Epitomized Opinion

The Screw Machine Products Company referred to hereafter as the Seller originally filed its action at law in the Municipal Court of Cleveland against Oppenheimer .referred to herein as the Buyer. The Buyer demurred to the Statement of Claim on the ground that the Seller was seeking to enforce an illegal contract. This demurrer was sustained and the Seller not desiring to plead further, final judgment in favor of the Buyer was rendered. The ease came before the Cuyahoga Appeals on error. This court reversed the judgment of the Municipal Court evidently on the theory that the Buyer had either waived the defense of illegality, or had estopped himself from setting up this defense.

The facts alleged in the Statement of Claim and admitted by the demurrer were that the Seller sold and delivered certain electric interoffice communicating equipment to the Buyer under a contract of conditional sale which contained a provision waiving, in effect, the protection of 8570 GC in that it permitted the Seller to retake the property from the Buyer in the event of default, without refunding to the Buyer any payments theretofore made. The Buyer accepted the equipment and paid about two-fifths of the contract price.

Questions presented by the plaintiff are:

1. Is the contract illegal and non-enforcible at law in accordance with the decision of the Croneis case 89 OS 168 ?

2. If so, does Buyer’s acceptance of the goods, and payment of part of the purchase price amount to a waiver of this defense, or create an estoppel against its assertion?