
    No. 286
    HOFFMAN v. ROTH
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6727.
    Decided Dec. 7, 1925
    1029. RESCISSION — It is the universal right of parties to rescind their contracts, and defense may not deny this right, but if damaged, should set up such damages.
    Attorneys — Morris H. Wolfe for Hoffman; F. A. Silverman & Ben E. Jitchell for Roth; all of Cleveland.
   SULLIVAN, J.

Aaron Roth and Harry Hoffman entered into a contract whereby Hoffman was to sell to Roth a certain grocery store. Roth deposited $500 with Hoffman, said sum to apply on the purchase price of the store.

There was a condition in the said agreement that the seller was to pay the agent representing him in the sale, the sum of $50 as commission, and if not accepted by the agent, “this agreement shall be null and void.”

The contract of sale was never consummated, Roth rescinding and demanding a return of his deposit.

The cause was tried in the Cleveland Municipal Court, and Hoffman’s only defense was that Roth had no right to rescind and was therefore not entitled to recover the amount of his deposit. Court ruled for Roth. Hoffman prosecuted error and the Court of Appeals held:

1. It is the universal right of every party to a contract to rescind because the law makes him liable in damages.
2. The remedy of the injured party is not to deny the right of the other party to rescind, but to ascertain his damages and set them up as a cross claim to the claim of the plaintiff.

Judgment affirmed.  