
    No. 71
    PHILLIPS v. STEIN
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5919.
    Decided Oct. 5, 1925
    923. PLEADINGS — A reviewing court will reverse a judgment where the arguments and brief shows that the pleading does not state the correct cause of action.
    Attorneys — H. H. Henry, for Phillips; Klein and Klein for Stein; all of Cleveland.
   PER CURIAM.

Morris Stein brought this action against Kate Phillips in the' Cuyahoga Common Pleas upon a contract by virtue of which Stein was to furnish material and labor in the installation of plumbing, one of the specifications of the contract being that Phillips was to pay for such material and labor only after it was certified by the architect. Stein’s petition, it seems, alleged that he had complied with the terms of the contract, while Phillips failed to comply thereto. Stein recovered a judgment in the Common Pleas and Phillips prosecuted error. The Court of Appeals held:

1. The argument and brief of counsel for Stein indicates that Stein’s petition does not state the correct cause of action.
2. The action should have been in effect, that Stein completed a portion of the work, but was justified from further carrying out the terms of the contract because of the noncompliance thereof on part of Phillips.
3. Upon the face of the pleading, the verdict is not justified.

Judgment reversed.  