
    No. 215
    SCHULTZ v. MILLER
    Ohio Appeals, 7th Dist., Mahoning Co.
    October 17, 1924.
    1195. TRIAL—Action to set aside a deed and to recover on conflicting claims arising out of building contract should be submitted to jury.
    Published only in Ohio Law Abstract
    Attorneys—N. L. Countryman, D. F. Griffith and Wm. T. Swanton, for Schultz; Calvin & Johnson, for Miller; all of Youngstown.
   FARR, J.

Epitomized Opinion

An action was brought in the Common Pleas to set aside a deed and for an accounting From the record it appears that Welthy Miller contracted with Fred W. Schultz for the construction of a house for $8,400, on which she had advanced $4,800. Later he abandoned the contract. She paid one Simpkins an additional sum of $8,538.28. A verbal understanding to pay for extras was not disputed. Schultz built a house on an - adjoining lot and conveyed it to .his wife. This conveyance is attacked and judgment for $4,938.28 is sought. Schultz denied the appropriation of Miller payments to the construction of the -second house, and by cross-petition claimed $1,400 due him for extras, damages and superintendence. The common pleas set aside the deed but refused to submit any of,the issues to a jury. Reversing this judgment, the court of appeals held:

Setting aside' the deed bore no relation to the conflicting claims, for money and determined no: right to recover money which under 11379 and 11380 GC. should have been submitted to a jury.  