
    No. 511
    MAZENA and FINK v. ORSCHEID et al
    Ohio Appeals, Ninth District, Summit County
    No. 776.
    Decided March 6, 1923
    This opinion has not been published except in Abstract.
    EQUITY — -(1) Law prevails where equities are equal —(2) Circumstances showing defendant’s superior right to premises — (3) Plaintiff’s right to damages for non-performance by lessor.
    Washburn and Pardee, JJ .
    Attorneys — Lloyd R. Read, for Mazena and Fink; Nelan & &Walsh, for Orscheid.
   PER CURIAM.

Epitomized Opinion

This was an action for an injunction against the lessee and lessor certain premises. The plaintiffs received from and paid a consideration to Ortscheid for a certain option or contract concerning the same leasehold. At the time this option was negotiated plaintiffs did not know that the defendants were also negotiating for a lease of the same premises. At the time the defendants negotiated their lease with the defendant Ortscheid, they did not know of the option purchased by plaintiffs. After the defendants obtained a transfer of the property, they had the same recorded in due form, thereby obtaining the legal title. When the plaintiffs learned of this transaction they filed an injunction suit. The Court of Common Pleas of Summit county refused the relief prayed for, and the plaintiffs appealed to the Court of Appeals. In sustaining the lower court this court held:

1. As the equities of the parties are equal, the court must apply a well established maxim of equity, to-wit, between equal equities the law will prevail.

2. Applying the aforesaid maxim to this case, as the defendants had obtained the legal title they ihust prevail.

3. The only relief that the plaintiffs are entitled to is an assessment of damages against the defendant Ortscheid for a breach of his agreement with them.  