Goodyear Overlook Realty Co. v. WM. H. Evans Bldg & Ln Ass'n

WASHBURN, J.

While in its pleading the Realty Co. claims that there was an express contract to that effect, there is no evidence in the .record of any express contract, ,and it is frankly admitted that no express contract was made.

The trial court held that the evidence did not warrant the finding, that there was an implied contract. Nothing was said by any of the parties at any time indicating that there was any agreement whatever between the Realty Co. and the Loan Assn., and if such a contract is to be implied, it must be implied from the fact that the Loan Assn., at the request of the Realty Co., filed the two mortgages in the order indicated for the purpose of making the Loan Assn, mortgage the first lien and the Realty Co. mortgage the second lien.

We do not think that that fact, taken in connection with the knowledge the parties had of the transaction, is sufficient to establish an implied agreement, in the absence of some other communication between the parties or acts done by them indicating an intention to contract with each other.

The suggestion of a general custom in reference to transactions of this character is of no avail, for “where there is no contract, proof of usage will not make one.” “Usage or custom cannot create a contract or liability.”

Thomas v. Guarantee T. & T. Co., 81 O. S. 432.

Funk, PJ and Pardee, J, concur.