Weaver v. Aitcheson

• Decision Date: 14 April 1887
• Court: Michigan Supreme Court
• Parties: WEAVER v. AITCHESON.

32 N.W. 436

65 Mich. 285

WEAVER v. AITCHESON.

Supreme Court of Michigan

April 14, 1887

Error to Tuscola.

Black Gray & Corcoran, for plaintiff.

T.W Atwood, for defendant and appellant.

SHERWOOD, J.

This is an action of assumpsit, brought by plaintiff against the defendant to recover back money paid on a contract for the sale of land. The defendant sold by contract to the plaintiff 40 acres of land, lying in the township of Nevesta, in the county of Tuscola, for the sum of $400, to be paid as follows: $50 on the execution of the contract; $100 on the first day of February, 1885; $100 February 1, 1886; $100 February 1, 1887; and $50 February 1, 1888. The first two payments were made according to the conditions of the contract. On the twenty-eighth of January, 1885, without the knowledge or consent of the plaintiff, defendant conveyed the land to Alfred B. Campbell. On the eighteenth day of February, 1886, the plaintiff treating the contract as broken and rescinded by the defendant, brought this suit against him to recover the money paid, and interest thereon. The plaintiff never had possession of the land.

It was conceded by the defendant's counsel upon the trial that the defendant was guilty of a breach of the contract in making his deed of the lands to Campbell, and it was further conceded by the parties that $183.50 was the amount of principal and interest paid by plaintiff upon the contract. It was also conceded by defendant's counsel upon the trial that, if the verbal arrangement claimed by the defendant, as made with plaintiff's agent, by which the defendant was to procure a reconveyance of the property from Campbell to him, and place the same on record, and then the plaintiff was to accept a deed from the defendant, and pay him the balance of the unpaid purchase money, was not a defense, then the defendant had none. The court instructed the jury to find for the plaintiff, and assess his damages at the sum of $183.50, and the verdict and judgment rendered thereon were entered accordingly.

Defendant brings error, and claims that, when the plaintiff was informed that defendant had conveyed the land to Campbell, he had a choice of two remedies: (1) To sue for damages for the breach of the contract; or (2) treat the contract as rescinded, and sue for the money paid upon it,--and that he has brought suit to recover the money paid without having made the election, and without having treated the contract as rescinded, and that bringing suit cannot be regarded as an election,--that it comes too late. It is also...