
    No. 168
    DeROBERTS v. MILES HEATING CO.
    Ohio Court of Appeals, Cayahoga County
    No. 4142.
    Jan. 22, 1923
    (Sayre, P. J., Middleton and Mauck, JJ., of the Fourth District, sitting.)
    This opinion has appeared only in The Abstract.
    CONTRACTS — (1) Practice — Court must follow the record — (2) Demand for cancellation of the written contract, should have been pleaded.
    Error to Cleveland Municipal Court
    Attorneys — G. C. Hafley and C. F. McConnell, for DeRoberts; George S. Myers, for Miles Heating Co.
   MIDDLETON, J.

Epitomized Opinion

It seems that DeRoberts entered into a written contract with the Miles Heating Co., and gave notes thereunder, on which this action was brought by it. An answer and counterclaim was filed by Roberts, the third defense of which set up a non-performance of the contract by the Heating Company. On motion of the Miles Co. this was stricken from the files on the grounds that the statement of defense did not set up a defense to plaintiff’s claim, and that the counterclaim did not state a cause of action. The Appellate Court held:

1. That as no cause of action for or demand on part of Roberts for the cancellation of the contract' was pleaded, the facts stated in the counterclaim could not operate in his favor.

2. The lower court was not justified in sustaining the motion to strike the answer and counterclaim from the files, and while the lower court may have found otherwise from the evidence, the record does not show these facts, but shows affirmatively that the motion filed was sustained on the ground above specified. Judgment reversed and cause remanded.  