Epitomized Opinion

First Publication of this Opinion

This was an action by Martin and Adeline Berthold to recover $950 which constituted a down payment on a house purchased in Akron. This action was brought against Hatch, Sher-rard, McDonald and the Real Estate Company which acted as agent in the sale of the property. A judgment was rendered for the plain*103tiffs and a journal entry was drawn against the Real Estate Company and Hatch, which was later corrected and judgment was rendered against McDonald and Hatch. Hatch and the company prosecuted error. The contract itself provided that the house was to be completed in a reasonable time. The contract was made March 11, 1920, and the house completed Sept. 1, 1920. Evidence was introduced as to oral conversations between the parties as to when the house was to be completed. In sustaining the judgment of the lower court, the Court of Appeals held:

1. Such evidence was competent not as requiring a definite date of completion but upon the question of what was a reasonable time.

2. Although the purchasers assumed possession of the property during the summer of 1920 and had caused alterations to be mlade in the same, they did not waive their claim as to performance and were not estopped from asserting the same.

3. As the Real Estate Company was not a party in the journal entry, there was no judgment against it from which it could prosecute error.