Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action for breach of contract. Sachs and Friedman entered into a written agreement for the sale and purchase of certain improved real estate located in Parkgate avenue, Cleveland, for $20,500. A -down payment of $500 was made by Sachs and accepted by Friedman. The written contract contained a clause whereby Friedman agreed to convey said real estate free and clear from all incum-brances. The certificate of title showed a building restriction limiting the use of said real estate to two-family resident purposes only. Sachs rtfused to accept the deed upon the ground that the property was not free from an incumbrance. Sachs then brought an action to recover back his $500 and also to recover damages for the breach on the part of the vendor. Defendant did not file a cross-petition for damage. Judgment was awarded in favor of the defendant. In reversing the judgment of the lower court, the Court of Appeals held:

1. Before the vendor, Friedman, can retain any part of the down payment of $5.00 he must sue for damages either in an original action, or by way of cross-petition after having been sued by Sachs. As the vendor did not do that in this case, the judgment was erroneous, as it piactically amounted to a verdict of $500 in favor of Friedman when he neither asked for damages by way of cross-petition nor offei ed any proof showing that he had sustained any damage.