
    Security Sewage Equipment Co. v. McFerren et al. 
    
    
      (No. 51290
    Decided September 7, 1966.)
    Common Pleas Court of Jefferson County.
    
      
       Judgment of Court of Appeals reversed and Common Pleas Court affirmed. 14 Ohio St. 2d 251,
    
   GriesiNgeR, J.

At the beginning, the parties waived any right that they might have to a jury trial and agreed that the issues in this ease be tried and determined by the court without the intervention of a jury.

In the petition, the plaintiff in its first cause of action sets forth a claim for a breach of a contract and in its second cause of action sets up a claim for a mechanic’s lien on real estate owned by the defendants for the amount claimed by reason of said breach.

To the plaintiff’s petition, the defendants filed an answer and, after admitting several preliminary matters, denied generally the allegations of the petition. The defendants also filed a cross-petition claiming the plaintiff damaged them by placing said mechanic’s lien on the property and interfering with the sale of lots in their subdivision.

As often happens, many immaterial matters were brought into this case which tended to obscure the real or important issue involved.

It appears from the evidence that the defendants were engaged in developing a subdivision called Walton Acres, in Jefferson County, in the vicinity of Toronto, Ohio. They were anxious to secure a sewage system for said subdivision and after some investigation decided upon the system which was manufactured by the plaintiff.

A contract was entered into by and between the parties to this lawsuit and in said contract, for a certain consideration, the plaintiff agreed among other things to:

“ (3) Seller agrees to install the entire aforementioned Unit and to complete and make it ready for use, and operation by the Buyer, at the delivery address above specified * * *” (Emphasis added.)

Section 3701.18, Bevised Code, provides in part as follows:

“No municipal corporation * * * or other person shall provide or install a * * * sewerage or purification or treatment works * * sewage disposal * * * or sewage treatment works until tlie plans therefor have been submitted to and approved by the department of health.” (Emphasis added.)

This statute also provides a penalty for the violation thereof.

This section of the statute must be read into and made a part of said contract.

At the time of the signing of said contract, the plans therefor had neither been submitted to nor approved by the department of health. They were later submitted to and disapproved by the department of health.

In view of said statute, a valid or enforceable contract to install and to complete and make ready for use a sewage system implies or presupposes as a condition precedent the approval of the department of health.

We must keep in mind this was not only a contract for the sale, but also a contract for the installation, completion and making ready for use of a sewage disposal plant for said subdivision.

There is nothing in the law or in the contract that provides that the defendants must do anything towards the securing of the approval of the department of health or to prevail upon the county commissioners to form a sewage district and take over the operation of such a plant, or which would require the defendants or anyone else to create and operate a public utility for the purpose of operating a sewage disposal plant.

In 12 American Jurisprudence 954, Section 379, it is stated:

“No contract can be properly carried into effect which was originally made contrary to the provisions of law # # *77

Certainly the plaintiff entered into a contract to do something which was contrary to the provisions of Section 3701.18, Bevised Code, and it could not therefore enter into an enforceable contract to do this before said plans were approved by the department of health.

Said contract if not invalid is certainly unenforceable.

As to the cross-petition, the defendants have failed to offer sufficient evidence to support their cross-petition.

The court will therefore approve an entry dismissing the plaintiff’s petition and the defendants’ cross-petition; each party to bear their own costs.  