
    Coppolina et al. v. Radice.
    (Decided April 23, 1928.)
    
      Mr. Louis A. Perry, for appellant.
    
      Messrs. Lorman, Roob é Quallich, for appellees.
   Sullivan, P. J.

This cause is here on appeal hy the defendant, Guiseppe Radice, and it appears from the evidence that the appellant executed a certain instrument in writing for the purchase price of a lot on Sunset Drive in Cuyahoga county, that there was a down payment, and provision made for the balance due. The document itself reads as follows:

“Cleveland, Ohio, March 15, 1926.

“Received from Leone and Roselia Coppolino the sum of Fifty Dollars $50.00 part of the purchase price of lot No. 85 in Sunset Drive, for the sum of • Three Hundred Dollars $300.00, received Fifty Dollars and the balance is Two Hundred Fifty Dollars $250.00 and there remain to pay Two Hundred Fifty Dollars $250.00 because the price was established for Three Hundred Dollars $300.00 net without expenses for documents and I will give this lot free and clear of any debts whatsoever.

[Signed] Gio. Radice.”

It is claimed that the appellant on the date of this instrument of writing, and at the time of the execu- . tion thereof, was so intoxicated by the use of liquor said to have been furnished at the home of appellees that he was deprived of the use of his faculties, and that therefore the execution of the instrument was not voluntary, nor made with an understanding of what he was doing.

There is a conflict in the evidence as to his condition. It is claimed by the appellant, Radice, that he was unconscious of the act until about May 28,1926, when Coppolina made a demand upon him for the conveyance of the lot, and then and thereupon showed him the agreement above noted.

This is not an error case, as the brief of the appellant would seem to imply, because he undertakes therein to point, ont certain alleged errors of law committed by the court below. Under legal procedure this case is heard in this court de novo, and therefore it becomes the.duty of the court to hear the case and adjudicate thereon without reference to any alleged errors which are assigned in the brief.

There appears to be credible evidence in the record to support the decree below. That the evidence is conflicting as to the condition of the appellant there can be no question; but this court weighs the evidence according to the probative force which it deems is supported by all of the evidence and circumstances in the case, and we have come to the conclusion that the evidence is not sufficient in probative value to decree that the instrument above set forth is null and void, or voidable, because of the alleged intoxicated condition of the appellant.

To set aside an instrument like the one under discussion, the evidence should be clear and convincing, and the burden is upon the party asserting its invalidity to prove that it has no legal force by reason of the effect of the liquor upon his mind. One of the elements in the case is the charge that the inadequacy of the price for which the land was purchased is an element of fraud that succeeded because of the alleged intoxicated condition, which, it is claimed, is sufficient to set aside the instrument, on the ground that under the authorities a contract made when one is in such a state of intoxication as to deprive him of his judgment and discretion may be set aside in equity, even though the opposing party had no agency in producing the intoxication. Upon this question of inadequacy we find from the record that there is credible evidence to support the theory of the appellee Coppolina that the property was sold within reason of the fair market value, and the fact that part of the purchase price was paid down, as indicated by the receipt, is a convincing situation in the record that the appellant was prepared on March 15,1926, to conform to the proposition made by the appellees in relation to the sale of the property. Thus, we conclude that there is no evidence of such fraud by reason of disparity in value or otherwise as would warrant the court in setting aside the instrument executed by appellant.

It is further urged that specific performance cannot be granted because the wife of appellant was not a party to the instrument, and that her dower is in the property. It is conceded that the decree sought is not a specific performance to the extent of including the dower, but only whatever interests the husband alone has, and therefore the dower remains undisturbed.

In Caple v. Crane, 10 Ohio App., 461, we see nothing which opposes this view, for in that case it was contemplated by the parties that the title should be conveyed free from the dower right of the wife, but in this case there is no such element, and the distinction may be seen by reading the following from the syllabus of that case: “Where the plaintiff enters into a written contract for the purchase of real estate with the owners thereof, and knows that such owners are married, but the wives of such owners do not sign the contract although it was contemplated by the parties that the title should be conveyed free from the dower rights of the wives, and where the wives, without fraud or collusion with their husbands, refuse to execute deeds conveying such real estate, a decree of specific performance will not be granted against the owners, with a provision for an abatement from the purchase price .of the value of the inchoate right of dower of the wives, but the plaintiff will be remitted to his claim for damages for breach of the contract.”

In Owens v. Hall, 13 Ohio St., 571, it is claimed by able counsel that the court below was in error, because in the journal entry there is no finding as to performance on the part of the plaintiff of his part of the terms of the agreement. As aforesaid, this is not a proceeding in error, and the decree that will be entered in this case will bear no relationship to the decree which has been entered in the court below. Of course, it must be assumed that specific performance cannot be decreed if the party demanding is derelict on his own part, but that does not appear to be the fact in the case at bar; nor is the issue raised sufficiently in the record.

If the decree below was deficient in this respect, it may be corrected in the decree in this court.

With these views we order a decree in favor of the appellees, Leone Coppolina et al., and against the appellant, Gruiseppe Radice.

Decree for appellees.

Levine and Vickery, JJ., concur.  