Reubel v. M. & E. Canal

1 Hosea's Rep. 509

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1907
• Status: Published

Opinion

Hosea, J.

Opinion on demurrer to petition.

This is a demurrer to a petition filed by the American Car & Foundry Company asking an order directing the receivers to return to the petitioner certain property purchased by the defendant upon a cash contract and allegd to have been delivered by mistake without payment; or to authorize suit in replevin against the receivers.

This property was delivered on board cars at Huntington, West Virginia, on May 14th, 1903, but no date of actual delivery to defendant is shown. The petition was filed July 22d, 1903, and it is claimed that the delay thus shown — from May 14th to July 22d — is conclusive evidence of a waiver of the contract stipulation for payment before delivery.

Under the contract set forth, payment was a condition precedent to the transfer of title by delivery of possession (23 Ohio St., 311, Wabash Elevator Co. v. Bank) and where there is no waiver of payment no title vests until the price is paid.

Mere delay, as between the parties, which is not indicative of an election not to rescind the contract, and is not to the injury of the other party, does not forfeit the right of vendor to rescind. 33 Ohio State, 63, Hodgson v. Barrett.

A waiver, by one party to an agreement, of a stipulation in his favor is not a performance of that stipulation by the other. It may be an excuse for non-performance, and, as such, should be pleaded. 37 Ohio State, 49, Methurin v. Stone.

It is obvious, upon these authorities as well as the general principles of law, that if there is any merit at all in the contention, it must be taken by answer, and not by demurrer. It is a question of fact for the jury.

Demurrer overruled.