Watkins filed his petition in the Summit Common Pleas in the nature of an action at law, to recover back $519.19 from the Eastland Company No. 5, which had been paid to him on a land contract as part of the purchase price for a lot in an allotment laid out by the company. A demurrer to the petition was sustained. Judgment was rendered upon the pleadings’ at this point, in favor of the company.
Error was prosecuted to the Court of Appeals. The sole question for determination being whether or not the petition states facts sufficient to constitute a cause of action. In other words, does the company’s failure to construct water mains and lay sidewalks as provided in the contract, entitle Watkins to the right to rescind the contract and sue for recovery of the amount paid? The Court of Appeals held:
1. If the right to rescind the contract existed, which would give Watkins a cause of action, the covenants would have to be depend-ant on each other. Independent covenants give the party the right to sue for damages onyl.
2. As to whether or not a covenant is dependent or independent, depends upon the intention of the parties, as shown by the entire contrae!, as construed in the light of the circumstances of the case, the nature of the contract and other evidence which is admissible to aid the court in ascertáining the intention of the parties, citing 1 Ohio 330 and othér authorities^
3. Covenants .pertaining to water, sewers and sidewalks are independent covenants, such as would not entitle Watkins to rescind the contract arid sue for. the recovery of the part of the purchase price already paid, but his remedy is an, action for damages for failure to *179perform the covenants as agreed. Judgment Mai court affirmed.
•»ys—John Mcltnosh for Watkins; Harter, Walker & Watters, for Com-1 of Akron.