Emerine v. Votaw , 1 Ohio Law. Abs. 718 ( 1923 )

HUGHES, J.

Epitomized Opinion

Emerine entered into a contraetto sell his farm to Votaw, who paid $500 down to bind the contract, and as part payment of the purchase money. The contract was entered into through correspondence, and is evidenced by the letters passing between the parties. A dispute arose before the real was consummatd and both parties claimed the other had breached the contract. Votaw sued Emerine to recover the $500 paid. Emerine cross petitioned for damages claiming breach of contract. Jury was waived. Court rendered judgment for $500 in favor of Votaw. Emerine asked a reversal on the ground that the judgment was against the weight of the evidence, because the evidence failed to show he was not at all times ready and willing to perform his part of'the contract, and also because ihe minds of the parties did not meetin in regardd ic- the terms of the contract. In affirming the judgment, the Court of Appeals held:

1. The evidence adduced by Votaw tends to prove that if the terms of the contract were as claimed to him, Emerine did refuse to perform and Votaw was ready, able and willing to perform,. but considered Emerine’s refusal as a breach and he, Votaw, was therefore discharged and entitled to his money. The recovery was therefore limited lo the recovery of the money paid, and did not include damages for his breach.