Tippett, Exrx. v. Miles
This text of 204 N.E.2d 64 (Tippett, Exrx. v. Miles) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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This is an appeal on questions of law by Walter P. Miles, appellant herein, defendant below, from the final order of the court below awarding judgment in the amount of $6,150 and costs in favor of Elizabeth Tippett, executrix of the estate of Charles S. Strayer, deceased.
All the facts were stipulated, a jury was waived, and the matter was submitted to the court below acting as judge and jury.
It appears that on May 22, 1946, Charles S. Strayer and Martha G. Strayer, husband and wife respectively, hereinafter called Strayers, and Walter P. Miles entered into an agreement under which the Strayers sold, conveyed and delivered to Miles stock in three Ohio corporations as follows: The Garden Amusement Company, 124 shares; Hudson Amusement Company, 124 shares; and Northern Theatre, Inc., 124 shares, in consideration for the payment by Miles of one dollar and his promise to pay to the Strayers, or the survivor, $50 per week for their lives. In addition, Miles agreed to carry life insurance on his life in the amount of $10,000, pledged to meet the $50 weekly payments.
On or about April 4, 1959, Mrs. Strayer died and on or about May 15, 1959, Mr. Strayer died. It appears that Miles made the $50 weekly payments from the time the agreement was entered into until February 1950, and that for a period of 123 weeks, ending in May 1953, he made no payments at all. From May 18, 1953, until the death of Mr. Strayer, Miles made payments of $50 each week. Mrs. Strayer had died before the death of her husband.
Plaintiff, appellee herein, as executrix of the estate of Charles S. Strayer, deceased, on December 3, 1959, filed a petition in the Court of Common Pleas of Franklin County, seeking judgment for $8,400, with interest and costs for a total of 168 weeks at $50 per week. On behalf of defendant the execution of the contract and the delivery of the stock from the Strayers to Miles were admitted. The contract in the final paragraph on the first page gave the Strayers "at his or her option," in the event of the failure of Miles to make any payment, the right to make *Page 152 demand for payment which, if not paid in fourteen days, "then this contract shall be considered to be in default and the balance due under it shall be computed * * *."
Because the Strayers did not exercise this "option" the defendant contends that the Strayers waived and forfeited the right to collect for the period during which admittedly no payments were made.
The contract expressly provides that the payments of $50 a week shall be due and payable during the lives of the Strayers, or the survivor, and the provision as to declaring the contract in default in the event of a failure on the part of Miles to make any weekly payment is clearly and expressly made subject to the wishes of the Strayers, "at his or her option." The failure of the Strayers to exercise this option would seem to have no effect on the duties or responsibilities of Miles.
In the court below, the above defense was interposed by Miles but was rejected. It was stipulated that Miles had defaulted in payments for 123 weeks at $50 per week for which judgment in the amount of $6,150 and costs was awarded.
The errors assigned are that (1) the judgment is not supported by sufficient evidence and is contrary to law, (2) the trial court erred in overruling defendant's motion for a new trial and (3) the judgment is against the weight of the evidence.
After careful consideration of the three errors assigned, the record and original papers, the two opinions of the court below, the briefs and the arguments of counsel, we have concluded that the decision of the court below does not contain errors prejudicial to defendant, that the judgment of the court below is supported by sufficient evidence; that it is not contrary to law; that the court below did not err in overruling defendant's motion for a new trial; and that the judgment is not against the weight of the evidence.
We conclude that the three errors assigned, and each of them, are not well taken and must be overruled; that the judgment of the court below must be, and is, affirmed at the costs of defendant; and that the cause be remanded to the court below for enforcement of the judgment and costs.
Judgment affirmed.
DUFFY, P. J., and TROOP, J., concur. *Page 153
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Cite This Page — Counsel Stack
204 N.E.2d 64, 1 Ohio App. 2d 150, 30 Ohio Op. 2d 166, 1964 Ohio App. LEXIS 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tippett-exrx-v-miles-ohioctapp-1964.