318

Gibson v. Zumstein, Treas., et al.

structure. Section 2805, Rev. Stat., (79 O. L., 71), authorized the board to take action as to valuation of real property, regardless of any act on the part of either Auditor or assessor (Humphreys v. Safe Deposit Co., 29 Ohio St., 608, 610; Gazlay v. Humphreys, 8 Ohio Dec. Re., 102; Mitchell v. Treas., 25 Ohio St., 157, 161; Wagoner v. Loomis, 37 Ohio St., 571, 574 and 5). In the absence of proof of fraud, corrupt discrimination, arbitrary action without evidence or like ground for interference cf a court of equity, a decision of the board is final and conclusive (Wagoner v. Loomis, supra; Fratz v. Mueller, 35 Ohio St., 397, 404-5; 103 U. S. S. C., 735). The sole question in this case is, then: Did the board decide upon this new srtucture? Its minutes of August 17, 1885, show that after finishing its transactions upon "all new improvements, it took up for consideration "complaints on real estate," thus manifesting that it made a distinction between "improvements" and "real estate." Under the latter head, the deduction of $18,000 was ordered. At this date, the structure had not yet been completed. It was not then susceptible of valuation, nor in condition to be a factor in the appraisment of the "real estate." This circumstance argues that the new structure was not passed upon by the Board on August 17, 1885. Were the minutes less explicit, the provisions of the tax laws would raise a presumption against this structure's being before the Board in its 1885 session. Section 2846 requires the holder of land to list it for taxation on or before the third Monday of May, after it becomes subject to taxation, and section 2730 places new structures within this requirement. Sections 2805 and 2807, limit the board's authority for equalization of assessments of new structures to such as are returned for the current year by the assessors; which must consequently be those returned between the second Monday of April and the third Monday of May (Rev. Stat. secs. 2753. 2755, 2736, 2846, 2730). The action of the board must therefore limit and direct itself to this date. The act of May 19, 1886, 83 Ohio Laws, 232 (subsequent to these transactions) seems to favor this construction. It specially provides for deductions to be made by the auditor on account of the destruction of new structures, among other things by flood, tornado and otherwise, between the second Monday of April and the first day of October, a provision unnecessary were the powers of the board as to valuation not limited to the time spoken of. Such being the lawful duties of the board, the presumption that it acted in conformity therewith requires the finding that the deduction of $18,000 did not refer to the structures which were scarcely begun in the spring of 1885. Hence its proceedings of August 17, 1885, did not preclude the auditor from his action.

The completion of the structure in the fall of 1885 made it duty of the assessor for 1886, to make a return of it. He omitted to do so. It follows that the course pursued and intended, to be pursued by the auditor, and that intended by the treasurer were lawful.

The petition is therefore dismissed.

Chas. W. Baker, for plaintiff.

R. B. Smith, Wm. A. Davidson and Fred Hertenstein, for defendant.

Hamilton Common Pleas.

319

319

TAXATION.

[Hamilton Common Pleas, 1889.]

HERMAN LACKMAN V. JOHN Zumstein, Treas.

The treasurer will not be enjoined from collecting taxes on an addition placed on the value of real estate by a city board of equalization, on the ground of its being disproportionately in excess of other property where the board had investigated this question on notice to plaintiff and there is no evidence of fraud. Nor will the fact that the board's aggregate of additions and deductions at such meeting do not balance, and that the result of their whole session was to add largely to the duplicate, render this particular addition illegal under R. S., sec. 2804.

SHRODER, J.

The plaintiff prays an injunction against the defendant's collecting taxes upon an addition of $2,500, placed upon the 1888 duplicate for taxation by order of the City Board of Equalization, upon his property southwest corner Stone & Sixth streets. The authority of the board to make this addition and the conclusiveness of its decision were considered and upheld in the case of Wm. Gibson v. Zumstein et al. Wagoner v. Loomis, supra; Fratz v. Mueller, 404-5; 103 U. S. S. C., 735; Gazlay v. Humphreys. 8 Ohio Dec. Re., 102.

It is objected that the valuation of this property by the board is disproportionately in excess of that of neighboring property. This objection cannot be sustained, because there is no evidence of fraudulent discrimination against plaintiff and it is proved that the board came to its decision after due investigation upon notice to plaintiff and for the stated reason of the inequality of value. It is also objected that the aggregate additions and reductions of the particular meeting of the board on which this addition was made, did not balance; also that the whole aggregate to the tax duplicate for the whole session exceeded by $23,940 the duplicate of 1887 exclusive of new structures. The Rev. Stat., sec. 2804 makes neither objections valid. The restriction referred to in the objections apply to the total reductions only, and these for the whole session, at the time when the work of the board is in condition to go into effect upon the tax duplicate. The plaintiff therefore presents no equity which entitled him to the relief sought; and the petition is therefore dismissed. Von Seggern, Phares & DeWald, for plaintiff. Davidson & Hertenstein, for defendant.

