#### Cody, Appellee, *v.*Landis, Appellant.

*226(No. 406

Decided June 30, 1941.)

*Messrs. Kerr, Kerr & Kerr*and *Mr. Carl B. Felger,*for appellee.

*Mr. W. A. Haines*and *Mr. Michael E. Norris,*for appellant.

Guernsey, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Miami county, Ohio.

The action’is one for the specific performance of a written contract for the sale of real estate.

The case is submitted to this court upon the original pleadings filed in the Common Pleas Court, consisting of the petition of the plaintiff, Frank J. Cody, the answer of the defendant, Mary E. Landis, and the reply thereto, and a motion for judgment on the pleadings filed by the defendant, Mary E. Landis, in this court. Subject to the decision of this court on the motion, the case is also submitted on a transcript of the proceedings had on the trial of the action in the Common Pleas Court and a transcript of testimony taken before Renna R. Spitler, notary public in and for Miami county, appointed by the court as commissioner for the purpose of hearing and transcribing further testimony in this ease.

In his petition, the plaintiff, Frank J. Cody, alleges that on the 4th day of June 1938, the defendant was the owner of certain premises particularly described in the petition, situated in the city of Troy, Miami county, Ohio, and that on the above-mentioned date the plaintiff entered into a contract with the defendant for the *227sale of the described premises, a copy of which contract is attached to the petition, made a part thereof, and marked exhibit A.

Plaintiff further alleges that .under the terms of the contract defendant sold to the plaintiff the premises described “for an agreed price and the plaintiff made the down payment provided for in said contract and was to pay the sum of $2,025 on or before July 1, 1938,- and on the payment of said sum plaintiff was to receive a warranty deed from the defendant for said premises.”

Plaintiff further alleges that he was to have possession upon the execution of the contract, for making repairs, and was to have entire possession on the execution of the deed and upon payment of the balance due; that on June 16th he caused a tender to be made on his behalf, of the balance due, under the contract, and had a deed prepared and ready to be signed by the seller; that acting on plaintiff’s behalf, the person representing the party from whom plaintiff was securing the money, made the tender and requested the execution of the deed, which tender was refused by the defendant; and that defendant refused to sign the deed.

Plaintiff further alleges that he has, from the 16th day of June 1938, been ready to perform all the conditions on his part to be performed under the contract and is at present ready, willing and able to perform all of the conditions of the contract and has done everything possible to be done by him to carry out the terms of the contract, and that from the date of the tender, to wit, June 16, 1938, to the present date he has been ready, willing and able to perform his part of the contract and now tenders complete performance of same.

The copy of the contract attached to the petition contains a clause as follows: “The buyer agrees to pay for said property the sum of thirty-two hundred ($3,200) dollars, payable as follows: One thousand one *228hundred seventy-five ($1,175) dollars upon the execution of this agreement, the receipt of which is hereby acknowledged by the seller, and balance of two thousand twenty-five ($2,025) dollars on or before the first day of July, 1938, and upon the payment of the balance due, a warranty deed will be delivered to the buyer by the seller for said premises.”

• In her answer, the defendant admits that she was on the 14th day of June-1938, and is now, the owner of the premises described in the petition and contract attached thereto, that she entered into a written contract with the plaintiff for the sale of these premises, and that by the terms of the contract plaintiff was to pay to the defendant the sum of $2,025‘on or before July 1, 1938. Defendant denies each and every other allegation contained in the petition.

By way of a second and further defense to the petition, defendant alleges that by the terms of the written contract, a copy of which is attached to and made a part of plaintiff’s petition, and by direct reference made a part of her answer the same as if a writtén copy thereof was attached to the answer, the plaintiff, designated as buyer in the contract, agreed to pay the sum of $3,200, payable $1,175 upon the execution of the agreement and the balance of the consideration price of $2,025 on or before July 1, 1938.

Defendant further alleges that when the written contract was executed and delivered to plaintiff, the latter did not pay the consideration price of $1,175 provided by the terms of the contract, and has failed and neglected to pay the sum of $1,175 upon execution, as stipulated in the agreement, and still fails and neglects to pay the same; and that because of plaintiff’s own' neglect and failure to carry out the terms of the written agreement, the transaction was thereby can-celled.

Defendant further alleges that on the 1st day of *229July 1938, she tendered to plaintiff a warranty deed for the premises and demanded payment to her of the sum of $3,200 as provided for in the written agreement, that plaintiff then refused and still refuses to pay the sum of $3,200, and that by reason of such refusal on the part of the plaintiff she is under no obligation to the plaintiff under the terms of the contract.

To this answer, plaintiff filed a reply which, omitting the caption and formal parts, is in the words and figures following, to wit:

“Now comes the plaintiff herein and for reply to the answer filed herein says that the amount shown by the contract was a ‘boosted’ amount in order that the price named in the contract might be of assistance in procuring a loan or resale in case the purchaser, or a person lending money, should ask to see the contract, but that the total amount due the defendant was $2,025, and that amount was the real purchase price and not the $3,200 therein named.

