Atkinson v. Scott
| Decision Date | 23 January 1877 |
| Citation | 36 Mich. 18 |
| Court | Michigan Supreme Court |
| Parties | John Atkinson v. Sophia Scott |
Heard January 17, 1877
Error to Superior Court of Detroit.
Judgment reversed, with costs, and a new trial granted.
James T. Keena, Atkinson & Atkinson and H. M. Cheever, for plaintiff in error.
Ward & Palmer, for defendant in error.
This is an action to recover money paid by Atkinson upon a contract afterwards rescinded, as he alleges, by Mrs. Scott.
In February, 1873, Atkinson agreed in writing to purchase from Mrs. Scott a house and lot for eight thousand four hundred and seventy-five dollars, of which four hundred and seventy-five dollars was paid down, and the remainder provided for as follows: five hundred dollars and interest July 31st, 1873, one thousand dollars and interest, May 1st, 1874, and five hundred dollars and interest, July 31st, 1874, all of these being secured by collaterals. For the remainder, he was to assume two mortgages on the premises, held by the Springfield Savings Bank, of six thousand dollars, and procure the release therefrom of certain adjoining premises, by November 22d, 1873, as well as pay taxes and insurance.
On the 13th of April, 1874, Atkinson made a written agreement with Joseph P. Whittemore to sell him the property for eight thousand five hundred dollars, of which five hundred dollars was to be paid down, two thousand dollars with interest on delivery of deed or assignment of contract, payable by a note of George H. Prentis, due June 18th, 1875, secured by mortgage, and endorsed by Whittemore, and the assumption, with interest from date, of the two mortgages of six thousand dollars.
Atkinson paid the note due July 1st, 1873, of five hundred dollars and interest, and paid five hundred and eighty-six dollars interest on the mortgages. Whittemore paid Atkinson the first payment due him of five hundred dollars, and on the 6th day of July, 1874, paid three hundred dollars interest on the mortgages.
On the 3d of August, 1874, Mrs. Scott, at Whittemore's request conveyed the premises to his wife, Mrs. Kate A. Whittemore, and she gave a mortgage back to Mrs. Scott, for one thousand six hundred and forty-eight dollars and seventy-five cents, being the two last installments which were due from Atkinson to Mrs. Scott, and gave as collateral thereto a note of George H. Prentis, for two thousand dollars, and paid the bank one hundred and twenty-eight dollars and sixty cents, for taxes and insurance before advanced by them, and made a further payment on the mortgage of one thousand one hundred and four dollars, and obtained a...
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...is one of assumpsit. It is, in many cases, a substitute for a bill in equity and is governed by equitable principles. Atkinson v. Scott, 36 Mich. 18 (1877). Since the remedy sought by Aetna, repayment, is measured in money and is not a form of equitable relief, the controversy is properly r......
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...vendor, and is entitled to have restored what he had paid upon the contract, subject to such deductions as equity should require. Atkinson v. Scott, 36 Mich. 18. Where vendor upon the purchaser's breach elects to rescind in toto, such election restores the status quo, and entitles each part......
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