
    No. 171
    MILLER v. ADELSTEIN
    No. 19580.
    Supreme Court
    On motion to certify.
    Dock. Jan. 18, 1926;
    4 Abs. 72.
    997. REAL PROPERTY — Where a contract for the sale of real estate, which contains no description of said property, is executed, may the vendee refuse to pay a balance due on the purchase price until the description is inserted and if the vendor brings an action for ejectment thereupon, may the vendee enjoin the vendor from ousting said vendee?
    Attorneys — Alexander H. Martin for Miller; C. M. Klein for Adelstein; all of Cleveland.
   Ruth Miller entered into a contract with Charles Adelstein whereby she agreed to purchase a certain property. The contract did not contain a description of the property and upon the vendee’s request that it be inserted and refusal to pay the sums stipulated in the contract until the description be inserted, the vendor brought an action for ejectment.

Miller brought this action originally in Cuyahoga Common Pleas to enjoin Adelstein from ousting her. The injunction was refused and this judgment was affirmed by the Court of Appeals.

It seems that Miller had taken possession of the property under a former contract for sale which was cancelled and she continued in possession until the contract in question was executéd.

The lower courts held that the vendor had at all times been ready, willing and able to deliver a deed to the property in accordance with the terms of the contract and that the vendee had breached the contract by failing to pay the sum due, and ordered that vendee’s rights terminated and that vendor may retain the sum already paid as liquidated damages unless vendee pay the sum due.

Miller here contends that the contract is unenforceable because it was incomplete and imperfect in that it contained no description of the property, and that as the possession of the property was taken under a former contract the statute of frauds would bar the action of Adelstein for ouster.  