
    No. 24
    BENESCH v. CEDAR HEIGHTS LAND CO.
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4617.
    Decided Nov. 5, 1923
    1101. PERFORMANCE — Facts disclosing that plaintiff, as trustee, was not the real party in interest, held sufficient to dismiss action.
    870. OPTION — Facts showing that a continuing option had become binding by an acceptance defeats specific performance.
    Attorneys — Herrick, Hopkins, Stockwell & Benesch, and Locher, Green & Woods, for Benesch; Stearns, Chamberlin & Royon, for Cedar Heights Land Company.
   VICKERY, J.

Epitomized Opinion

First Publication of this Opinion

This is an action for specific performance of a contract. Benesch was appointed trustee for the purpose of bringing suit because Dr. Rosenwasser, the real party, in interest did not want to appear' in the litigation. The Land Company had an option to sell the land in question until a certain date. The option was exclusive in character. No consideration was given for this option. Before its termination the defendants notified Rosenwasser that it had procured a purchaser. The trial court rendered judgment for the defendant, whereupon plaintiff appealed. In sustaining the judgment' of the lower court, the Court of Appeals held:

1. That although Benesch was not a real party in interest, and the case could be dismissed on that ground alone, yet this feature of the case was intentionally overlooked by the Court of Appeals, and the former was tried as a real party.

' 2. The option was a continuing offer to sell and as it was accepted before it was withdrawn or terminated, a valid contract was made, and therefore the plaintiff was not entitled to specific performance.  