This case was originally brought by Isaac Frankel in the Cincinnati Municipal Court; against' Max Schwartz seeking the return of $520 earnest money. Judgment favored Schwartz and error was taken to the Hamilton Common Pleas which reversed the decision of the Common Pleas and entered judgment for Frankel.

The contract out of which the controversy arose is briefly as follows: Schwartz wrote to a real estate agent offering the terms he would give for the purchase of property. The terms of the offer were accepted by the agent and $500 was given to bind the bargain by Schwartz and accepted by the agent. Later Schwartz assigned his rights under the contract to Frankel for a consideration who also gave Schwartz $500 to reimburse him for the money he had given to the agent.

There is no memorandum in writing signed by Frankel, but an oral agreement was admitted in the amended petition whereby he agreed to take the contract as indorsed by Schwartz.

By the written assignment of the transfer of Schwartz’s right to Frankel, if Schwartz is allowed to retain the $500 he has a right to collect the whole amount of the purchase price and Frankel would therefore have to look to the agent for his title. On error, the Court of Appeals held:

1.Was it the intention of the parties that Frankel should pay Schwartz $57,750 for the right to pay the agent $55,000 for a deed to the property? This question shows the ambiguity and indefiniteness of the contract and assignment.

2.Under the terms of the agreement, it is impossible to decide what kind of a title Frankel was to receive.

3.It may be claimed that under the pleadings and oral evidence offered, the contract is explained; but if the court considers the evidence, a new contract is set up in place of the one in writing.

4. It is impossible to render justice in this case except by placing the parties in status quo, and the Common Pleas erred in awarding the judgment to Frankel.

5. All the power the lower court had in this case was to remand the case for new trial.

6. Therefore the judgment of the Common Pleas will be modified by striking out the judgment for Frankel and remanding the ease to the Municipal Court for new trial.

Judgment accordingly.