
    Bayer v. Gage et al.
    
      (Decided May 14, 1928.)
    
      Messrs. Smith, Olds, Smith £ Shepherd, for plaintiff in error.
    
      Messrs. Simmons, De Witt £ Vilas, for defendants in error.
   Sullivan, P. J.

This cause is a proceeding in error to the court of common pleas of Cuyahoga county, wherein it is sought to reverse the judgment of the court below on the ground that the court erred in sustaining at the close of plaintiff’s evidence defendant’s motion for a directed verdict in her favor.

It appears from the record that the parties hereto entered into a contract for the exchange of certain real estate, and that, because of a breach in the terms, the plaintiff, Nettye K. Bayer, claims that she has been damaged in the sum of $18,720.00, and for cross-petition the defendant, Jane Gage, asserts that she has been damaged in the sum of $18,800.00.

The plaintiff owned an apartment house on East Eighty-Second street in the city of Cleveland, which was supposed to be 'valued at about $7,500, which was equipped with certain personal property concerning which the parties had stipulated. On May 10, 1926, the date of the agreement, the defendant owned certain lots located on Mayfield road, which are described in plaintiff’s petition. By the terms of the agreement the Guarantee Title & Trust Company was nominated as the agent of both parties, for the purpose of consummating the stipulations of the agreement. Among other things, it was agreed that the Eighty-Second street property owned by plaintiff should be conveyed to defendant by a sufficient warranty deed, free and clear of all incumbrances excepting two mortgages, together with taxes and assessments on the property.

As consideration of this conveyance, it was agreed by defendant that she would execute a warranty deed of the lots on Mayfield road, and it was stipulated that all of these lots were free and clear of incumbrances, excepting taxes, and, as to the taxes, it was agreed that they should be assumed and paid by the respective grantees.

There was a further stipulation that a bill of sale should be made of all the personal property in the Eighty-Second street apartment then owned by plaintiff.

An essential stipulation of the contract was that the necessary papers should be deposited with the agent, and that they could not be withdrawn until the expiration of fifteen days after May 10, 1926, to wit, May 25, 1926.

The record shows that the plaintiff executed her warranty deed under date of May 12,1926, and that it was deposited with the Guarantee Title & Trust Company, pursuant to the agreement. In addition to this, the plaintiff deposited with the escrow agent a statement of title.

The bill of sale as provided for was also executed and deposited according to the agreement.

Upon examination by the trust company of the title to the Mayfield road lots it was found that one of the lots was incumbered by a mechanic’s lien. This information was conveyed to the parties, and a release was demanded. This notification by the abstract company to the defendant of the existence of the mechanic’s lien was made on June 1,1926. It appears, however, that on June 16,1926, the lien was canceled.

This status in the case calls our attention to a certain clause of the escrow agreement which reads:

“If the search of the title discloses the requirement of the deposit of any additional papers or funds, or the doing of any act not mentioned in these instructions, the party upon whom the duty rests to deposit such papers or funds or to do such act, may have fifteen days from the date of notification by you of such requirements, before the other party may withdraw any papers or funds.”

Thus it is fixed that the parties agreed that fifteen days from the date of notification was the time allotted “before the other party could withdraw any papers or funds.” It appears that defendant adhered to the terms of the escrow agreement with relation to the canceling of the mechanic’s lien.

On the 17th day of June, 1926, plaintiff withdrew her papers from the escrow agent. It seems that the escrow agent, under the record, had no knowledge that the mechanic’s lien had been canceled, and the cancellation filed for record on June 16, 1926, because, had it possessed such knowledge, it probably would not have returned to plaintiff her documentary deposits with the escrow agent.

The defendant on July 10,1926, some three weeks after the plaintiff had withdrawn her escrow papers, likewise withdrew the escrow deposits which she had made. This leaves the following legal situation:

The plaintiff could not recover under her petition if she breached the contract herself, or was a party, either directly or indirectly, to any breach on the part of defendant.

The notification and cancellation with reference to the mechanic’s lien transpired within fifteen days from the date of the notification above noted. This was strictly within the terms of the contract. The withdrawal by plaintiff of her escrow papers from the escrow agent, on June 17,1926, was, in the opinion of the court, not justified, because the bone of contention, to wit, the mechanic’s lien, was canceled within the time prescribed in the contract, to wit, fifteen days after the date of notification. Therefore, so far as there being a case to submit to a jury, we think the court was justified in sustaining the motion to direct. This proposition is accentuated by the fact that the defendant herself abandoned the contract some three weeks subsequent to the plaintiff doing so.

Thus it appears from what is herein noted, and from the entire record, that there was a mutual abandonment of the contract. Of course, what the defendant did subsequent to what the plaintiff did only indirectly applies to the action of the court Upon the motion to direct, because the plaintiff abandoned the contract, and thus it appears from the record, unchallenged, that at the time the motion was made it was inevitable that the court could only pursue one course, and that was to sustain the motion to direct. This he did. However, the withdrawal by defendant of her papers from the escrow company three weeks subsequent to the withdrawal by plaintiff of her papers accentuates the fact that the case, at the time the motion was made to direct, was without an issue. In other words, neither party could recover, and, while this only indirectly bears upon the question of error, yet we think it emphasizes the correctness of the view taken by the lower court, which is subscribed to by this court.

Holding these views, it is our judgment that there is no issue triable to the jury, and therefore the judgment of the lower court is affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  