O'Neill v. German
| Citation | 44 O.O. 11,154 Ohio St. 565,97 N.E.2d 8 |
| Decision Date | 21 February 1951 |
| Docket Number | No. 32168,32168 |
| Parties | , 25 A.L.R.2d 945, 44 O.O. 11 O'NEILL v. GERMAN et al. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court.
1. Where after extended negotiations a land contract is drawn by the vendor's agent, who uses therefor a printed form and types therein a recital of the purchase price and a provision that such purchase price is to be paid at a specified amount per month, but does not mention interest therein, the mere appearance of the word 'interest' in subsequent printed paragraphs of the agreement does not create an obligation of the purchaser to pay interest.
2. The typed portion of a land contract will prevail over the printed portion thereof, if the two are inconsistent.
3. The fact that the purchaser immediately takes possession of the premises sold under a land contract does not in and of itself create liability for interest from date of the instrument on the portion of the purchase price stipulated to be paid in future monthly installments.
4. When a land contract drawn by the vendor's agent fails to provide for payment of interest Section 8305, General Code, which stipulates a rate of six per cent interest under certain circumstances, does not create an obligation to pay interest from date of the instrument on deferred installments of the purchase price named in such contract.
5. A land contract, which contains no provision for interest, is not analogous to an instrument which provides for usurious interest and it derives no benefit from Section 8306, General Code.
6. Whether a land contract provides for payment of interest is a matter of construction, which is to be effected by following well established rules for construing contracts.
The appellee was plaintiff in an action in the Common Pleas Court of Trumbull County to collect $530.31 allegedly due on a land contract. The defendants, who were the purchasers tendered the sum of $10 as the balance due on the purchase price, and prayed for specific performance. The amount thus put in issue represents the interest on the sum named in the contract as the purchase price. The trial court held for the defendants and ordered specific performance upon payment of $10.
The Court of Appeals, with one member of the court dissenting, reversed the judgment of the trial court and rendered judgment in accordance with the prayer of the petition.
The case was admitted to this court upon the allowance of a motion to certify.
On April 17, 1939, O'Neill sold a city lot in Niles, Ohio, to the defendants and the sale was evidenced by written agreement. The sale was effected by one Harvey C. Kistler who was an experienced dealer in real estate and who represented O'Neill, the vendor, in the transaction. Kistler drew up the agreement using a printed form entitled 'Land Contract--With Dower Clause--No. 39A,' printed by a recognized publisher of legal forms. On the first page of the agreement appears the usual recitation as to the parties and a description of the premises being sold. In the upper fourth of the second page appears the following (typing indicated by italics):
The entire remainder of the second page is blank and a red line is drawn through it, which line starts from the period following the typed word 'pay.' The last sentence above quoted is typed over said red line, which indicates that it was typed somewhat later than the other provisions.
On the third page of the agreement appear five printed paragraphs of terms and provisions with spaces left for insertion of appropriate pronouns. Then follow the witness clause and signatures. The first and fourth of the above-mentioned printed paragraphs are relied upon by the plaintiff. They read as follows:
'It is expressly agreed by and between the parties to this agreement, that if any one of said installments, or the interest accrued thereon, shall not be paid when due, then all of said installments remaining unpaid shall at once become due and payable, at the option of the first party.
'* * *
'Now if the party of the second part, his heirs, executors, administrators or assigns, shall well and truly pay the full purchase money aforesaid, with interest, taxes, assessments and insurance, at the time and in the manner above stipulated, then, on the full receipt thereof, and not otherwise the said party of the first part, his heirs, executors, administrators or assigns, shall well and truly make and deliver, or cause to be made and delivered, to said party of the second part, on surrender of his duplicate contract, a good and sufficient warranty deed * * *.'
At the trial Kistler and O'Neill testified that, before the agreement was drawn, the parties discussed providing for interest at six to seven per cent. The defendants testified that interest was not discussed. The record is clear that the parties negotiated at least one week before the agreement was executed.
The defendants made regular monthly payments of $15 under this agreement, said payments being made at the office of Kistler. The payments were entered on defendants' original executed copy of the agreement, which copy is an exhibit in this case and is attached to the bill of exceptions.
The last page of the printed form of agreement is ruled into columns with appropriate headings for posting payments. The columns are headed, respectively, 'Date of Payment,' 'Principal,' 'Interest,' 'Interest Paid To' and 'Received By (Signature).' Each payment of $15 was entered in the column headed 'Principal.' Nothing was at any time entered in the column headed 'Interest' or in the column headed 'Interest Paid To.' The payments were not totaled at any time and no part thereof was allocated to interest. The defendants were not supplied with a book in which to enter payments made under the contract and their only record of such payments is that appearing on the back of the agreement as above indicated. The evidence satisfactorily establishes that the plaintiff made no claim that the defendants were liable for interest until late in 1947, some eight years after the agreement had been executed. The question was then raised when the defendants tendered the plaintiff $10 as the balance remaining due of the $1,600 referred to in the agreement as the purchase price. O'Neill refused the tender and demanded interest from the date of the agreement which was computed to be $520.31. The method of computing the interest is not in dispute.
Walter F. MacQueen and James R. MacQueen, Niles, for appellee.
Ralph R. Miller and Ralph R. Thombs, Youngstown, for appellants.
The plaintiff claims the right to collect interest computed at 6 per cent per annum on current unpaid balances and argues four propositio...
To continue reading
Request your trial
-
Minnesota Min. & Mfg. Co. v. Blume
...the fundamental and cardinal rule is that the intention of the parties must be ascertained and given effect. O'Neill v. German, et al., 154 Ohio St. 565, 570, 97 N.E.2d 8 (1951); State ex rel. Maher v. Baker, 88 Ohio St. 165, 172, 102 N.E. 732 (1913). In determining the intent of the partie......
-
Jones v. Multi-Color Corp., MULTI-COLOR
...itself must be strictly construed against the drafter, in this case one or all of the defendants. See O'Neill v. German (1951), 154 Ohio St. 565, 571, 44 O.O. 11, 14, 97 N.E.2d 8, 11; Farmers' Natl. Bank v. Delaware Ins. Co. (1911), 83 Ohio St. 309, 94 N.E. 834, paragraph seven of the sylla......
-
Caron Jones and Laura Jones v. Multi-Color Corp., and Wesley Trimble, Administrator, Ohio Bureau of Workers' Compensation, and Industrial Commission of Ohio, 95-LW-4936
... ... construed against the drafter, in this case one or all of the ... defendants. See O'Neill v. German (1951), 154 ... Ohio St. 565, 571, 97 N.E.2d 8, 11; Farmers' ... Nat'l Bank v. Delaware Ins. Co. (1911), 83 Ohio St ... 309, 94 ... ...
-
P.I. & I. Motor Express, Inc. v. Rli Ins. Co.
...is to be interpreted most strongly against the party who used it or the party who prepared the contract." O'Neill v. German , 154 Ohio St. 565, 571, 97 N.E.2d 8, 11 (1951).14 The undersigned notes, that Judge Limbert previously concluded that the policy "narrowly define[s ‘employee’] to inc......