
    KAPLAN et v BROWN, Admr, Etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos 13510 & 13511.
    Decided May 31, 1934
    M. Q. Critchfield, Cleveland, and O. Graeff, Cleveland, for plaintiffs in error.
    Snyder, Thompson, Ford, Seagrave and Roudebush, Cleveland, for defendant in error.
    HAMILTON, PJ, and ROSS, J, (.1st Dist), and WILLIAMS, J, (6th.Dist), sitting.
   OPINION

By ROSS, J.

An, examination of the record shows issues of fact which required the intervention of a jury. Obviously, the pleadings show the case to be one required to be tried to a jury. The record shows no waiver or estoppel.

The lease provided for the deposit of certain securities with the lessor by the lessees in order to guarantee performance. It appears that in lieu of these a bond of the Maryland Casualty Company was accepted. While the lease provides that the securities to the amount of $9000.00 are to be accepted as liquidated damages, in case of default, the two bonds in total amount of $9000.00 do not so provide.

The amount of actual damages by reason of the default therefore at least as far as the Casualty Company was concerned became a question for the jury.

The agency and acts of the agent of lessors also involve questions of fact upon which a jury only could pass in the absence of a waiver.

For these reasons the judgment of the Court of Common Pleas is reversed, and the cause is remanded for a new trial according to law.

HAMILTON, PJ, and WILLIAMS, J, concur.  