“Plaintiff admits that defendant tendered plaintiff a warranty deed and demanded the sum of $3,200.

“Plaintiff further replying denies each and every other allegation in said answer contained.”

Giving the reply the construction most favorable to the plaintiff, it amounts to an admission that the down payment of $1,125 on the purchase price of the property agreed to be purchased by plaintiff, the receipt of which is acknowledged by the seller in the contract, was not paid, and an averment that although under the terms of the written contract plaintiff agreed to pay the defendant the sum of $3,200 for the real estate, the real consideration was the sum of $2,025, and the sum of $3,200 designated as the purchase price in the contract was a fictitious figure put in the contract for the purpose of deceiving persons who might be interested in purchasing the premises or loaning money thereon, as to the price at which plaintiff had purchased the premises.

*230In an action upon a contract, a recital in such contract of the receipt of all or part of the consideration named therein may be controverted without pleading or proving facts warranting a reformation of the contract, but where the party attempting to enforce such contract bases his right to enforcement on terms varying from the terms of the written contract he must plead and prove that the terms upon which he bases his right were agreed to by the parties to the contract and that the variance between such terms and the terms of the written contract resulted from either fraud or mutual mistake entitling him to a reformation of the contract in the respects mentioned. *B. & O. Bd. Co.*v. *Bing,*89 Ohio St., 92, 105 N. E., 142; *Globe Ins. Co.*v. *Boyle,*21 Ohio St., 119.

In the instant case no facts are pleaded in the reply showing that the variances bet.ween the provisions of the written agreement and those pleaded in the reply resulted from either fraud or mutual mistake, and as such facts are not pleaded, the written contract, under the pleadings, is not subject to reformation and its terms as to the amount of the purchase price to be paid by plaintiff for the premises and the manner of paying the same govern the enforcement of the contract notwithstanding the allegations of the reply as to different terms.

The legal effect of the reply is to admit the failure of the plaintiff to make the down payment prescribed in the written contract and, consequently, to admit noncompliance with the terms of the contract, which bars him from any relief on the cause of action stated in the petition.

Furthermore, under the mentioned allegations of the reply, an integral part of the contract as pleaded in the reply constituted an agreement to misrepresent selling price for the purpose of deceiving persons who might be interested in purchasing or loaning money on *231such, premises. This constituted a conspiracy on the part of both parties to the contract to obtain money by false pretenses, which is contrary to the public policy of this state. The plaintiff as a party to such conspiracy is guilty of inequitable conduct directly involved in the transaction upon which his cause of action is based, precluding him from relief by way of specific performance of such contract in a court of equity. *Booth*v. *Edwards,*322 Ill., 489, 153 N. E., 677.

As this case, upon the appeal on questions of law and fact, stands for trial *de novo*in this court, the court may consider motions or demurrers made to the pleadings before the submission of the evidence. While the provisions of Section 11601, General Code, relating to judgments on pleadings, appear in that part of the General Code of Ohio relating to procedure in the Common Pleas Court, the Court of Appeals, in the exercise of its appellate jurisdiction in the trial of chancery eases, may, on motion for judgment on the pleadings made before it, apply the provisions of such section. Even if such section did not exist, this court, in the exercise of its appellate jurisdiction in tire trial of chancery cases, may, either upon motion of a party, or *sua sponte,*dismiss a petition where consideration of all the pleadings reveals that the petitioner has no cause of action, or does not come into court with clean hands, and a petition may be dismissed on the latter ground irrespective of whether the defendant has invoked the clean hands maxim. 19 American Jurisprudence, 324, 325, 326, Sections 469, 470, 471.

The motion of the defendant for judgment on the pleadings will therefore be granted upon the grounds, first, that the pleadings affirmatively show that the plaintiff has no cause of action against the defendant; and, second, that the pleadings affirmatively show that the agreement sought to be enforced by the plaintiff *232contained as an integral part thereof a conspiracy to commit a fraud, precluding plaintiff from enforcing the same in a court of equity.

While the granting of the motion mentioned renders unnecessary the consideration of the case on its merits, we have nevertheless considered the case on its merits.

Prom a consideration of the evidence we find no facts warranting the reformation of the contract to substitute the terms of the contract as pleaded in the reply, for the terms of the written contract; and we further find that the plaintiff has not made the down payment prescribed in the written contract, and that the fictitious figure named in the contract as the purchase price of the premises was so named in furtherance of a conspiracy to defraud. This being the case, we have reached the conclusion, on a consideration of the merits, that the plaintiff has no cause of action against the defendant and that the agreement sought to be enforced by the plaintiff contained as an integral part thereof a conspiracy to commit a fraud, precluding plaintiff from enforcing same in a court of equity.

A decree will therefore be entered dismissing plaintiff’s petition at his costs.

*Petition dismissed.*

Klinger, P. J., concurs.

Klinger, P. J., and Guernsey, J., of the Third Appellate District, sitting by designation as a Court of Appeals of the Second Appellate District.