[Superior Court of Cincinnati, General Term, 1889.]

JACOB ELSAS v. ADOLPH MEYER & Co.

1. Where a party to a contract notified the other party in advance of the stipulated time for performance of his intention not to comply with the contract, the other may treat such notice as a breach and as a waiver of conditions by him to be performed, and sue for damages; but if instead of treating the contract as at an end, he still insists on compliance, he can not rely on the notice of an intended breach as a waiver of any conditions by him to be performed and in order to recover for an actual breach of the contract, he must show full compliance on his part of all conditions precedent in the contract.

2. In construing a contract for a lease where the future lessor agrees to make certain improvements in the premises to be leased before occupancy by the lessee is to begin, Held:

First, that the promise of the future lessor, is a single one, i. e., to put the premises in a certain state of repair, and that substantial compliance with such promise is a condition precedent to liability of the other party on the contract to take the lease.

Second, that technical, unimportant and inadvertent omissions and defects in making the promised improvements will not defeat the right of the future lessor to recover for a breach, but the other party may recoup for the same in damages.

3. Where the word "satisfactory" is used to describe the required condition of certain improvements under the contract in connection with other words descriptive of the degree of excellence of such improvements, the rule is that if such improvements come up to the described standard, the party to be satisfied must be satisfied. and can not base dissatisfaction on a mere whim.

This was an action for the breach of a contract for a lease. The trial before jury resulted in a verdct of some eleven hundred dollars in favor of the plaintiff. The motion for a new trial by the defendant was reserved to this court. The defendant at the same time made a motion for judgment notwithstanding the verdict, which was also reserved, and the case is now here for decision of the two motions.

The contract signed by the parties, which was the basis of the suit, was as follows:

"This agreement witnesseth, Whereas, Jacob Elsas, party of the first part, has agreed with Messrs. Adolph Meyer & Co., a firm doing business in the city of Cincinnati, Ohio, party of the second part, to make certain improvements in the buildings, known as Nos. 136 & 138 Race street, in the city of Cincinnati, now owned by the party of the first part. It is agreed by and between the parties aforesaid as follows: Adolph Meyer & Co. agree to lease from the said party of the first part, the premises as above set forth, in part, namely: 1st, 2nd, 3rd, 4th, 5th, 6th floors and basement of No 138 Race street, and 2nd, 3rd, 4th, 5th and 6th floors of No. 136 Race street. The consideration of said lease to be $4.500 per annum, for a period of five years from July 1, 1887; said amount to be paid in equal monthly installments, and the said Adolph Meyer & Co. to have a further option of retaining the said premises for a further period of five years from the expiration of the first period of five years, upon an annual rental of $5,000.00, to be paid in equal monthly installments. It is understood that in case the said party of the second part elect to continue the lease as above set forth, they shall give to said Elsas, a written notice of such desire, six months prior to the expiration of the first period of five years. In consideration of the agreement above set forth, the said party of the first part agrees to make certain improvements and alterations in the said premises, as exhibited in the plans and drawings of the same, now in the possession of S. A. Hannaford, architect, and which are made a part of this agreement. In addition to the said plans and specifications, it is understood by and between the parties aforesaid that the said buildings shall be ready for occupancy on a day in June prior to the tenth of June, 1887, and that the said party of the second part, are to have free use of the same for fifteen days subsequent, at the expiration of which fifteen days, they are to pay rent for said premises at the rate of $4,500.00 per annum, until July 1, 1887, at which time, the lease herein provided for, shall commence. * * * In accordance with terms above set forth, the said Elsas is to have in position in said buildings, the followng improvements not now existing

Superior Court of Cincinnati.

346

therein: The cellar to be finished and heated with satisfactory heating. apparatus, and the two lower floors of No. 138 and the 2nd floor of No. 136 to be likewise heated. Openings are to be made in the division wall between the buildings of size and position satisfactory to the said Adolph Meyer & Co. Water-closet and wash rooms to be placed one on the first floor and one in the basement of No. 138; a suitable modern elevator in the building, and an area elevator and freight chute under the side walk of No. 138; speaking tubes with modern improvements, "cut-off" to connect the office with every other floor of the building. An office of satisfactory character to be built in the first floor of No. 138. Gas fixtures of satisfactory kind to be supplied by said Elsas. Adolph Meyer & Co. agree to "pack"the elevator when necessary, and said Elsas to keep it otherwise in repair. The buildings to be painted and whitened throughout by said Elsas, and the floors all through the building to be put by him in satisfactory good condition and repair, and the entire building when complete, to be modern and first-class in every respect."

