
    No. 14119.
    Straus et al., Partners, v. Stern et al.
    Decided December 15, 1914.
    Journal entry: It appearing from the record that the defendant in error Matilda Stern has not fully complied with the terms of her contract with plaintiffs in error, dated February 26, 1909, deposited with the deed and escrow memorandum with the Northern National Bank, and it further appearing that said plaintiffs in error have not waived performance on the part of defendant in error in any particular therein named, and have in nowise interfered with or prevented said defendant in error Matilda Stern from complying therewith, and have not refused nor has their grantee refused to permit an action to quiet title to these premises to be brought in the name of either of said parties, if the same should become necessary, and for these reasons the court finds that this action was prematurely brought in the common pleas court of Lucas county, and the court of appeals erred in affirming the judgment of that court.
    
      Error to Court of Appeals of Lucas county.
    
      Mr. S. C. Hub-bell and Messrs. Doyle & Lewis, for plaintiffs in error.
    
      Messrs. Kohn, Northup & Morgan, for defendants in error.
   Judgment reversed. Petition dismissed without prejudice.

It is, therefore, considered and adjudged by this court that the judgment of the court of appeals be, and the same hereby is, reversed.

And coming now to render the judgment that the court of appeals should have rendered, the judgment of the common pleas court in this action is hereby reversed, set aside and held for naught, and said action is dismissed without prejudice to a new action when defendant in error Matilda Stern shall have complied with the terms of said contract, or the same shall become impossible of performance by reason of the default, hindrance or refusal of the plaintiffs in error or their assignees or grantees to permit suit to be brought in the name of the real party in interest to quiet the title thereto. — Reporter.

Shauck, Johnson, Donahue and Newman, JJ., concur,  