
    RANSON v. BROOK.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1982.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 753. Measure of Damages — 997. Real Estate.
    1. Contracts, for sale of real estate, upon which payments have been made, can only be ordered cancelled by court of equity, on equitable principles.
    2. Where, 'to allow all payments and* improvements to be held as liquidated damages would be to allow an amount which is. extravagantly unreasonable and manifestly disproportionate to actual damages sustained, court will require refund.
    Appeal from Common Pleas.
    A. E. Brunskill and Chas. W. Davis, T-oledo, for Ranson.
    L. E. Gorman,.Toledo, for Brook.
   FULL TEXT.

RICHARDS, J.

The plaintiff, on September 8, 1925, entered into a contract with 'the defendant for the purchase of a piece of land in Washington Township, this county, for $4,700.00. She paid $700.00 cash, took possession of the property and thereafter paid $64.00 additional and made improvements which enhanced the value of the property $100.00,

She brought this action to procure a cancellation of the contract on the ground of fraud. We are unable to find that the claim of .fraud is maintained by clear and convincing evidence.

The defendant filed an answer and cross-petition in which he asks to have the contract cancelled and his title quieted because of plaintiff’s failure to comply with its terms in making payments. The plaintiff has- failed to comply with the terms of the contract and that contract provides, in case of such failure, that it shall be forfeited and the payments made be retained as stipulated damages. Literally, by the terms of the' contract, the defendant is entitled to have his title quieted and to retain the payments, but such contracts can only be ordered cancelled by a court of equity on equitable principles.

The plaintiff occupied the premises about fourteen months and the value of the use and occupation would be approximately $250.00. In the meantime the property has increased in value. To allow all the payments and improvements to be held by the defendant as liquidated damages would be to allow an amount which is extravagantly unreasonable and manifestly disproportionate to the actual damages sustained, within the rule announced in Norpac Realty Co. v. Schackne, 107 Ohio St., 425.

The court finds under the evidence that the defendant is entitled to have the contract can-celled and his title quieted upon the repayment to the plaintiff of the amount of $400.00.

(Williams and Lloyd, JJ., concur.)  