
    SCHNEIDER BROS. HOME BAKING CO v J. SPANG BAKING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 11601.
    Decided May 18, 1931
    Sol Copperman, Cleveland, for Schneider Bros. Baking Co.
    Quigley & Byrnes, Cleveland, for J. Spang Baking Co.
    JUSTICE, PJ, CROW and KLINGER, JJ, (3rd Dist), sitting.
   CROW, J.

There are enough allegations in the petition and there are enough proved to bring the case within the provisions of §11760 GC and within the doctrine applied in 63 Oh St 404.

Unless and until it would be shown that the contract between Grisser and The J. Spang Baking Company had been terminated, The J. Spang Baking Company would be entitled to retain the money for the aforesaid purpose of assuring performance by Grisser.

On such termination, the amount, if any, of the money not applicable to the purpose for which it was deposited, should be subjected to the payment of plaintiff’s judgment, and such should have been the order of the Municipal Court of Cleveland.

The judgment will be reversed and the cause remanded .with direction to make that order.

It should be added that in view of the small amount of the money, the order should go no further than that defendant pay to the clerk of the Municipal Court of Clevéland the sum, if any, remaining in the hands of The J. Spang Baking Company, after satisfying the obligation of Grisser to it, not exceeding the amount then due on the judgment, and the costs of the suit below should be ordered paid out of the fund if and when received.

JUSTICE, PJ, concurs.

KLINGER, J, dissents.  