
    Thomas v. The Williamson Heater Co.
    
      (Decided April 4, 1927.)
    
      Mr. Paul Scudder and Mr. Frank E. Wood, for plaintiff in error.
    
      Messrs. Cobb, Howard é Bailey, for defendant in error.
   Hamilton, P. J.

This action grows out of the purchase and sale of a heating furnace for the home of the plaintiff, Thomas.

In the trial court, a jury was waived, and the cause was tried to the court. The trial court, after hearing, entered a judgment for the defendant, the Williamson Heater Company, defendant in error here. From that judgment, Thomas, plaintiff below, and plaintiff in error here, prosecutes error, seeking a reversal of the judgment.

On request, the trial court made separate findings of fact and conclusions of law. In its conclusions of law, the court found that the action was one to rescind a contract of purchase, and to recover the purchase price of the furnace. And further found that the plaintiff did not notify the defendant, within a reasonable time, of his intention to rescind.

Plaintiff in error, plaintiff below, contends that the court erred in its interpretation of the nature of the action, as being one for rescission, and contends that the action was for a breach of the contract of warranty.

It is the law that the nature of the action must be gathered from the pléadings. Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St., 271, 48 N. E., 1093; Frederickson v. Nye, 110 Ohio St., 459, 483, 144 N. E., 299, 35 A. L. R., 1163; Complete Bldg. Show Co. v. Albertson, 99 Ohio St., 11, 121 N. E., 817; Lust v. Farmers’ Bank & Savings Co., 114 Ohio St., 312, 151 N. E., 189. We must therefore look to the petition in this case to determine whether or not the action is one for rescission, or for damages for breach of contract.

The petition, in substance, alleges that the defendant, the Williamson Heater Company, is a corporation under the laws of Ohio; that on the 5th day of December, 1919, the plaintiff entered into a certain contract of writing with defendant, wherein, in consideration of the sum of $295 to be paid by the plaintiff to defendant, the defendant promised and agreed to furnish, erect, and install a furnace in the residence of the plaintiff, and to place in position all smoke and heating pipes necessary for the efficient operation of the furnace; that said contract contained certain warranties; that the plaintiff paid the purchase price of the furnace, and did all things on his part to be performed, but that the furnace failed to comply with the warranty contained in the contract ; and that the plaintiff was obliged to, and did, remove the furnace from his residence, to his damage in the sum of $295.

The answer admitted the warranty and the payment of consideration, denied the other allegations of the petition, and interposed the additional defense that defendant was not permitted to make proper tests or demonstrations. And defendant claimed to be relieved from tbe operation of tbe warranty in the contract.

Tbe pleadings show clearly that tbe action was for a breach of contract. Tbe mere fact that tbe damage claimed is in tbe same amount as tbe purchase price does not alter tbe cause of action. Plaintiff might have claimed and may have sustained more damage than this amount, but be saw fit to only ask for an amount equivalent to tbe purchase price. This did not change tbe cause of action from one in damages) to one for rescission. Tbe court was, therefore, clearly in error in its finding of law as to tbe nature of the action.

It is argued that, if this was error on tbe part of tbe trial court, tbe record fails to show any specific amount of damage suffered. There is no bill of exceptions in tbe case. It is unnecessary to consider whether there was or was not sufficient evidence in tbe case to warrant tbe court in passing on tbe amount of damage, for tbe reason that the court did not reach this question. It only found, as heretofore shown, that tbe action was one for rescission and was barred by laches.

In tbe second conclusion of law tbe court found that tbe plaintiff did not comply with tbe provisions of tbe contract on bis part. If this was an attempt to decide tbe question, as on a suit for breach of contract, it would be inconsistent with tbe other conclusions of law and against tbe findings of fact.

The judgment was, therefore, erroneous, and will be reversed, and tbe cause remanded for a new trial and further proceedings.

Judgment reversed.

Cushing and Buchwalter, JJ., concur.  