
    No. 883
    SCHIPPACASSE v. GARMAN
    Ohio Appeals, 9th District, Summit County
    No. 641.
    June 26, 1923
    167. CONTRACTS.
    Failure of performance will not entitle injured party to damages who elects another remedy before the stipulated time for performance has arrived.
    Patterson, P. J., Houck and Shields, JJ.
    Attorneys — Whittemore & Motz, for Schippacasse; Musser, Kiffer & Huffman, for Garman.
   BY THE COURT:

Epitomized Opinion

Action for damages for breach of contract. Plaintiff leased land to defendant Garman for 99 years-In the contract of lease Garman agreed to erect a building to cost $50,000 to be completed not later than July 1, 1921. Defendants M and K executed a bond to plaintiff in $20,000 to the 'effect among other things that Garman would complete the building -in accordance with the terms. In April, 1921, the building had not been commenced, and plaintiff then notified Garman that because of default in the payment of rent he elected to forfeit the lease.

The petition alleged waste, failure to pay rent and to commence the building and asked damages against German in the sum of $52,446.66 and against M and K in the sum of $20,000. Judgment was rendered in Common Pleas for $235 against Garm&n and for $1,540.33 against Garman and M and K. Plaint™ prosecuted error, contending principally that M an? K should not have been released from a clause in the bond providing for liquidated damages of $10,000 if Garman failed to erect the building within the time agreed upon. There was an abundance of testimony to show that it was a physical impossibility in April, 1921, for. Garman to complete the building by July 1,-1921. Held:

Plaintiff had a choice of remedies either to forfeit the lease or to wait until July 1 and sue upon the bond. He chose the former and in so doing released the bond as to the liquidated damages. Judgment affirmed.  