prayer of the petition will be denied.

Writ denied.

BUCHWALTER, P.J., HAMILTON and CUSHING, JJ., concur.