At times in this court, a case after submission is assigned to a member for opinion before the full court has agreed on the judgment. In that situation, final consideration is deferred until the opinion is prepared and the court may consider it along with the evidence and the briefs. That was the procedure followed on this appeal and explains why the minority opinion sets forth the operative facts and discusses the specific assignments of error and cases cited by counsel.
We adopt the statement of facts and are in accord with the minority opinion in the main, but differ as to the judgment which should be entered here, which we find should be an affirmance. The minority opinion does not pass upon the legal issues *Page 224 urged and briefed in this court, but concludes that inasmuch as no equitable defense was pleaded in the trial court, it erred in entering judgment for the defendant.
We are of opinion that the equitable defense upon which the defendant relied was by common consent, in the trial court, stipulated, presented and argued, and that the trial judge properly decided it upon the theory that the defendant was asserting such defense. The defendant, by the authority of Section 2309.58, Revised Code, should now be permitted, in the interest of justice, to file an answer setting up his equitable defense in accord with the proof. This would be, in effect, an amendment to the answer of a general denial which is made proforma in the Municipal Court in forcible detainer actions where a defense is interposed.
The trial judge upon his findings of fact held that in equity forfeiture of the lease upon which the plaintiffs rely should not be decreed because based upon the breach of the contract to pay rent, which was but security for the performance of that obligation which had been tendered.
Plaintiffs contend here, as in the trial court, that the other several clauses in the contract supporting their rights to forfeiture were broader than, and independent of, that one relating exclusively to default in the amount and time of rental payments.
We are of opinion that, notwithstanding the multiphrased provisions for forfeiture in the lease, the central and dominant intent and purpose was to assure the payments by lessee of the rents in the amounts and at the time provided therein. The court did not err in so holding and in applying the well-recognized principle that "equity abhors a forfeiture and will only decree it when such relief is clearly required," and that breach of conditions as to payment of rent alone does not necessarily require such action.
Without detailing the facts, it is clear that the equities in this case are with the defendant. Conceded that there was a breach of the condition respecting the payment of the rent, it was not because of any fault of the defendant, but of his lessor through whom the plaintiff throughout the years had received the rent. *Page 225
Because of our view that the judgment may be affirmed upon the issues drawn and decided in the trial court, we refrain from projecting and discussing in this opinion other issues that might, upon the factual developments, have been raised.
We find no prejudicial error in this record. The judgment is affirmed.
Judgment affirmed.
MILLER, P. J., concurs.