Epitomized Opinion

Published Only in Ohio Law Abstract

Original action on an account in the Municipal Court of Cleveland, wherein the Sterling & Welch Co. was plaintiff and Louis Green-blatt and his creditors had entered into a written agreement whereby Greenblatt was to transfer his real property to one Lund, trustee, to be managed by a committee of the creditors and to be sold by them and the proceeds divided pro rata among the creditors. The agreement provided that the creditors were to accept this arrangement in full discharge of their claim, and it also provided that the agreement should become binding only in the event that it was executed by all of the creditors. Greenblatt did transfer the property to Lund, who collected $1,5100 in rent from the property. Thereafter a receiver was appointed to take charge of the property in a foreclosure action that had been started previous to the creditors’ agreement. Lund delivered the' property and the $1,500 to the receiver. One of Greenblatt’s creditors had failed to sign the creditors’ agreement. The plaintiff in this action contended that because of the failure of all of the creditors to sign it was not bound by the agreement. Green-blatt contended that the action of Lund in accepting the property and rent constituted a waiver and estoppel binding on plaintiff. Judgment being rendered for plaintiff, Green-blatt prosecuted error. Held:

If the creditors were not bound by the agreement, then Lund in taking and managing the property was acting as trustee for Greenblatt and if that was so, he had no right to turn the $1,500 over to the receiver, since that money belonged to Greenblatt. The only theory on which Lund could have turned! over the money to the receiver was that Greenblatt had no interest in it, and the proceeds of the property belonged to all the creditors jointly. The creditors cannot retain the benefits of the agreement, and at the same time repudiate the agreement. The contention of waiver and es-toppel was clearly established. Judgment of the Municipal Court reversed, and judgment entered for Greenblatt.