
    No. 589
    LASH, Admr. v. SELTZER ROUND CO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5715.
    Decided May 8, 1925.
    Judges Richards, Williams and Young; 6th Dist., sitting.
    997. REAL ESTATE—In land contract, where vendee is in default, doctrine that the amount paid in is so grossly disproportionate and extravagent to the actual damages, as to be a penalty rather than liquidated damages; cannot be availed of, when vendor does not repudiate contract and offers to continue under it.
    Attorneys—D. M. Bader, for Lash; W. J. Agnew for Company; all of Cleveland.
   RICHARDS, J.

A contract was entered into by Mary Lash, now deceased, to purchase from the Seltzer Round Co., a piece of real estate on Garfield Heights. The purchase price was $1740 on which a small cash payment was made, the purchaser agreeing to make monthly payments thereafter of $17.40. She paid $417.20 in all and then became delinquent in her payments and subsequently died, and her son, John Lash, was appointed the administrator of her estate. Some time after her decease the administrator brought an action to recover back the money paid and the Cleveland Municipal Court rendered judgment in favor of the company.

Error was prosecuted and the Court of Appeals held:

1. The evidence shows without dispute, that th^MtaLmt broke the contract and failed to compl^^^HM^ts terms in regards to making payments provided by it.

2. The Seltze^^fcmd Co. avers that it has at all times, and sl^f^s desire John Lash as administrator of Ma^^nsh, to carry out the obligations of the con^^^and that upon performance thereof by sBjH^dministrator it is willing and able to per^P® all its obligations thereunder.

3. There is no authority that would justify the purchaser under a land contract, or administrator, or legal representative of the purchaser, to break the contract and then be entitled to recover the amount which had been theretofore paid.

4. In view of the fact that the company offers to carry out the contract, there can be no application of the doctrine contended for; that the amount paid is so grossly extravagant and disproportionate to the actual damages as to be a penalty rather than liquidated damages.

Judgment affirmed.  