Will v. Zynda
| Decision Date | 24 February 1938 |
| Docket Number | No. 24.,24. |
| Citation | 278 N.W. 66,283 Mich. 260 |
| Parties | WILL v. ZYNDA et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by James E. Wall against Anna Zynda, individually and as executrix and heir at law of John Zynda, Sr., deceased, and others for rescission of two land contracts and repayment of the purchase price. From a decree of dismissal, plaintiff appeals.
Argued before the Entire Bench.
Stanley E. Beattie, of Detroit, for appellant.
Alton H. Noe, of Mount Clemens, and Butler & Dougherty, of Detroit, for appellees.
Plaintiff filed a bill to obtain rescission of two land contracts and repayment of the purchase price. By these contracts plaintiff had agreed to purchase from John Zynda, Sr., trustee, certain lots in a Macomb county subdivision. Defendants, claiming plaintiff's suit was barred by statutory limitations, moved to dismiss the bill of complaint. This motion was granted, and plaintiff has appealed.
The land contracts were entered into April 12, 1926. The total purchase price was $3,450. Approximately one-half was paid prior to December 28, 1927, on which date John Zynda, Sr., died. He left an estate in excess of $350,000. The individual defendants are the legatees, each of whom received upwards of $19,000 from the estate. Defendants Anna Zynda and Joseph Zynda were appointed executors and plaintiff paid to these executors the balance of the contract price. The final payment was made October 9, 1929. Plaintiff resided in Massachusetts. After payment in full of the contracts, from time to time he made inquiry and demand by letter and other means of the executors for performance of the vendor's obligations under the land contracts, and he was advised that performance could not be tendered for the reason, among others, that the Zynda estate was in process of administration and that title could not be made until some future date, but that ultimately the contract obligations of the vendor would be performed in full.
By the terms of these contracts, upon payment in full, the vendor was to convey by warranty deed a marketable title and provide vendee with an abstract for each lot. The vendor also agreed ‘to gravel streets and to lay cement sidewalks.’ In April, 1936, an abstract of title was tendered to plaintiff's counsel, but it disclosed that the lots were encumbered. On or about September 15, 1936, plaintiff's counsel was notified that the encumbrance had been removed and that defendants would soon be able to deed the property. About this time plaintiff ascertained that the streets had not been graveled and the cement walks had not been laid. He informed defendants that he would not accept conveyance of the lots until the agreed improvements were made. Defendants Joseph and John Zynda requested further delay until the return of the widow, Anna Zynda, from Germany. An adjustment not having been accomplished, plaintiff started suit March 10, 1937. Defendants have never conveyed title nor tendered conveyance thereof.
The reason assigned by defendants in support of their motion to dismiss are that the plaintiff's cause of action is barred by the six-year statute of limitations, Comp.Laws 1929, § 13976, and by plaintiff's failure to file a claim against the estate of John Zynda, Sr., in accordance with statutory requirements. The trial judge sustained defendants' motion to dismiss on the ground that plaintiff's cause of action was barred by the six-year statute of limitations, and also on the further grounds that plaintiff did not present his claim against the Zynda estate within two years after the granting of letters testamentary, Comp.Laws 1929, § 13981, and that he did not file a contingent claim as provided by statute, Comp.Laws 1929, § 15708.
If the trial court was correct in holding that the six-year statute of limitations barred plaintiff's suit, his holding is decisive of this appeal. However, appellant asserts that the six-year limitation is not applicable because this suit is one ‘founded’ upon covenant, and therefore comes within the statutory provision which in part reads: ‘Actions founded upon covenants in deeds * * * may be brought at any time within ten [10] years from the time * * * when the cause of action accrued on such * * * covenant.’ Comp.Laws 1929, § 13976.
We cannot agree with appellant that his suit is one which comes within the abovequoted statutory limitation. His bill is one for rescission of the two contracts. Neither fraud nor mistake is alleged. Instead vendor's failure to fulfill the terms of the contracts is alleged as the ground for rescission. Such failure was known at all times to plaintiff, or at least would have been known to him had he exercised anything like reasonable diligence in ascertaining the facts. A bill for rescission of a contract, even though under seal, is not founded upon covenant in such contract, i. e., it is not a bill asking affirmative relief based upon a covenant. Instead, the rescission here sought is relief of directly the opposite character. The prayer in plaintiff's bill for rescission is that the entire contract be abrogated and moneys paid by him under the...
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Amerisure Mut. Ins. Co. v. Transatlantic Reinsurance Co.
...Under Michigan law, a party seeking to rescind a contract must not "unduly delay [ ] the exercise of that right." Wall v. Zynda , 283 Mich. 260, 265, 278 N.W. 66 (1938). And for that reason, a "party who seeks to rescind must act with reasonable promptness after discovering the facts. What ......
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Esurance Prop. & Cas. Ins. Co. v. Mich. Assigned Claims Plan
...while the idea of rescission involves the additional and distinguishing element of a restoration of the status quo. [ Wall v. Zynda , 283 Mich. 260, 264, 278 N.W. 66 (1938) (quotation marks and citation omitted; emphasis added).]The inquiry does not ask what Roshaun's options were on the da......
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Bazzi v. Sentinel Ins. Co.
...restores the parties to the relative positions that they would have occupied if the contract had never been made. Wall v. Zynda , 283 Mich. 260, 264-265, 278 N.W. 66 (1938).10 Because a claim to rescind a transaction is equitable in nature, it "is not strictly a matter of right" but is gran......
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Davis v. Forest River, Inc., 270478.
...that rescission is definitionally unavailable here. We note that the quotation from Lash traces its lineage back to Wall v. Zynda, 283 Mich. 260, 264, 278 N.W. 66 (1938), a case that predates Spence by two decades. More importantly, Wall was not a consumer-goods case at all; rather, it was ......