Wells v. Twenty-First Street Realty Co.

• Decision Date: 07 April 1926
• Docket Number: No. 4380.,4380.
• Citation: 12 F.2d 237
• Parties: WELLS v. TWENTY-FIRST STREET REALTY CO.
• Court: U.S. Court of Appeals — Sixth Circuit

12 F.2d 237 (1926)

WELLS v. TWENTY-FIRST STREET REALTY CO.

No. 4380.

Circuit Court of Appeals, Sixth Circuit.

April 7, 1926.

Thos F. Veach, of Cleveland, Ohio (Chas. I. Russo, of Cleveland, Ohio, on the brief), for appellant.

A. J. Schanfarber, of Cleveland, Ohio (Ulmer & Berne and J. Albert Lowell, all of Cleveland, Ohio, on the brief), for appellee.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

The Supreme Court held in Chicago Auditorium Assn. v. Central Trust Co., Trustee, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, that a claim for damages for breach of an executory contract for baggage and livery privileges is provable in bankruptcy under the provisions of section 63a4 of the Bankruptcy Act; that damages may be liquidated under section 63b of that act; and that bankruptcy is the equivalent of disablement and repudiation. It is contended upon the part of the appellant that a different rule applies to a contract relating to realty, and that this was recognized by the Supreme Court in the Chicago Auditorium Case above cited. This question was not presented in that case, nevertheless the Supreme Court, in discussing the cases cited involving questions arising out of the relation of landlord and tenant, declared that those cases are distinguishable because of the "diversity between duties which touch the realty, and the mere personalty," citing Co. Litt. 292b, § 513.

The Supreme Court also recognized this distinction in Filene's Sons Co. v. Weed et al., 245 U. S. 597, 601, 38 S. Ct. 211, 62 L. Ed. 497, and in the companion case of Gardiner v. William S. Butler & Co., 245 U. S. 603, 605, 38 S. Ct. 214, 62 L. Ed. 505. Both of these cases, however, arose under the laws of Massachusetts, which state "has followed the English tradition." In states where the English common law is in force there is, no doubt, a basis for distinction, notwithstanding the analogies between contracts relating to personalty and contracts relating to realty. It is said by the Supreme Court in Gardiner v. William S. Butler & Co., supra: "But the law as to leases is not a matter of logic in vacuo; it is a matter of history that has not forgotten Lord Coke." It follows that if the common law in relation to leases obtains in Ohio, then because of the "diversity between duties which touch the realty, and the mere personalty" as stated in the Auditorium Case, the rule announced in that case can have no application to a claim for damages for the anticipatory breach of a lease contract.

On January 2, 1806 (4 Ohio Laws, p. 38), the General Assembly of the state of Ohio repealed a prior statute adopting the common law of England and all statutes of the British Parliament in aid thereof. While it is true that the repeal of this statute did not wholly exclude the English common law, yet since the repealing statute of January 2, 1806, it has been held to have no force in Ohio derived from legislative action, but that the courts of that state have adopted its principles as rules of decision so far only as "they are adapted to our circumstances, state of society, form of government, and genius of our institutions." Lessee of Lindsley v. Coats, 1 Ohio, 243; Cleveland, C. & C. Railroad Co. v. Keary, 3 Ohio St. 202; Sergeant v. Steinberger, 2 Ohio, 305, 15 Am. Dec. 553; Kerwhaker v. C., C. & C. R. Co., 3 Ohio St. 172, 178, 62 Am. Dec. 246; Carpenter v. Denoon, 29 Ohio St. 379, 398; Worthington v. Hewes & McCann, 19 Ohio St. 66, 75.

How far the courts of Ohio have adopted the common law of England in reference to leases and leasehold estates is, perhaps, not free from doubt. It is certain, however, that Ohio has rejected many doctrines of the common law relating thereto, and has substituted therefor rules more in harmony with modern ideas. Carpenter v. Denoon, supra; Gladwell v. Holcomb, 60 Ohio St. 427, 434, 54 N. E. 473, 71 Am. St. Rep. 724; Wilder v. McDonald, 63 Ohio St. 383, 396, 59 N. E. 106; Ohio v. C. & P. R. Co., 94 Ohio St. 61, 69, 70, 113 N. E. 677, L. R. A. 1917A, 1007; Worthington v. Hewes & McCann, supra. In Taylor v. De Bus et al., 31 Ohio St. 468, Worthington v. Hewes & McCann is criticized, but not in terms overruled. It is also said in...