
    No. 750
    NIEDLER v. MACK et al
    Ohio Appeals, 6th District, Erie County
    No. 189.
    Decided Sept. 28, 1923
    This opinion has not been published except in Abstract.
    165. EQUITY.
    As between two innocent persons the one must suffer who makes it possible for the wrong-doer to perpetrate a wrong — Disposal of crops, by tenant, without landlord’s knowledge.
   RICHARDS, JJ.

Epitomized Opinion

This is an action to enjoin the removel of a crop of rye. The land upon which the crop was growing was owned by plaintiff. In 1921 the plaintiff had entered into a contract of sale of this land to one Witter, "who assumed possession underneath the terms of this agreement. Witter paid the interest and taxes on the premises, but did not pay the purchase price of the same. After being- in possession for over a year he planted a crop 'of rye in the fall of 1922. In December of the same year he sold this crop of rye to his. mother-in-law, who in turn disposed of the same at public sale. After the rye had been cut and put in shocks, plaintiff brought this action for an injunction to restrain the removal of the same from the premises. The injunction was refused -by Judge Williams of /Sandusky, Ohio, whereupon an appeal was prosecuted to the Court of Appeals. In sustaining the judgment of the 'lower court, the Court of Appeals held:

Attorneys — G. F. Eshenroder, for Niedler; E. S. Stephens, for Mack et al.

1. Where one of two innocent persons must suffer, the one to suffer is the person who has put it into the power of another person to take unjust advantage; consequently as the plaintiff put it into the power of Witter to dispose of the crop, and took no steps to apprise the public of the fact that the crop was on his land, he is entitled to no relief in equity. Injunction dissolved.  