Cleve. Trinidad Paving Co. v. New Amsterdam Casualty Co. , 1 Ohio Law. Abs. 359 ( 1922 )

VICKERY, P. J.

Epitomized Opinion

/ Contracts were entered into by the Pace Brothers ¡to pave a great many streets in Lakewood and Cleveland Heights. The Casualty Company gave bonds (to the cities to insure the faithful performance of 'the contracts. As the Pace Brothers defaulted in pheir contracts, the Casualty Co. took them over jknd entered into a contract with the Cleveland Trinidad Paving Co. whereby this company was to do ’¡the work. As our government was then at war it [was difficult for the Trinidad Co. to get asphalt in /sufficient quantities to prevent delay. The Pace .Bros, then organized the American Paving Co. and 1 upon the insurance that they could get asphalt the .'city council of East Cleveland canceled its contracts 'and entered into an agreement with this company to do the work at cost plus 15% profit. The Trinidad Paving Co. brought an action against the , Casualty Co. to recover the balance due them on . their contract based upon the propostion that the ' former was prevented from performing its con- ' tract through no fault of its own. ■ The Casualty Co. filed an answer and cross-petition setting up three causes of action. The first cause of action set up that the contract was canceled.through the unnecessary delay in the prosecution of the work; the second, to recover amounts of money paid to the plaintiff up on the ground that inasmuch as plaintiff had breached its contract, it could not recover anything; and the third was for $40,000 for the use of tools and equipment of the Pace Bros. A reply was then filed and upon trial the jury rendered a verdict for plaintiff for $60,000, its full cause of action, and for the defendant on the second and third causes of action arid to the extent of $55,000. The plaintiff prosecuted error. The Court of Appeals held:

1. To allow the Casuálty Co. to recover on its second cause of action for the Paving Co.. wilfully violating the contract and to allow the Paving Co. to recover on its contract is manifestly inconsistent, and the jury erred in so doing.

2. The conduct of one party to a contract which prevents the other from performing his part is an excuse for non-performance, consequently the Trinidad Co. was excused from performing by the interference of the Casualty Co.

Judgment reversed.