
    No. 117
    OHIO TOOL CO. v. LANG et
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7652.
    Decided Nov. 22, 1926
    297. CONTRACTS — When time is the essence of .a contract, and the party benefitted thereby voluntarily extends the time limit, such party cannot arbitrarily rescind without giving notice in order to allow the other party sufficient time to either perform or pay.
    First Publication of this Opinion
    Attorneys — Thompson, Hiñe & Flory for Tool Co.; Copeland & Quintrell for Products Co.; all of Cleveland.
   LEVINE, P. J.

Charles Lang et, d. b. a. Lakewood Products Co. brought this action in the Cleveland Municipal Court against the Ohio Tool Co. to recover $676.33 and for rescission of an oral contract. The litigation grew out of the following facts: the Tool Co. agreed with the Products Co. to manufacture for them a certain machine not to exceed $800 in cost and to be delivered in 30 days. The original time limit to deliver was extended from time to time and finally by mutual consent a new two weeks’ limit was set. The Tool Co. did not finish the machine under the new time limit and after repeated requests by the Products Co. to deliver same, they (Products Co.) elected to rescind and notified the Tool Co. of this intention demanding a return of their money. The trial resulted in a verdict for the Products Co. and upon error proceedings the Court of Appeals held: — ■

1. Even when time is made the essence of contract, this provision can be waived by the party benefited thereby, and when such waiver is made, one cannot arbitrarily declare a forfeiture of the contract for delay, but must first demand payment or performance and give the other party a reasonable time to comply.

2. The Products Co. under the feats herein could have rescinded provided they gave proper notice; but from their own testimony an officer of the Company called repeatedly requesting performance, but never mentioned rescission.

3. This does not constitute sufficient notice of rescission under the law and as proper notice of rescission was never given the Tool Co., the judgment of the Municipal Court is reversed.

Judgment reversed.

(Sullivan and Vickery, JJ., concur.)  