This cause is here on error proceedings from the municipal court of the city of Cleveland, wherein the action was to recover a balance, to wit, $822.96, with interest, due on a written contract for the sale of land. The plaintiff in error, the Will-O-Way Development Company, on the 16th day of October, 1926, was the owner of the property, *Page 526 and this is the date of the execution of the contract with the defendant in error, Violet Mills. The original sum was $1,100, and the defendant in error had already paid, prior to the commencement of the present action, $393.84, leaving due and payable on the contract the sum of $822.96. The suit is an action at law to recover the amount due by reason of the stipulations of the contract with respect to the payments, and it is urged that, notwithstanding the clause of the contract, the plaintiff had a right, among various remedies, to begin suit for the recovery of the money in a suit at law, instead of on the purchaser's default, plaintiff electing to rescind the contract and recover the real estate, or electing not to rescind and to recover the purchase price.
It is well enough to insert herein the salient clauses of the contract, which are:
"And second party does hereby agree to pay to the first party, its successors or assigns, for the land aforesaid, the sum of $1,100.00, payable as follows: $110.00 cash in hand, and the balance of $990.00 payable in forty equal consecutive monthly installments of $11.00 each, with interest at the rate of six per cent. per annum, computed quarterly, the entire remaining balance due and payable 40 months after date hereof, payments commencing on the 25th day of November, 1926, and monthly thereafter until paid, at such place as may be designated from time to time by the party of the first part. All payments to apply first on the interest and second on the principal. It is understood and agreed, however, that second party shall have the privilege of increasing any monthly payment or prepaying the whole consideration at any time. *Page 527
"Second party covenants to pay to first party the sums of money above mentioned on the days specified, with interest as specified if paid when due, but all overdue payments shall bear interest at the rate of 8% per annum. Second party further assumes and agrees to pay all taxes and assessments that may be levied or assessed upon said land for the first half of the year 1927, payable in December, 1927, and thereafter. * * *
"It is expressly agreed by and between the parties hereto that with respect to performance of all obligations herein imposed upon second party, time shall be of the essence of the contract, and that if any of said installments or the interest accrued thereon, or any taxes or assessments agreed to be paid by second party shall not be paid when due, then all of said installments remaining unpaid shall at once become due and payable at the option of first party, notice of the exercise of said option being expressly waived by second party."
It is contended by able counsel for the plaintiff in error that under the case of Woloveck v. Schueler, 19 Ohio App. 210, the company has a cause of action in the form of the statement of claim. It seems, however, that a demurrer was filed on the ground that the allegations were not sufficient to constitute a cause of action, and the demurrer was sustained, and this ruling of the lower court is here to be adjudged as a question of error.
It is conceded that there has been no tender of a deed conveying the title to the purchaser. We think this settles the vital question in the case, and is determinative of all others, because one of the fundamental propositions of the law is that, in case of contracts, *Page 528 no matter what form the procedure takes, full performance must be alleged and proven. That is axiomatic. It is an anomaly in the law, even in a case of the form of the present case, to insist upon full performance of the terms of the contract on the part of the vendee and not on the part of the vendor. The suit was for the balance due upon the contract. It may or may not be collectible. If it is collectible, and the money is recovered, of course there should be a conveyance by deed, and a delivery thereof in order to insure title. The present status of the case leaves that question in the air undisposed of, and thus with no real security to the purchaser of the property against whom the judgment has been entered. The eventuality might be, under such circumstances, the retention of the ownership of the land by the vendor and also of the purchase price thereof, a thing which would be highly inequitable and legally impossible.
Hence it is our judgment that the court below was correct in its ruling in sustaining the demurrer, and it is for the reason herein noted that we affirm the judgment of the court below.
Judgment affirmed.
VICKERY, P.J., and LEVINE, J., concur.
ON REHEARING.