Barker v. Fordville Land Co.

• Decision Date: 29 June 1933
• Docket Number: No. 61.,61.
• Citation: 249 N.W. 491,264 Mich. 95
• Parties: BARKER v. FORDVILLE LAND CO. et al.
• Court: Michigan Supreme Court

264 Mich. 95

249 N.W. 491

BARKER

v.FORDVILLE LAND CO. et al.

No. 61.

Supreme Court of Michigan.

June 29, 1933.

Appeals from Circuit Court, Wayne County; Kelly S. Searl, Judge.

Action by James A. Barker against the Fordville Land Company and others. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment affirmed.

Argued before the Entire Bench.

John G. Cross, of Detroit, for appellant.

Milton W. Kleckner and Howard D. House, both of Detroit, for appellees.

POTTER, Justice.

Plaintiff, vendee in a land contract which he claims was induced by the fraud of vendor's agents, defaulted in payments thereon. Vendor, in pursuance of the contract, gave notice of such default, election to retain the payments made on the contract, and took and now holds possession of the premises. Plaintiff sued defendants to recover the money paid by him as a part of the purchase price of the property; the declaration counting on the fraud and containing the common counts in assumpsit. From a verdict for defendants directed by the trial court, plaintiff appeals.

When plaintiff discovered he had been defrauded (1) he could sue in equity for rescission of the contract; (2) tender back the property to the vendor, and sue ot recover the purchase money paid; or (3) keep the property and sue the persons by whom he had been defrauded, for damages. Warren v. Cole, 15 Mich. 265;Lenox v. Fuller, 39 Mich. 268;Stockham v. Cheney, 62 Mich. 10, 28 N. W. 692;Wegner v. Herkimer, 167 Mich. 587, 133 N. W. 623;Merlau v. Kalamazoo Circuit Judge, 180 Mich. 393, 147 N. W. 503;Bryan v. Houseman-Spitzley Corp., 213 Mich. 236, 182 N. W. 111.

Plaintiff had a right, if he proceeded properly, to repudiate the purchase, surrender his interest in the property to the vendors, and sue for the purchase price. Such suit would be based upon the theory the contract was void, the money paid by him without consideration. It would disregard the contract, treat it as of no binding force, and seek to recover the money paid as paid without consideration. It would lie only against the vendors who received plaintiff's money. Plaintiff might elect to abide by the contract, keep the property purchased, though the contract was fraudulently induced, and maintain a suit to recover damages for the fraud and deceit practiced on him. Such suit would not be based upon vendor's profit by fraud, upon the theory that defendants had received something for which they should account, but would be a suit based upon plaintiff's right to recover his loss by reason of fraud inducing such loss. All persons who perpetrated or assisted in...