Bracken v. Leimkuehler , 1 Ohio Law. Abs. 520 ( 1923 )

VICKERY, P. J.:

Epitomized Opinion

This is an action to recover the contract price of a motor. One Leimkuehler was the owner of certain property situated on Lorain avenue in Cleveland, Ohio. Bracken, an attornev sought to sell this property and he had a contract made between his sister, Winifred Bracken, and Leimkuehler whereby he leased this property for a term of years at a rental of $150 per month with the right of purchase during the leasehold at $18,000. When Leimkuehler was notified of the fact that the property had been leased he refused to sign the lease. An action of specific performance was then brought against him and the court ordered him to "sign the same. Before the decree was entered Leimkuehler sold and removed some goods and fixtures, including a motor, which the land contract provided should remain on the premises. Under the decree of the court, Winifred Bracken was to pay the sum of $225 for the motor after the lease had expired. Winifred Bracken exercised her right, and then Leimkuehler brought suit in the Municipal Court of Cleveland to recover $225. Before this action was brought Leimkuehler had the machinery and motor which was removed taken back to the premises. To this action plaintiff filed a counter claim for damages arising out of this wrongful removal. The jury returned a verdict for the plaintiff, Leimkuehler, for the full amount of his claimy $225, and for Winifred Bracken for $43 damages. The defendant, Bracken, prosecuted error. In reversing the judgment the Court of Appeals held:

Attorneys — Wm. Bracken and Niman, Grossman, Buss & Holliday, for Bracken; Reasner & Reasner and Geo. Spooner, for Leimkuehler.

1. As Leimkuehler had violated and broken the contract and failed to comply with its provisions, he could not maintain a suit to recover on the contract for the price of the motor.