DocketNumber: No 570
Citation Numbers: 16 Ohio Law. Abs. 323
Judges: Cushing, Hamilton, Ross
Filed Date: 5/8/1933
Status: Precedential
Modified Date: 7/20/2022
One of the grounds of error is the refusal of the trial court to permit the filing of an amended answer. The second ground of error is that the payments provided for in the. contract were in fact a penalty in case of a breach and not liquidated damages. This is the new matter alleged in the amended answer tendered. The amended answer makes some statement contrary to the original answer filed and refusal of leave to file would not be reversible error if the new matter is unimportant.
It appears to this court that if the trial court had permitted the amended answer to be filed and had heard the case on evidence which might have been submitted, notwithstanding the admission of the answer, it would have presented a better record. Further, since the law abhors a forfeiture the trial court might well have given a period of time to the defendants to make good their default and thus keep the contract in force. However, at no time in the proceeding in the trial court or reviewing court, have the defendants made any offer to pay up their arrearages and it must be taken for granted that they could not or would not do so. Neither do we feel that a reversal would be justified as presented by the pleadings, on the ground that the payments made must be considered as a penalty and not as liquidated damages.
Our conclusion is that nothing would be gained by plaintiff in error by a technical reversal and we therefore do not find any prejudicial error in the action of the trial court. The judgment is. affirmed.