#### Arnoff et al. *v.*Chase et al.

*Covenants*— *Building restriction*— *"One house only” clause*— *Four-story apartment prohibited, when*— Construction *of contracts■*— ■Extrinsic *aids to interpretation.*

(No. 16367

Decided June 17, 1920.)

Error to the Court of Appeals of Cuyahoga county.

This action was tried in the court of appeals on appeal from the court of common pleas. The plaintiffs below, defendants in error here, are the owners of lot 188 in what is known as “C. L. Newell’s Lake Front Allotment,” in Lakewood, Ohio. Upon this lot plaintiffs had built their home, in reliance upon a covenant contained in the deed to them from Newell, who had laid out the subdivision, and in reliance upon an identical restriction in all other deeds to lots in the subdivision.

At the time of commencement of this suit plaintiffs in error, Sadie Arnoff and The Clair*332Doan Building & Construction Company, under a land contract entered into between Sadie Arnoff and the Newells, had agreed to purchase two lots, Nos. 189 and 190, immediately adjoining the property of defendants in error, which contract contained the building restriction referred to, providing in part as follows:

“Said party of the second part, her heirs and assigns hereby agree not to erect or cause to be erected any building or structure or part thereof, on said lots within 40 feet of the north line of said lot, * * * no house to be erected under a cost of Three Thousand ($3000.00) Dollars * * * and no shingle roof to be used; one house only on each lot; all lots are sold for residence purposes only * *

The amended petition sought to have defendants Sadie Arnoff and The Clair-Doan Building & Construction Company restrained from carrying out their declared purpose of erecting a four-story apartment house designed to contain thirty-six apartments, substantially covering lots 189 and 190. The amended petition alleged:

“Said general scheme of improvement [of the Lake Front Allotment] and all said deeds further provided that one house only shall be erected on each lot, meaning thereby that only one single private residence should be erected on each lot, and all parties interested in said allotment have construed said restrictive covenants to mean that only one single private residence or dwelling house should be erected upon each sublot therein, and all purchasers * * * have complied with said *333conditions and covenants and have expended large sums of money in improving their respective lots with fine private residences.”

The court of appeals found “that the allegations of said amended petition are true,” and further found “that the language used in said restrictive covenants, taken in the light of the surrounding circumstances at the time said general or uniform plan was adopted,, and the conduct of the parties themselves and their successors in title, and the construction placed upon said covenants by said parties and their successors in title, make manifest an intention to limit the use of said premises to one single residence or house on each lot,” and that “Sadie Arnoff and The Clair-Doan Building & Construction Company had due notice of said general plan of restrictions and of the observance thereof.”

The proposed construction was therefore declared a violation of the covenant, and the present plaintiffs in error were perpetually enjoined from constructing the flat or apartment building in question.

*Mr. David Perris*and *Mr. C. A. Niman,*for plaintiffs in error.

*Messrs. White, Johnson, Cannon & Spieth*and *Mr. H. A. Beckett,*for defendants in error.

By the Court.

The finding of facts by the court of appeals is called in question, but a reading of the record discloses that said finding is not un*334supported by evidence. By that finding this court is therefore bound.

Consequently a question of law is presented, whether the building restrictions, when construed in the light of the facts as found, will justify the decree under review.

In *Arnoff*v. *Williams et al.,*94 Ohio St., 145, this court was called upon to construe the following phrase used in a deed, “No more than one residence building shall be located upon a lot or tract of land of fifty feet in frontage,” and it was held that such restriction did not prevent the erection of a four-suite apartment house. It is contended that this holding, together with a like interpretation in *Hunt*v. *Held,*90 Ohio St., 280, of the phrase “for residence purposes only,” is conclusive of the issue in the case at bar.

In each of the cases referred to there was involved simply the bald construction of the phrases quoted, with no extrinsic aids to construction other than such as appeared in the instruments of which the phrases were a part. However, even if we could confine our view within the narrow limits of the words themselves, the instant case could not be disposed of upon the authority of the cases cited, since the word “house,” though in some connections used as synonymous with “building,” is unquestionably used, and commonly, both in literature and in common speech, as the equivalent of that sort of a home technically known as a single family residence. The latter interpretation gains in force when it is observed that the term “building” or “structure” is used when it is desired to control the *335*place*of construction, and the phrase “for residence purposes” when the general character of the occupancy is in question. The further and distinct limitation of each lot owner to “one house only” was evidently inserted for another purpose. It would be hypertechnical to interpret that purpose as satisfied by the construction of as many abodes as can be arranged vertically or horizontally under a common roof.

The truth is that attempts to give precise scope and meaning to common words of homely speech are bound to fail, unless resort is had to the surroundings both of parties and subject-matter, the writer and the matter written about. In the instant case the proper tribunal of fact has found that the words of restriction, employed in the written instruments under which both parties claim, have acquired, by common understanding long observed, a special significance in the particular vicinity, and that the plaintiffs in error had due notice thereof.

In a court of equity the result must be the same as if technically apt words had been used to restrict the building operations of the parties within the limits which local but known and observed usage had given the words actually employed.

For the reasons assigned the judgment of the court of appeals must be affirmed.

*Judgment affirmed.*

Matthias, Johnson, Robinson and Merrell, JJ-, concur.