Opinion
Decided February 27, 1928.
Breach of contract — Purchase and sale of real estate — Vendee's earnest money cannot be applied towards vendee's unpaid rent due vendor, when.
Trial court erred in permitting vendor's agent to apply vendee's deposit on purchase price toward payment of rent due by vendee, where vendee was entitled to return of deposit because sale was never consummated, and rent due, if any, was not pleaded as set-off, and no authority was alleged for making such application.
ERROR: Court of Appeals for Hamilton county.
Mr. Joseph T. Harrison, for plaintiff in error.
Messrs. Pogue, Hoffheimer Pogue, for defendants in error.
This case grows out of the claimed breach of a contract concerning the purchase and sale of real estate. There are several questions sought to be raised in the case going to the measure of damage and concerning liability under written contracts. It would serve no purpose to make a complete statement of the case, which would require an extended opinion.
Our examination of the case leads to the conclusion that the plaintiff in error, Catherine Hess, is not entitled to damages other than the return of the $200, which she deposited with defendant in error J. Blaine Forbes to be applied on the purchase price when the sale of the real estate in question was consummated. The sale was never consummated, and there is no question that plaintiff in error is entitled to the return of the $200 deposit.
It appears that the plaintiff in error was a tenant of the premises in question, and that Forbes, the defendant in error, collected the rent for the benefit of the owners.
The answer of the defendant in error J. Blaine Forbes admits the receipt by him of $200 from the plaintiff in error, and states that it was deposited as earnest money, and that he, acting as agent for the heirs of John Hoban, deceased, for the collection of rents, applied the $200 toward the payment of the rent. The rent due, if any, was not pleaded as a set-off; nor does the answer show any authority for applying the money to the payment of rent; Forbes applied the money on his own conception of his duty as an agent of the landlord.
The trial court permitted the deduction for rent from the $200, and, in this, the court was in error.
The judgment of the court of common pleas will be modified by rendering judgment for Catherine Hess, plaintiff in error here, plaintiff below, for the sum of $200, deposited as earnest money, with interest thereon from the date of the filing of her action.
The judgment, as modified, will be affirmed.
Judgment modified and affirmed.
MILLS and CUSHING, JJ., concur.