
    No. 405
    SIDNEY HILL SYSTEM CO. v. KANN
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4573.
    Decided Feb. 25, 1924
    287. CONTRACTS — Where a contract to perform services calls for payment in advance, an action for payment if brought before the services are perforated must be one of damages.
    Attorneys — Klein & Harris, for Sidney Hill System; F. E. Bruml, for Kann; all of Cleveland.
   PER CURIAM.

Published Only in Ohio Law Abstract

Original action in Cleveland Municipal Court, wherein the Sidney Hill System of Health Bldg. Co. was plaintiff and Louis J. Kann was defendant. Kann signed a contract to pay $125 in advance for 45 treatments to be given within one year from Nov. 9, 1921. He took only one treatment and paid no money thereafter, refusing further treatments though they were tendered to him. In May, 1922, the Sidney Hill Co. brought suit for $125, alleging that that sum was due. After hearing the plaintiff’s case, the trial court on motion directed a verdict for Kann. The Sidney Hill Co. prosecuted error. . Held:

The case was brought on the theory that plaintiff was entitled to the $125 irrespective of its performance of services. No evidence was offered to prove damages. The proper theory of recovery is by an action for damages. The trial court was right in directing a verdict. Judgment affirmed.  