The answer of the defendants was that plaintiff had not fulfilled his contract either in having the building ready for occupancy on the tenth of June, or in making the improvements stipulated in the contract, and that for this reason, they refused to take the lease. The reply pleaded a waiver of such conditions in the contract as were not performed. It was admitted by plaintiff that the building was not ready by the tenth of June, but he testified that by agreement the time of occupancy was postponed to begin July 1st. On the twenty-second of June, defendants through their attorneys sent a letter to plaintiff, declining to take the premises on the ground that Elsas had not complied with his contract. To this plaintiff's attorney replied that his client would not accept this declaration as final and asked an interview in which to agree upon the terms of the lease, and stating that in the event of a continuing refusal his client would rent the building and hold them for damages for the difference. On the thirtieth of June, plaintiff's attorney made a tender of a lease which was refused. Upon this evidence which, plaintiff claimed, showed a waiver of any right on defendant's part to require compliance by plaintiff with the contract thereafter, the court stated to the jury as follows in the general charge. "If you find that, by agreement between the parties, the time for the completion of the contract was postponed until the first of July, then the defendants, before refusing to complete the contract on their part, must have waited until the first of July; and if, before the first of July, they announced that they would not complete the contract, then the plaintiff is relieved from further compliance with the contract beyond that time. But he cannot recover unless he shows that he was able, ready and willing to comply with all these conditions by the first of July.

TAFT, J.

The defendants claim that the charge as to the effect of the letter of June twenty-second, as a waiver, was error, and we think it was. The authorities are without conflict to the effect that where a party to a contract announces in advance of the time of his compliance that he will not fulfil his contract, the other party may elect to consider such announcement an anticipatory breach and sue for damages, or he may treat the contract as still in force. If he treat the contract as still in force, he must fulfil all the conditions on his part to be performed before having a right of action for the breach, Johnson v. Willing, L. R., 16 Q. B. D.,

407; Smoot's case, 15 Wallace, 36; Dringley v. Ohler, 117 U. S., 490; Cleveland Rolling Mill v. Rose, 121 U. S., 255; Leake Contracts, 872 and cases there cited.

In this case it is quite clear that the letter which plaintiffs attorney sent to defendants, was not an election to treat the announcement by defendants that they would not take the lease, as an anticipatory breach, but rather was an election to consider the contract as still in force. This election is further shown by the tender of the lease on the thirtieth of June. The plaintiff therefore can not now avail himself of the letter from defendant's attorney of June 22d, as a waiver by defendant of plaintiff's compliance with the conditions, and the charge of the court that it might be so considered was error for which a new trial will be granted.

Coming now to consider the defendant's motion for judgment, a question is made on the construction of the contract. Defendants claim that all the improvements to be made by the plaintiff were conditions precedent to defendant's taking the lease. Plaintiff contends that only the addition of two stories to the building according to the architect's specifications was a condition precedent, and that this condition was admittedly fulfilled; that the other improvements were in the nature of independent covenants, a breach of which entitled defendants to damages, but a failure to comply with which would not release defendants from their contract. The court below held that they were all conditions precedent, and we agree with that holding. The contract is inartificially drawn, but considering the surrounding circumstances, we think its meaning cannot be mistaken. The opening clauses show that the agreement to take the lease was the consideration for certain improvements. To hold that these improvements are limited to the alterations provided for in the specifications of the architect because the other improvements are spoken of in a subsequent clause is, we think, in view of the whole character of the contract which was not drawn by a lawyer, too narrow a construction. The evident intent of the parties was that Elsas should put his premises in a certain condition for leasing, and that the defendants should then take a lease. The condition in which Elsas was to put his premises was described with considerable detail and the specifications were part of them described as being in possession of the architect, and part of them were set forth in the contract. The promise on his part was a single one, namely, to put his premises in a certain condition, just as an agreement to build a house according to certain specifications is a single promise. This is an answer to the effort of counsel for plaintiff to apply to this contract, Sergeant Williams', 3d canon of construction in determining whether a covenant is a condition precedent or an independent covenant. Notes 1 Wms. Saunders, 548. That canon is as follows: "When a covenant or promise goes only to a part of the consideration, and a breach thereof may be paid in damages, it is an independent covenant or promise. And an action may be maintained for the breach of it by the defendant without averring performance or readiness in the declaration." In the case at bar, the elevator, the office, the water closet, the whitening and the other details were not covenanted for as independent promises which aggregated together were the consideration. The promise was single to have a house ready furnished in the way specified with all these features in it. The 3d canon quoted does not apply but rather the following which is the 2d. "When a day is appointed for the payment of money or the doing of any other act (in this case the taking of the lease and premises) and the day is to happen after