
    MIGLIORERO v D'ISA
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 17, 1930
    R. J. Parillo, Youngstown, for Migliorero.
    F. P. Anzelloti, Youngstown, for DTsa.
    MAUCK, J(4th Dist) sitting in place of POLLOCK, J.
   MAUCK, J.

Mrs. Russo did not perform under the first contract, and the plaintiff never secured title to the property involved. This was due to no fault of DTsa, and while the plaintiff now complains of that situation, he never in fact made an effort to compel Mrs. Russo, for while it appears that there was in fact a belated action for specific performance filed in his name, plaintiff testifies that he was never anxious to have the transaction go forward and he never authorized the filing of that suit. However this was, the plaintiff did not acquire pjnoo pue 70U pip Auuonbosuoo pue ‘oiq.iq. not have performed under his second contract, which bound him to give DTsa the exclusive opportunity of making a re-sale. It is clear that DTsa had an absolute right to the five hundred dollars received by him on the first contract. Under the second contract, which must be read with the first to ascertain the relation and rights of the parties, the plaintiff can not recover because he has not performed nor has he shown any excuse for non-performance. He paid the two hundred dollars under the second contract to DTsa, because he thereby acquired the right to have DTsa repay him the whole five hundred dollars which DTsa had already received and to get D’lsa’s renunciation of the five hundred dollars still unpaid. This was a fair bargain and the plaintiff had to perform before he could enjoy its benefit. In brief, the case is in this anomalous condition: The plaintiff is attempting to recover upon a contract under which he has not performed against a defendant who has in no way breached this contract.

The judgment is affirmed.

Roberts and Farr, JJ, concur.  