Farmer v. Best
| Decision Date | 29 March 1929 |
| Docket Number | No. 52.,52. |
| Citation | 246 Mich. 434,224 N.W. 399 |
| Parties | FARMER v. BEST. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Oakland County; Frank L. Doty, Judge.
Action by Carrie Farmer against Andrew Charles Best. Judgment for plaintiff, and defendant brings error. Affirmed.
Argued before the Entire Bench.Clement E. Miner, of Holly, and George A. Cram, of Pontiac, for appellant.
Sylvester Pheney, of Detroit, for appellee.
This is an action in assumpsit to recover money expended by plaintiff in repairing and improving a dwelling house, owned, at the time of the repairs, by the defendant Andrew Charles Best and Myrtle Best, husband and wife, by the entireties.
Before suit, Mrs. Best died, and Mr. Best became owner of the premises by right of survivorship. Mrs. Best was plaintiff's daughter. Plaintiff claims that, in 1920, she and her husband, then both aged, entered into a verbal agreement with Mr. and Mrs. Best, under which they were to move into and occupy the Best dwelling house jointly with the Bests, and repair and improve the premises, and have a life lease thereof; that they moved into the Best home, and plaintiff expended $2,229.03 of her own money in making repairs and improvements, and then requested execution of the life lease; that Mrs. Best was willing to execute such a lease, but Mr. Best, on March 11, 1921, made absolute refusal, and the next day plaintiff and her husband moved out. March 9, 1927, or six years, lacking two days, after moving out, plaintiff brought this suit to recover the money she had so expended upon the property. Defendant pleaded the general issue, and gave notice of the statute of limitations. Upon trial, by jury, plaintiff had verdict and judgment. Defendant's motions for a directed verdict, and for judgment notwithstanding the verdict, were denied. Review here is by writ of error.
At the trial defendant asserted want of necessary parties plaintiff and defendant, in that, if the contract was made, Mr. Farmer was a party to the agreement, and Mrs. Best was also a party, and, therefore, Mr. Farmer should have been joined as a plaintiff and the estate of Mrs. Best made a party defendant.
The declaration in one count set up the alleged verbal agreement, thereby showing the occasion under which the money was expended, and in another the money counts in assumpsit.
In the brief of counsel for plaintiff it is stated:
‘This action is brought under the equitable count for money had and received, to recover back the purchase price paid by the plaintiff as the consideration for a life lease, under a parol executory contract fully performed on her part, but rescinded by the defendant by his illegal ouster of plaintiff, after he had put her in possession, and after he had refused to deliver the life lease as agreed.
‘In other words: In consequence of his unlawful ouster, there was a failure of consideration for the purchase money, which she had paid, and the defendant became liable to pay it back to her under the equitable count for money had and received.’
The statement is somewhat contradictory. Defendant did not rescind the contract; he refused to perform, while keeping the benefits, and such was a breach on his part and not rescission by him; neither could he rescind and keep the benefits. If is a misnomer to say that defendant rescinded the contract. The refusal of defendant afforded ground for rescission by plaintiff. Plaintiff had right of rescission when she moved out and restored full possession of the premises to defendant. If plaintiff has the right to recover her money, it is based upon rescission or cancellation of the contract because of defendant's refusal to perform. When plaintiff was fully satisfied that defendant would not execute the life lease, she moved out, and thereby restored to defendant all she had received, and then was in a position to hold defendant, if he was individually liable, to pay back the money expended in his behalf.
Refusal by defendant to execute the lease, vacation of the premises by plaintiff, and rescission...
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