
    ROYAL INDEMNITY COMPANY v McFADDEN et
    Ohio Appeals, 1st Dist, Hamilton Co.
    No. 5686.
    Decided Feb. 19, 1940.
   OPINION

By MATTHEWS, J.

Heard on motion to certify.

The appellee cites three cases — Friend v Hilliard, 8 Abs 318; Newburg Brick & Clay Co. v Chojnicki, 14 O. C. C. (N.S.) 599; and Dissette v Cutler Co., 29 Oh Ap 88, as in conflict with the decision or judgment in this case, in that it is held in this case that such an ac.cord, if binding, may be asserted as a defense to a pending action in the common pleas court upon the original cause, and that, therefore, an independent action for specific performance could not be maintained.

Our right to certify because of conflict only exists where we find our judgment to be in conflict with the judgment of another court of appeals. The first and last cases relied on are decisions of courts of. appeals, and if found to be in conflict would justify us in certifying this case to the Supreme Court. However, we find no conflict.

The fourth paragraph of the syllabus to Dissette v Cutler Co., supra, is not a correct statement of the decision, and as the opinion and not the syllabus is the law of the court of appeals, if the occasion required it, we would be forced to look to the opinion to determine whether a conflict exists. The action was to enforce an accord. No question as to the extent to which an accord was available as a defense was involved in the case.

Friend v Hilliard, supra, is likewise a case in which the action was to enforce an accord. No defense based on an accord was pleaded or considered.

Finding no conflict with any court of appeals’ judgment, the motion to certify is overruled.

HAMILTON, PJ. & ROBS, J., concur.  