Kreibich v. Martz

• Decision Date: 06 February 1899
• Court: Michigan Supreme Court
• Parties: KREIBICH v. MARTZ.

78 N.W. 124

119 Mich. 343

KREIBICH v. MARTZ.

Supreme Court of Michigan

February 6, 1899

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Kajetan Kreibich against George H. Martz to recover back payments made on a contract to buy land. Judgment for defendant, and plaintiff brings error. Affirmed.

James Swan, for appellant.

John G Hawley, for appellee.

HOOKER J.

On June 23, 1891, Martz executed and delivered to the plaintiff a written contract for the sale of some lots in the city of Detroit, receiving $100 down upon the sale. Kreibich afterwards paid some interest and taxes, as required by the terms of the contract, though upon September 29, 1897, he was more than a year in default in the payment of $1,700 principal, and the city taxes for 1896. Upon that day Martz and wife executed and delivered to William W. Hannan and his wife a warranty deed of the premises. This was done in the course of a division of a large tract of property, owned by the plaintiff, Hannan, and Schwartz, who platted the lots the title being held by the plaintiff for a time under an arrangement between them. It was so held at the time the contract was made, and, when the deed to Hannan was made, it was the understanding that he took the same subject to the rights of the plaintiff. The plaintiff was informed that Hannan had these lots, and said he did not want to deal with Hannan, and that he thought it was a put-up job, so Schwartz would not want to foreclose the contract. Subsequently, in an interview with Hannan, he was asked to pay, and said he did not know as he could pay it all, and Hannan offered to take part, and let the rest stand. He then asked for an abstract which Hannan afterwards procured and delivered to him. He took the abstract, and some time after, acting under the advice of counsel, notified Schwartz that he considered the contract rescinded, tendered him the contract, and demanded repayment of the amount paid upon the contract. It was conceded by counsel that the case involved only a question of law, and the court instructed the jury to return a verdict for the defendant, which they did. The plaintiff has appealed.

The plaintiff's right to recover rests upon the proposition that, by executing and delivering a warranty deed to Hannan, the defendant gave the plaintiff a right to treat the contract as rescinded, under the decisions in the cases of Atkinson v. Scott, 36...