
    No. 85
    HATCH et al v. BERTHOLD
    Ohio Appeals, 9th Dist., Summit County
    No. 751.
    Decided Nov. 12, 1923
    480. EVIDENCE — Oral .evidence admissible to show what was reasonable length of time in contract for building house.
    475. ESTOPPEL — Although purchaser assumed possession, held not estopped to give back property.
    465. Where party is not m¡ade a party in journal entry, he cannot, prosecute error.
   PARDEE, J.

Epitomized Opinion

First Publication of this Opinion

This was an action by Martin and Adeline Berthold to recover $950 which constituted a down payment on a house purchased in Akron. This action was brought against Hatch, Sher-rard, McDonald and the Real Estate Company which acted as agent in the sale of the property. A judgment was rendered for the plaintiffs and a journal entry was drawn against the Real Estate Company and Hatch, which was later corrected and judgment was rendered against McDonald and Hatch. Hatch and the company prosecuted error. The contract itself provided that the house was to be completed in a reasonable time. The contract was made March 11, 1920, and the house completed Sept. 1, 1920. Evidence was introduced as to oral conversations between the parties as to when the house was to be completed. In sustaining the judgment of the lower court, the Court of Appeals held:

Attorneys — Underwood & Hutchison ,for Hatch et al; Stahl & Andree, for Berthold.

1. Such evidence was competent not as requiring a definite date of completion but upon the question of what was a reasonable time.

2. Although the purchasers assumed possession of the property during the summer of 1920 and had caused alterations to be mlade in the same, they did not waive their claim as to performance and were not estopped from asserting the same.

3. As the Real Estate Company was not a party in the journal entry, there was no judgment against it from which it could prosecute error.  