
    No. 831
    LARONGE v. INGLE
    Ohio Appeals, 8th District, Cuyahoga County
    No. 4504.
    Decided Sept. 24, 1923
    339. SPECIFIC PERFORMANCE.
    Decree for specific performance and also damages for breach of contract is erroneous.
    Attorneys — H. DuLaurence and J. H. Read, for Laronge; G. E. Morgan, for Ingle.
   LEVINE, J.

Epitomized Opinion

Laronge agreed to sell and Ingle agreed to buy ;ertain improved property. Ingle paid all there was due under the contract except $1,000. This is m action for specific performance and also for damages. Ingle alleged that Laronge breached the-:ontract by failing to deliver a warranty deed and n failing to convey the building as per contract. The trial court decreed specific performance and also damages. It is assigned as error that the petition failed to allege a tender of the amount due, and also that the court should not decree specific performance and damages, but specific performance and damages, but specific performance with compensation. It is also claimed that the trial court applied an improper measure of idamiages. In reversing the judgment, the Court of Appeals held:

1. Where a defect is material, the vendee may refuse performance or have specific performance with compensation. It was competent to pray for compensation but it is doubted if the existence of a defect would excuse a tender of the purchase price. The vendee may refuse performance and sue for a breach of contract because of the nonperformance of the vendor, but he cannot sue for specific performance and damages. It must be specific performance with compensation, which is merely a reduction from the purchase price by a court of equity. Damages for breach of contract is based upon definite standards adopted by the law.

2. The trial court applied an improper measure of damages in that items were allowed by way of damages which are not justified by the terms of the contract.  