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    HUNTINGTON & FINKE CO. v. LAKE ERIE LUMBER CO.
    Ohio Court of Appeals, Cuyahoga County.
    No. 4088.
    February 8, 1923
    This opinion ihas not been published except in Abstract
    CONTRACTS — (1) Rescission.
    Sayre, Middleton and Manck, 4th District, sitting.
    Attorneys, Howell, Roberts & Duncan, for plaintiff; Messrs Tolies, Hogsett, Ginn & Morley, for defendant.
   MIDDLETON, J.

Epitomized Opinion

The Huntington & Finke Co. sued defendant on an account for - lath sold and delivered. The defendant admitted its indebtedness for the lath, but claimed as a counter-claim that the plaintiff had failed to deliver other lath. The defendant contended that the other lath was contained in two orders of five carloads each, which orders were accepted by plaintiff, and that plaintiff had delivered only three carloads on both of these orders. The plaintiff contended that one of these orders had been rejected and the other was later cancelled because defendant had not paid for other lath purchased. As plaintiff could not establish its claim by the evidence, the Common Pleas Court rendered a verdict for defendant for $10,491.98. Plaintiff prosecuted error proceedings. Held by the Appellate Court:

1. Where the evidence shows that one party to a contract did not refuse to perform the agreement because of any default on the part of the other party in paying for the goods it had received according to the terms of the contract, but that its failure to ship was due entirely to other conditions, that party can not later avoid liability by claiming that the agreement was terminated by said failure to pay.

See also Bishopric Co. v. Ferguson. I Abs., p. 11, 105 O. S. 274.  