
    WAYNE-OHIO CO v WHARTON et
    Ohio Appeals, 9th Dist, Summit Co .
    No 1827.
    Decided June 17, 1930
    Musser, Kimber & Huffman, Akron, for Company. .•
    Myers, Dinsmore & Whittemore, Akron, for Wharton, et.
   PER CURIAM

We have carefully read the bill of exceptions and considered the law applicable thereto, and are of the opinion that said C. P. Wharton is entitled to a judgment against the Wayne-Ohio Company in an action at law for breach of contract in an amount equal to one-half of the judgment that was entered, but there being no evidence of the assignment by said J. L. Smith to said H. A. Whittemore, the other plaintiff below, of Smith’s right of .action against the plaintiff in error for breach of said contract to make the improvements, and it not being a covenant running with the land, said judgment against plaintiff in error and in favor of Whittemore for one-half of the damages caused by thq failure of plaintiff in error to comply with its original contract to make said improvements is erroneous and contrary to law.

The judgment of the Court of Common Pleas is' therefore modified by striking therefrom the name of H. A. Whittemore and reducing said judgment to one-half of the amount thereof, and as so modified the same is affirmed as to C. F. Wharton. The judgment as to H. A. Whittemore is reversed, and the cause as between him and the plaintiff in error is remanded to the Court of Common Pleas.

Funk, PJ, Pardee, J, and Washburn, J, concur.  