Klaustermeyer v. Cleveland Trust Co.

Citations

• 89 Ohio St. (N.S.) 142

Syllabus

<p>Equity aids enforcement of. contract, when — Presumption of performance — By one party and failure by the other — Latter cannot defend against redress by equity, when — Failure to segregate securities — Equity presumes performance — And gives equitable lien on securities, when — Assignee for creditors — Takes assigned property charged with liens, etc.</p> <p>1. In a transaction founded on contract, express or implied, there being no adequate remedy at law for its breach, equity will presume the parties to have done what under the contract and in good conscience they should have done.</p> <p>2. When one party to such contract has fully performed his part of the contract for the benefit of the other party, the second party will not be permitted to defend against the first party’s right of (redress in equity by a defense based on the second party’s own default.</p> <p>3. After such first party’s full performance of the contract, it became the second party’s duty to select, segregate and deliver to the first party as a pledge, pursuant to such contract, certain securities then in its possession; and if such second party fails so to do, for the purpose of doing justice and furnishing an adequate remedy to the first party, equity will presume the second party to have done what he ought to have done, and thereby give to the first party an equitable lien or encumbrance upon the securities wrongfully left commingled by the said second party’s said default, no rights of third parties having intervened.</p> <p>4. The assignee for the b.enefit of the creditors takes the property assigned charged with all the liens, encumbrances and liabilities against it while owned and possessed by the assignor.</p>