Fish v. Robinson

88 Ohio St. (N.S.) 626

• Court: Ohio Supreme Court
• Decided: October 7, 1913
• Docket: No. 13267
• Status: Published

Opinion

Judgments of the circuit and superior courts reversed. Judgment for plaintiffs in error on the pleadings. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; and this court finds that the said circuit court erred in affirming the judgment of the superior court of Cincinnati in said cause, and that the said superior court erred in sustaining the motion of the plaintiff in said cause in said court for judgment on the-pleadings and erred in entering judgment on the pleadings. This court finds that the following provision in' the lease set out in said pleadings, to-wit: “It is understood that the parties of the second part shall not sell, rent, transfer or assign the lea'sed premises, or any part thereof, without the written' consent of the party of the first part, or his authorized agent, under a forfeiture of five thousand dollars,” is a provision for a penalty not enforcible in said action. ' ’ •

Coming now to render the judgment which the ■said superior court should have rendered, it ■ is ordered and adjudged that the petition of the" plaintiff in the said superior court be, and the same is hereby, dismissed.

Johnson, Donahue, Wanamaker. •. Newman and Wilkin, JJ., concur.