
    No. 315
    SEFERIAN v. BAUMANN
    No. 18976.
    Supreme Court
    Motion to direct Lucas Appeals to certify.
    Dock.
    Feb. 24, 1925;
    3 Abs. 146.
    545. FORFEITURE—Does it take place upon default of payment on property, when vendor has made no objection and accepts payments subsequent to default?
    Attorneys—Johnson, Johnson & Farber, and Ralph Emery, Toledo, for Seferian; Albert V.. Baumann, Tiffin, for Baumann, et.
   Ezekiel Seferian entered in December 1916 into a conrtact with Annie Baumann for the purchase of real estate for $5750. Mrs. Bau-mann died in Feb. 1918, leaving a will, and Albert Baumann, her husband, as executor, brought suit in the Lucas Common Pleas seeking to recover the property and to quiet title. It was contended by him that the contract entered into by Seferian and Mrs. Baumann recited that upon default there was to be a forfeiture of the property in Seferian’s possession; and the payments in the hands of Bau-mann were to be retained together with any improvements made upon the property in the course of Seferian’s possession.

Seferian made regular monthly payments until 1920, when he defaulted a month’s payment which has not since been made up, and in 1921, he paid only 8 of the 12 installments. Seferian contended that Baumann did not object to the defaults but that he said he under stood that conditions were bad and did not mind them. It was also contended by Seferian that $1800 in improvements had been expended upon the property and that several banks had offered to make him loans for $5000 on the property, and the property had increased in value to the extent of $10,000.

The judgment in the Common Pleas Court was in favor of Seferian and the petition of Baumann was dismissed. Error was prosecuted and the Appeals in reversing the judgment of the lower court said:—The contract entered into by the parties was neither unreasonable or unfair. Contracts are made to be performed, not to be violated and it is the duty of the court to enforce contracts instead of permitting' parties to partially perform, and then ignore other provisions.

The case is brought to the Supreme Court seeking to reverse the decision of the Appeals, Seferian contending that the Appeals decision is in line with its settled policy of declaring a forfeiture for default in payment under contracts of this kind, and is not merely its conclusion based on the facts in this particular case. Raymond v. Railway Co., 52 OS. 271 and Brock v. Hidy, 13 OS. 306, cited.  