
    No. 496
    PALMER-BLAIR CO. v. TOLEDO MANTEL & TILE CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1441.
    Decided Dec. 1, 1924.
    707. LEASES—That lease on certain premises is to be released before executing deed for new property, held to be a good condition precedent, and failure to-procure the release warrants non-execution of deed. .
    225. CHARGE TO JURY-t—Held erroneous, as-did not define specifically, all the issues in the case.--
    Attorneys^—Charles K-Friedman, Stanley U Friedman,' Ritter & -Schminck-'-for Palmer-. Blair Co., ’ Charles A. Thatcher and Charles A. Meek, for Tile* Co., all of Toledo.
   . ■ The -Toledo Mantel and Tile Co. occupied .premises located on - Superior- Ave., in Toledo .under .a .lease’in-which The-Palmer-Blair Co. f and the E. H. Close Realty Co. were the les-i.sors. .The Tile Co. desiring.to. obtain cheaper ■quarters procured the services of the Palmer-!■:Rlair(¡Co. to,acquire property,' After -inter- ■: ¡views with; various- ¡owners , the “Falnier-Blair Go.:and the-Tile Unagreed tp purchase Ontario . property for $32,500, subject té consent of the '¿qwneEj-and therelease >of the lease of the-Superior. A. ve.-. property by’-both -the ¡Palmer- Co., the’.Tile Cé.' ' *•' ' ’- 7’ •«

The .written-proposal between Palmer-Blair ?i,Go. and; the ..Tile /Cor.WaSriever. consümmate.d, ¡wgs ,thisilea^er..onf-tbb Süpériori: A've!;.prbí)-;gée¡mi?!-.thafe flfreí'Palíri&r-Blair Co. had entered -into- á Contract, sectired ■ several' days before the proposition was ériWed into with the Tile Go.y a’ 99 year lease "With privilege of purchase in 5 years for $30’,000 by the Palmer-Blair Co. and two other 'individuals with -Whom-’it- had gone into the' deal. ;The Tile Co. claimed that the ’Palmer-¡Blair Co did not act in good’ faith;' such ás should exist between principal and agent, and aikod that the property in the hands-of the Palttier-Blair-Co: should be impressed with a .trust in its favor. The -Lucas Common Pleas rendered judgment in favor of the Tile Co. in the sum of $5,000. . . ’ - • . :

Error was prosecuted and the Palmer-Blair Co. contended .that the condition, to-wit: the release of the lease, had never been performed; that the E. H. Close Realty Co. had never agreed to release the lease on the Superior property until a suitable tenant had been found, such tenant never being found. The Palmer-Blair Co. also contended that it was not the agent of the Tile Co. and that it had never promised to secure a release on the Superior property if allowed to handle the deal with the Tile Co., as claimed by the latter. The Court, of Appeals held:

1. No matter what the evidence might show with relation to the subject of agency the Tile Co. could not prevail without showing, either a release of the lease or- that the Palmer-Blair Co. had obligated itself to procure such release. .. • ’ . - ,

2. Charge of the court was erroneous in .that -it did, not. define the specific issues in the case and is -subject to. criticisms contained in B. & O. R. R. Co. v. Lockwood 72 OS. 586. Judgment reversed.  