The enterprise. [volume] (Wellington, Ohio) 188?-1899, 1897-09-08

says she apparently was anxious to get
her money out Of this contract.
The proof shows time to time Della
was in Wellington. She saw the
structure going up on her land.
Without going through the details Of
all this testimony, l am thoroughly of
the opinion that she acquiesced in this
contract, she understood what it was,
and she knew what was being done
there, her only anxiety was to get her
money.
It is said that because this money
which was to be paid on the contract the
1st Of August 1896, was not paid then,
this contract was to be forfeited, and all
this property go back to these girls OF to
their assigns. And large number of
authorities have been cited to me from
other states, showing that all the rights
these lien holders could get in this prop
erty, were the rights Of the Warwick
Electric Co., which was to pay this
money when it was due, or else the con-
tract was forfeited.
Now am Of the opinion that we have
an abundance Of authority in Ohio to
settle all Of these questions as to forfeit
ure.
In the case Of Brock ct al, Hidy ct al,
23 Ohio ST., 3O6, forfeiture was claimed
In deciding the case Judge BrinkerhOff
says: Ordinarily, time is not regarded
in equity as being Of the essence of a
contract. and is so regarded only when
it is expressly made so bv the terms of
the contract, or the parties have so treat
ed it, or is necessarily so from the nat
ure of the contract"
''No circumstance appears in the pres
ent case to take it out of the general
rule. 1t seems to as that there was a
clear equity on the expiration Of the sew
en- years credit, in favor Of Solomon Carr
or his vendees. By the lapse of time,
and the improvements he made, the
value of the land had been increased
many fold. A RECESSION of the contract
would not place the parties in statu quo,
and equity fOrbids it."
Now, this perhaps would be enough
to cite in this case, but inasmuch as
this question has been very thoroughly
discussed and large number of auth
critics cited upon the question of for
feiture, call attention to another case
in the A Ohio St., 1861. l call it more
especially because it affirms the case in
the 18th Ohio st, 1906.
The action of the company in the case
was in effect rerutition Of its promise
to pay the amount stipulated in the
policy.
Spear. j. speaking for the court, says:
Notice was essential to forfeiture.
The company gave none, and by its
course Of action waived the forfeiture
which might have arisen from the non
payment Of pemium due June 4th, 1880,
and is now stopped from setting 1t up"
In the case at bar there was never any
demand for this money from The War
wick Electric Mfg Co.; there was never
any offer made to forfeit the contract;
the parties rested upon the contract
without any forfeiture whatever, OF
without any attempt to forfeit.
Now, in this same line as to forfeiture
there is case in the SO Ohio St., 558,
showing the decisions in Ohio upon this
question Of forfeiture.
This is the case of Webster against
Dwelling House Insurance Company,
where it was sought to forfeit a
fire insurance policy, and what ]
read in this case is from page $685., A
primal rule is, that fOrfeitures are not
favored either in equity or at law, indeed
it is declared as a universal rule that
courts Of equity will not lend their aid to
enforce a forfeiture. Following as a
cOrollary from this, provisions for for
FIXTURES are to receive, when the intent
is doubtful, strict construction against
those for whose benefit they are intro
duced."
What would be the result in this case
after forfeiture of this contract? Why,
these defendants in this case, and
speak especially of the lien holders, have
put their money, their property and
their labor into this plant.
Here was piece of land worth 81, 30(
and the parties have put upon this prop
erty $25, A forfeiture OF this con
tract would be to do an injustice instead
of court of equity doing justice to al
parties in the case. ~
These Mullen girls were entitled t
have their money. True they have beer
delayed, but the law gives them interes
on it.
Now, am of the opinion that all they
were entitled to was their money, the!
not having sought any forfeiture of thi
contract.
1t is conceded that all the right tn,
Horrs got in this property was what thC
Mullins had If that be true, they hay,
right to 1900 and interest on it, tina
is what think they got. l think tina
is all the interest they have in this prop
nrtu