Sanford v. Breidenbach

111 Ohio App. 474, 173 N.E.2d 702 (1960)

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Nature of the Case

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Facts

Sanford, seller (P) entered into a contract to sell land and a dwelling house to Breidenbach, buyer (D). Transfer of possession was to occur simultaneously with transfer of title, but D received a set of keys to the house before this time. D used the keys several times before he received title, to have a new heating system installed, and to show the house to friends. Before transfer of title or possession occurred, the house was completely destroyed by fire. D instructed the bank which was to loan him the purchase money for the house not to file the deed for record. At the time of the fire, both P and D maintained insurance on the house. P filed suit against D and his insurance company. D counterclaimed against P's insurance company. The lower court found that, although P was not entitled to specific performance, he could recover from both insurance companies. The court apportioned the total loss between the two companies.