Schnitz v. Grand River Ave. Dev. Co.

• Decision Date: 08 April 1935
• Docket Number: No. 90.,90.
• Citation: 271 Mich. 253,259 N.W. 900
• Parties: SCHNITZ v. GRAND RIVER AVENUE DEVELOPMENT CO.
• Court: Michigan Supreme Court

271 Mich. 253

259 N.W. 900

SCHNITZ

v.GRAND RIVER AVENUE DEVELOPMENT CO.

No. 90.

Supreme Court of Michigan.

April 8, 1935.

Bill by Jack L. Schnitz against the Grand River Avenue Development Company. From a decree dismissing the bill, plaintiff appeals.

Affirmed. Appeal from Circuit Court, Wayne County, in Chancery; James E. chenot, judge.

Argued before the Entire Bench.

John Sklar, of Detroit (Samuel Shimans, of Detroit, of counsel), for appellant.

Warren, Hill, Hamblen, Essery & Lewis, of Detroit (William C. Allee and John K. Worley, both of Detroit, of counsel), for appellee.

BUTZEL, Justice.

In 1925, plaintiff, Jack L. Schnitz, an engineer of Jackson, Mich., who had had previous experience in subdivision work, became interested in the purchase of the north one-half of lot 419 of Grindley Park subdivision, sections 33 and 28, town 2 south, range 10 east, township of Dearborn, Wayne county, Mich., according to the plat thereof recorded in the office of the register of deeds for Wayne county, Mich. The subdivision, as platted, contained 919 lots, but defendant Grand River Avenue Development Company owned only a part of the property, including a block of 221 lots approximately in the center of the subdivision. Plaintiff visited the property befofe making his purchase. He found it under development, with improvements being made. Lot 419 fronted on Monroe boulevard, which, as shown on the plat, was a street 80 feet wide, running from the southerly to the northerly limits of the subdivision, a distance of approximately one-half mile. Plaintiff claims it was represented to him that the boulevard was to be extended so that it would join a thoroughfare of similar name which ran into Dearborn, Mich., as one of its principal streets, and that it also would thus lead to the Ford airport. The contract was tendered to plaintiff at Jackson, Mich., by a representative of the company which was acting as sales agent for defendant. Plaintiff claims that he was hurried into signing the contract, without having an opportunity to read it carefully. He, however, received a copy duly signed by defendant and had ample time to read it and promptly make his objections, if there were any. The record does not show that any complaint was made by him until many years later, nor can he claim ignorance or inexperience. The contract, dated October 12, 1925, provided for a purchase price of $1,980, with a down payment of $396, and monthly installments of $19.80, the entire contract price, plus interest, to be paid up within five years. Plaintiff paid his installments regularly until June 10, 1929, but thereafter made only two payments, of $39.60 each, on June 10, 1930, and September 8, 1930. No further payments were made after the latter date, at which time $985.51 was still due on the contract. There is no question but that plaintiff was in default on his payments.

On October 11, 1932, he filed a bill for rescission, claiming fraud, breach of contract, and failure of consideration, and sought to recover all payments made by him. A cross-bill for foreclosure, filed by defendant, was later dismissed, and we therefore need not consider it here. Plaintiff's chief claim of fraud is based upon the alleged representation of the salesman that Monroe boulevard was to be opened throughout the entire subdivision so as to continue through to the city of Dearborn, Mich. As a matter of fact, notwithstanding the showing on the plat, Monroe boulevard has never been opened, except for the two-block strip in front of and in the immediate vicinity of lot 419. At most, however, the alleged fraudulent representation, which was not incorporated in the contract, constitutes a promise as to the intended future conduct of defendant, and, as there is no showing whatsoever that it was made with actual fraudulent intent, nor can such intent be inferred from the facts as stated in the record, it cannot be made the basis for rescission. Kellam v. Frischkorn Real Estate Co., 242 Mich. 572, 219 N. W. 658;Burlingame v. B. E. Taylor Realty Co., 247 Mich. 109, 225 N. W. 562.

Plaintiff claims that shortly after the contract was entered into, defendant caused the vacation of the plat as to a block of lots south of the one purchased by him. The vacation was made in ...