Kirker v. Larson

• Decision Date: 02 December 1930
• Docket Number: June Term.,No. 122,122
• Citation: 233 N.W. 177,252 Mich. 136
• Parties: KIRKER et al. v. LARSON.
• Court: Michigan Supreme Court

252 Mich. 136

233 N.W. 177

KIRKER et al.

v.LARSON.

No. 122, June Term.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Wayne County; Lester S. Moll, Judge.

Suit by John G. Kirker and another against Clarence E. Larson. Judgment for plaintiffs, and defendant brings error.

Judgment affirmed on condition plaintiffs file a remittitur, otherwise reversed with a new trial.

Argued before the Entire Bench.Monaghan, Crowley, Reilley & Kellogg, of Detroit (Joseph B. Beckenstein, of Detroit, of counsel), for appellant.

Lynch & Hinks, of Detroit, for appellees.

WIEST, C. J.

The parties exchanged equities in real estate. This suit was brought to recover damages for false and fraudulent representation by defendant of the security his equity in a farm afforded a vendors' land contract plaintiffs were induced to take. Plaintiffs had judgment upon findings of fact and conclusions of law.

The history of the land contract is of importance. In June, 1921, Gustav and Henrietta Tessmann, owners of a 120-acre farm in Macomb county, entered into a land contract to convey the farm to Hiram and Eliza Brant, upon payment of $22,500, and acknowledged receipt of $9,000. April 19, 1922, the Brants assigned their interest, as vendees, to Harriet B. Cappeller. June 11, 1922, Harriet B. Cappeller, having but the mentioned interest in the farm, agreed by land contract to convey the farm to John M. Bross for the sum of $42,000, and acknowledged receipt of $11,000. Later $1,000 additional was credited. The $11,000 was mainly fiction. August 11, 1922, Bross assigned his contract interest to Stephen F. Saxton. October 30, 1922, Saxton assigned to George S. Geis. August 8, 1922, Harriet B. Cappeller assigned her interest, as vendee under the Tessmann contract, to Frank Burt. The Tessmanns consented to the assignment, but without release of the assignor from liabilty. Burt accepted and, in consideration of the Tessmanns' consent, agreed with them to assume and perform the contract. The same day Harriet B. Cappeller assigned over to Mr. Burt her interest as vendor in the Bross contract. Mr. Burt then held the vendee interest under the Tessman contract, upon which there was due $13,200, and the Bross subcontract then held by Geis, calling for an unpaid balance of $30,000. Deducting $13,200, the amount unpaid on the Tessman contract, from the $30,000, unpaid on the Bross contract, made Burt's interest worth $16,800 on paper. Burt held for defendant and transferred to plaintiffs by direction of defendant. Defendant represented to plaintiffs that the interests so transferred to them by Burt for him constituted good security for $30,000, because the farm was worth $42,000.

The circuit judge found the farm worth $24,000 and awarded plaintiff $10,500, that being the...