Abbate v. Shelden Land Co., 81.

• Decision Date: 23 December 1942
• Docket Number: No. 81.,81.
• Citation: 7 N.W.2d 97,303 Mich. 657
• Parties: ABBATE et ux. v. SHELDEN LAND CO.
• Court: Michigan Supreme Court

303 Mich. 657

7 N.W.2d 97

ABBATE et ux.

v.SHELDEN LAND CO.

No. 81.

Supreme Court of Michigan.

Dec. 23, 1942.

Suit by Samuel Abbate and his wife against Sheldon Land Company for cancellation and rescission of purchase of certain lots and other relief. From a decree for plaintiffs, defendant appeals.

Reversed. Appeal from Circuit Court, Wayne County, in Chancery; Clyde I. Webster, Judge.

Before the Entire Bench.

James G. Henry, of Detroit, for defendant and appellant.

John P. O'Hara, of Detroit (John P. O'Hara, Jr., of Detroit, of counsel), for appellee.

SHARPE, Justice.

Plaintiff filed a bill of complaint in the circuit court of Wayne county for the cancellation and rescission of the purchase of four lots with refund of the purchase money and interest from the date of sale with a lien on the premises until repayment.

On August 14, 1926, plaintiffs entered into a written agreement with Sheldon Land Company, defendant, for the purchase of lots 280, 281, 282, and 283 Rosedale Gardens Subdivision No. 2 in Livonia township, Wayne county, Michigan. The agreed price was $1,200 for each lot. The purchase price was paid by the transfer by plaintiffs of certain real estate they owned in Detroit. On August 19, 1926, plaintiffs received a warranty deed of the lots in question. The land contracts contained restrictions covering the lots in Rosedale Gardens Subdivision No. 2. These restrictions were not written into plaintiffs' deed, but reference was made to a so-called ‘master deed’ in which the identical restrictions as contained in the land contract were set worth. The lots purchased by plaintiffs were designated business lots; and there were restrictions as to the cost and construction of buildings to be erected thereon. The lots purchased by plaintiffs were each 20 feet wide and 100 feet deep. They faced on Merriman road, also known as McKinney road and Imperial highway.

In November, 1936, defendant company wrote plaintiffs requesting them to join in an arrangement to change the restrictions along Merriman road including the lots purchased by plaintiffs from business to residential lots. Plaintiffs declined to join in such a movement and notified defendant company that they would insist upon the original plan being maintained. Unknown to plaintiffs, defendant company in February or March, 1937, filed a petition in the circuit court of Wayne county for the vacation of a portion of the plat of Rosedale Gardens Subdivision No. 2. In March of the same year, the court vacated that part of the plat of Rosedale Gardens Subdivision No. 2 which constituted the business property along Merriman road including the lots sold to plaintiffs. The residential area of this subdivision was not affected. By other proceedings defendant company secured the vacation of the plats of business property for a distance of approximately one mile along Merriman road. Plaintiffs did not learn about the vacation of plat No. 2 affecting the business property until about two years after the same was vacated. After the plat was vacated, defendant company built three income type bungalows on Merriman road.

On June 19, 1939, plaintiffs gave defendant company notice of their intention to rescind the purchase of the lots and tendered a deed of the lots. Defendant company refused to accept the deed and the instant suit was commenced. The trial court did not write an opinion or make a finding of facts except as may be found in the decree entered in favor of plaintiffs wherein it was ordered that the purchase of the lots be cancelled and rescinded; and that defendant company pay to plaintiffs the sum of $4,800 with interest at five per cent. from the date of purchase. Defendant company appeals.

It has been stipulated that all provisions required by law for the vacation of plats have been followed in vacating Rosedale Gardens Subdivision No. 2 and there is no showing of any irregularity in any of the other vacation proceedings. It is urged by defendant company that the restrictions on Merriman road where the four lots are situated were abandoned and waived by grantee and grantor.

We are unable to find any conduct upon the part of plaintiffs that would indicate a waiver of any of the restrictions. The record shows quite the contrary. The lots were purchased as an investment. In January, 1937, plaintiffs notified defendant company by letter that they would not consent to nor join with defendant company in making any change in the restrictions.

The paramount question involved in this case may be stated as follows: Are plaintiffs entitled to rescission? It is urged by plaintiffs that the nonperformance of the represented plan for development of the mile square of subdivisions, the vacation of the plat as to plaintiffs' lots with the abrogation of restrictions constituted failure of consideration; and that the failure of consideration entitled plaintiffs to rescind.

Plaintiffs rely upon Labadie v. Boehle, 288 Mich. 223, 284 N.W. 707, 710, in support of their contention that parol evidence was properly introduced to show that plaintiffs purchased the four business lots upon defendant's statements and representations that the mile square was to be developed and that all lots were to be residential lots except certain lots facing on the outside roads bounding the mile square section.

In the Labadie case, supra, Mrs. Labadie purchased land known as Subdivision No. 1 which was between two other subdivisions. Lots had been sold on contracts restricted to high grade residences in Subdivision No. 1 and the subdivision to the north of it. After the sale to Mrs. Labadie, the two plats on the north and south of Mrs. Labadie's property were vacated and all restrictions cancelled. Mrs. Labadie had purchased the property on condition that the subdivisions to the north and south of the property she purchased would be continued as high grade subdivisions. The court found that: ‘Under the circumstances a case is presented therefore where Mr. Boehle agreed as a part of the consideration of the transaction that so far as he was concerned he would continue to protect that entire 160-acre tract as a high-grade subdivision and that it would continue to be a uniform real estate development, uniform in restrictions and layout with the Subdivision No. 1 which she was purchasing.’

Because of the above finding of fact, we there said:

‘It is the law of the State undoubtedly that where parties have reduced their agreements to writing that all preliminary verbal agreements are merged therein and the writing is the sole evidence of the contract between the parties. It also is the law of the State that writings between the parties are not the sole evidence of the agreement between the parties when those writings are entered into in pursuance and execution of the agreement and evidence only a part of the agreement.

‘Under the...