Meeker v. Shafranek

• Decision Date: 07 December 1960
• Citation: 112 Ohio App. 320,176 N.E.2d 293
• Parties: , 16 O.O.2d 32 MEEKER et al., Appellees, v. SHAFRANEK, Appellant. *
• Court: Ohio Court of Appeals

Page 320

112 Ohio App. 320

176 N.E.2d 293, 16 O.O.2d 32

MEEKER et al., Appellees, v. SHAFRANEK, Appellant. ^*

Court of Appeals of Ohio, Ninth District, Summit County.

Dec. 7, 1960.

Syllabus by the Court

1. A petition which pleads the execution of a contract for the sale of land and buildings, and a breach thereof by the defendant, for the reason that 'the garage encroached upon land owned by an adjoining landowner,' and asking for damages 'by reason of said encroachment,' states a cause of action in contract.

2. An averment in a petition pleading a breach of contract that the purchaser was induced to enter into the contract through the misrepresentation that the vendor owned the land and the buildings thereon, does not change the action from one ex contractu to one ex delicto.

3. If the cause of action arises from a breach of contract, the action is ex contractu; and if the cause of action arises from a breach of duty growing out of the contract, it is in form ex delicto.

John R. Quine, Akron, for appellees.

John R. Shepherd, Hudson, for appellant.

DOYLE, Presiding Judge.

This is an appeal from a judgment rendered in the Municipal Court of Cuyahoga Falls in the amount of fifteen hundred dollars, in favor of the plaintiffs, the appellees in this court, and against the defendant, the appellant in this court.

The second amended petition alleged that:

1. On March 9, 1953, James W. Meeker, Jr., and Mary Ann Meeker, entered into a contract in writing with Mary M. Shafranek for the purchase of her real property, 'consisting of a house and garage located on a lot of land owned by defendant [Mary M. Shafranek] on Ravenna Road in the city of Hudson, Ohio, for a purchase price of ten thousand dollars * * *, and that plaintiff [James W. Meeker, Jr., and Mary Ann Meeker] have fully performed all of the terms and conditions of such contract on their part required to be performed.'

2. 'The plaintiffs further say that they relied upon, and were induced to enter in such contract by reason of, the misrepresentations of defendant that she was the owner of such house and garage and that same were located on land owned by defendant, whereas in truth and fact said garage encroached upon land owned by an adjoining landowner.'

The petition concluded with a prayer for damages.

A demurrer was filed to the pleading, alleging that it appeared on the face of the petition 'that the action was not brought within the time limited for the commencement of such actions.'

It is argued that a four-year statute of limitations applies to this pleading, because there was pleaded an action in tort; i. e., for misrepresentation which induced plaintiffs to enter into a contract for the purchase of real property.

The court overruled the demurrer on the ground that 'the action is founded upon breach of contract.' The defendant excepted to the ruling.

On a later date the case came on for trial to the court without a jury, and at the conclusion thereof the court entered its judgment, in part as follows:

'(a) That the defendant, honestly but mistakenly, did represent to the plaintiffs that the garage in question did not encroach upon the adjoining land of another.

'(b) That the defendant intended by general warranty deed to convey all of the garage and all of which was within the meaning of the phrase 'the Shafranek property' as used in the contract.

'(c) That the defendant received valuable consideration, whereas the plaintiffs got less than they bargained for.

'(d) That the misrepresentations were as to material and substantial facts:

'(E) That the plaintiffs were induced to enter into the contract by reason of the representations;

'(F) That the plaintiffs had a right to and did rely on the representations;

'(G) That the representations were in fact false.'

The judgment entry concludes by assessing damages in the sum of fifteen hundred dollars, in favor of the plaintiffs and against the defendant.

It is the claim of the appellant that 'the court erred in overruling defendant's demurrer to plaintiff's second amended petition.' She states that 'clearly, the gist of plaintiff's action is 'ex delicto' rather than 'ex contractu.' The cause of action is based upon a misrepresentation of fact inducing a party to enter into a contract, rather than a breach of contract already entered into. Whether we label such tortious conduct by defendant as fraud, deceit, or misrepresentation, is immaterial. It is still governed by the four-year limitation under either Section 2305.09(C) or 2305.09(D) of the Revised Code. The fifteen-year limitation governing contracts in writing has no application in this case.'

Section 2305.09, Revised Code, is titled, 'Four years; certain torts.' It provides, in part:

'An action for any of the following causes shall be brought within four years after the cause thereof accrued:

* * *

* * *

'(C) For relief on the ground of fraud;

'(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, inclusive, 2305.14, and 1307.08 of the Revised Code.' (The latter part of this subdivision has no application to this case.)

Section 2305.06, Revised Code, is titled 'Contract in writing.' It is as follows:

'An action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued.'

It appears on the petition that the action was brought within a period of...