Opinion
Docket No. 133, Calendar No. 34,003.
Submitted April 10, 1929.
Decided June 3, 1929.
Appeal from Wayne; Smith (Guy E.), J., presiding. Submitted April 10, 1929. (Docket No. 133, Calendar No. 34,003.) Decided June 3, 1929.
Bill by Charlotte Lemmon against Margaret M. Kenas, Edward Kunkle, and William C. Chase for rescission of a contract for exchange of property on ground of fraud. From a decree for plaintiff, defendant Kunkle appeals. Reversed, and remanded for transfer to law side of court.
McIntyre Robinson, for plaintiff.
Arlo A. Emery, for defendant Kunkle.
Plaintiff traded her summer cottage on one of Oakland county's lakes for an equity in a rooming house on Avery avenue in Detroit. She filed a bill against defendants for rescission on the ground of fraud, of which there was ample evidence. The trial court refused rescission, but rendered a joint and several decree for $10,000 against all of the defendants, and decreed the cancellation of a boot-money note of $450 and a real estate commission note to defendants Kunkle and Chase of $500. Defendant Kunkle appeals.
After the transaction sought to be rescinded, plaintiff defaulted in the payment of the instalments due on the contract of purchase of the Avery avenue property and her equity therein was forfeited. Having permitted forfeiture of the equity in the Avery avenue property conveyed to her in consideration of her deed to defendants of the Oakland county property, and her $450 note, plaintiff cannot restore what she received from defendants, and therefore is not in a position to rescind. Merrill v. Wilson, 66 Mich. 232; Galvin v. O'Brien, 96 Mich. 483; Vernon v. Antona, 222 Mich. 83; May v. Otto, 236 Mich. 540; Papciak v. Morawski, 243 Mich. 157.
Rescission will be denied. Plaintiff's damages are recoverable at law. The decree will be reversed, with costs, and the cause remanded, with directions to transfer the same to the law side of the court for further proceedings.
NORTH, C.J., and FEAD, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred.