Opinion
Decided April 4, 1927.
Pleading — Nature of action gathered from pleadings — Sale of furnace for residence — Breach of contract alleged, and not rescission and recovery of purchase price.
1. The nature of an action must be gathered from the pleadings.
2. Petition alleging that parties entered into contract whereby for certain consideration paid by plaintiff defendant agreed to and did install a furnace in plaintiff's residence, but that furnace failed to comply with warranty and that plaintiff was obliged to remove furnace to his damage in stated sum, held to state a cause of action for breach of contract, and not one to rescind contract of purchase and recover purchase price, notwithstanding amount of damage claimed was amount paid as purchase price.
ERROR: Court of Appeals for Hamilton county.
Mr. Paul Scudder and Mr. Frank E. Wood, for plaintiff in error.
Messrs. Cobb, Howard Bailey, for defendant in error.
This action grows out of the purchase and sale of a heating furnace for the home of the plaintiff, Thomas.
In the trial court, a jury was waived, and the cause was tried to the court. The trial court, after hearing, entered a judgment for the defendant, the Williamson Heater Company, defendant in error here. From that judgment, Thomas, plaintiff below, and plaintiff in error here, prosecutes error, seeking a reversal of the judgment.
On request, the trial court made separate findings of fact and conclusions of law. In its conclusions of law, the court found that the action was one to rescind a contract of purchase, and to recover the purchase price of the furnace. And further found that the plaintiff did not notify the defendant, within a reasonable time, of his intention to rescind.
Plaintiff in error, plaintiff below, contends that the court erred in its interpretation of the nature of the action, as being one for rescission, and contends that the action was for a breach of the contract of warranty.
It is the law that the nature of the action must be gathered from the pleadings. Raymond v. T., St. L. K.C. Ry. Co., 57 Ohio St. 271, 48 N.E. 1093; Frederickson v. Nye, 110 Ohio St. 459, 483, 144 N.E. 299, 35 A.L.R., 1163; Complete Bldg. Show Co. v. Albertson, 99 Ohio St. 11, 121 N.E. 817; Lust v. Farmers' Bank Savings Co., 114 Ohio St. 312, 151 N.E. 189. We must therefore look to the petition in this case to determine whether or not the action is one for rescission, or for damages for breach of contract.
The petition, in substance, alleges that the defendant, the Williamson Heater Company, is a corporation under the laws of Ohio; that on the 5th day of December, 1919, the plaintiff entered into a certain contract of writing with defendant, wherein, in consideration of the sum of $295 to be paid by the plaintiff to defendant, the defendant promised and agreed to furnish, erect, and install a furnace in the residence of the plaintiff, and to place in position all smoke and heating pipes necessary for the efficient operation of the furnace; that said contract contained certain warranties; that the plaintiff paid the purchase price of the furnace, and did all things on his part to be performed, but that the furnace failed to comply with the warranty contained in the contract; and that the plaintiff was obliged to, and did, remove the furnace from his residence, to his damage in the sum of $295.
The answer admitted the warranty and the payment of consideration, denied the other allegations of the petition, and interposed the additional defense that defendant was not permitted to make proper tests or demonstrations. And defendant claimed to be relieved from the operation of the warranty in the contract.
The pleadings show clearly that the action was for a breach of contract. The mere fact that the damage claimed is in the same amount as the purchase price does not alter the cause of action. Plaintiff might have claimed and may have sustained more damage than this amount, but he saw fit to only ask for an amount equivalent to the purchase price. This did not change the cause of action from one in damages to one for rescission. The court was, therefore, clearly in error in its finding of law as to the nature of the action.
It is argued that, if this was error on the part of the trial court, the record fails to show any specific amount of damage suffered. There is no bill of exceptions in the case. It is unnecessary to consider whether there was or was not sufficient evidence in the case to warrant the court in passing on the amount of damage, for the reason that the court did not reach this question. It only found, as heretofore shown, that the action was one for rescission and was barred by laches.
In the second conclusion of law the court found that the plaintiff did not comply with the provisions of the contract on his part. If this was an attempt to decide the question, as on a suit for breach of contract, it would be inconsistent with the other conclusions of law and against the findings of fact.
The judgment was, therefore, erroneous, and will be reversed, and the cause remanded for a new trial and further proceedings.
Judgment reversed.
CUSHING and BUCHWALTER, JJ., concur.