
    No. 749
    STEWART v. KATULICH et al
    No. 18535.
    Supreme Court
    For Court of Appeals opinion, see 2 Abs. 457.
    Pending before the Supreme Court upon a motion to certify the record of Trumbull Appeals.
    Docketed April 24, 1924.
    2 Abs. 307;
    motion to certify overruled.
    2 Abs. 438.
    297. CONTRACTS — Can vendor of land forfeit interest of vendee for his failure to pay?
   In 1919 Stewart sold, upon a land contract, to John and Andy Shaffer, brothers, a parcel of real estate known in these proceedings as the Montgomery farm. The purchase price was $13,000, upon which John Shaffer and Andy Shaffer together paid $5,000 by conveying to Stewart a certain parcel of real estate owned by them jointly and situated in Farrell, Po. The balance of the purchase price of the Montgomery farm, $8,000, waá to be paid in equal annual installments. The Shaffers took possession and paid one year’s interest. In 1920, Andy and John Shaffer quarrelled and Andy left the farm. On Oct. 1, 1920, there was due Stewart as principal and interest under the land contract $980. John Shaffer was unable to pay the amount, and on Jan. 1, 1921, Stewart repossessed himself of the farm.

Attorneys — Fillius & F. Warren, for Stewart; M. B. Leslie, Hubbard & J. J. Boyle, Youngstown, for Katulich et al.

In September, 1921, Stewart sold the Montgomery farm to Hawthorne for $14,300. In November, 1921, Katulich enjoined Hawthorne from making any payments to Stewart, claiming the money to be the money of John Shaffer. Andy Shaffer filed an answer and cross-petition to recover from Stewart $2,500, this being the amount which he had paid Stewart toward the purchase price. Various other judgment creditors of John Shaffer also filed answers and cross-petitions against Stewart.

The Court 'of Common Pleas found in favor of Stewart and John Shaffer, whereupon Katu-lich and others appealed. In affirming the judgment, except as to Andy Shaffer, for whom it rendered judgment .against Stewart for $2,500, the Appeals held that the plaintiffs, Steve Katulich and the other judgment creditors, are not entitled to the relief prayed for by them as against the defendant, Stewart; and that there was no forfeiture of the interest of Andy Shaffer in and to the Montgomery farm; that the refusal, of Andy Shaffer to perform his contract with Stewart for the purchase of the Montgomery farm and his conduct in connection therewith gave rise to an offer to Stewart to rescind the entire contract and Stewart’s actions on January 1, 1921, so far as Andy Shaffer was concerned were an acceptance of such offer of rescission, and it was therefore the duty of Stewart to restore Andy to his first position.

Katulich filed a motion to certify. The sole question presented for the consideration of the Supreme Court is:

Has a vendor who has at all times insisted upon strict performance by the vendee of the terms and conditions of his land contract the right to forfeit the interests of the vendee for his wilful failure to pay when due or within a reasonable time thereafter, upon demand by the vendor of the installments specified in the contract ?  