
    No. 837
    OAKWOOD REAL ESTATE CO. v. NOLTE et
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 697-99.
    Decided April 26, 1926
    480. EVIDENCE — Where covenant provides indefinitely for improvement on “abutting streets,” extrinsic evidence may be properly introduced to show what streets were to be regarded as abutting.
    Attorneys — James & Coolidge for Company; W. B. Sullivan and John H. Shively for Nolte et; all of Dayton.
   BY THE COURT.

The original actions were brought by three lot owners in the Montgomery Common Pleas, to recover the amount of assessments made against their lots for the improvement of Schantz Avenue and for the estimated value of construction of said street.

The actions were based upon covenants contained in the deeds from the Oakwood Real Estate Co., the covenants providing “That it will grade and pave with - - - cement - - - - that portion of the street abutting on said lot ......” Whether or not Schantz Avenue is to be regarded as an abutting street within the covenant caused the controversy to arise. The lower court held in favor of the lot owners. On error proceedings, the Court of Appeals held:

1. The covenant not being definite as to the particular street or streets involved, it was competent to introduce extrinsic evidence to prove what street of streets were to be regarded as abutting streets.
2. The lower court found Schantz Avenue was contemplated by the parties as an abutting street, and the evidence justifies the finding.
3. The contention of the Company that the assessments were payable yearly over a period of ten years and that the judgment for the full assessments together with interest in favor of the lot owners should not stand is well founded; and the judgment will be reduced by calculating the present worth of the assessments five years from the date the assessments were made.

Judgment affirmed, as modified.  