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Mock v. Duke

20 Mich. App. 453 (Mich. Ct. App. 1969)
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Mock v. Duke

6 Citing cases

  1. Head v. Benjamin Rich Realty Co.

    55 Mich. App. 348 (Mich. Ct. App. 1974)   Cited 13 times
    Stating that the defense of laches is inapplicable to a claim at law, but determining that—in any event—there was no prejudice occasioned by the delay

    See Barke v Grand Mobile Homes Sales, 6 Mich. App. 386, 390-391; 149 N.W.2d 236 (1967), and cases cited therein. See also Mock v Duke, 20 Mich. App. 453, 455; 174 N.W.2d 161 (1969). In view of the circumstances present in this case, and in light of the principles discussed in the above authorities, we find that the instant suit was properly tried before a jury.

  2. Jim-Bob, Inc v. Mehling

    178 Mich. App. 71 (Mich. Ct. App. 1989)   Cited 105 times
    In Jim-Bob, the Michigan Court of Appeals adopted a balancing test for assessing whether a defendant's acts were intentional and improper.

    While defendants emphasize the basic repugnance of allowing plaintiff to "blow hot and cold" at the same time, the inconsistency only involves legal theories of recovery. Under rescission plaintiff would be required to restore all benefits received and would be entitled to the purchase price of the restaurant and consequential damages, Mock v Duke, 20 Mich. App. 453; 174 N.W.2d 161 (1969), whereas his actual damages, which are the same regardless of which defendant committed the fraud upon him, consist of plaintiff's loss of the bargain measured by the difference between the actual value of the property and its value if it had been as represented. Hubert v Joslin, 285 Mich. 337, 346; 280 N.W. 780 (1938); Barker v Fordville Land Co, 264 Mich. 95, 96-97; 249 N.W. 491 (1933).

  3. Walraven v. Martin

    123 Mich. App. 342 (Mich. Ct. App. 1983)   Cited 9 times
    In Walvren v. Martin, 333 N.W.2d 569 (Mich. Ct. App. 1983), the Michigan Court of Appeals was faced with a plaintiff pursuing inconsistent remedies against multiple defendants.

    While defendants emphasize the basic repugnance of allowing plaintiff to "blow hot and cold" at the same time, the inconsistency only involves legal theories of recovery. Under rescission plaintiff would be required to restore all benefits received and would be entitled to the purchase price of the restaurant and consequential damages, Mock v Duke, 20 Mich. App. 453; 174 N.W.2d 161 (1969), whereas his actual damages, which are the same regardless of which defendant committed the fraud upon him, consist of plaintiff's loss of the bargain measured by the difference between the actual value of the property and its value if it had been as represented. Hubert v Joslin, 285 Mich. 337, 346; 280 N.W. 780 (1938); Barker v Fordville Land Co, 264 Mich. 95, 96-97; 249 N.W. 491 (1933).

  4. Head Seemann, Inc. v. Gregg

    104 Wis. 2d 156 (Wis. Ct. App. 1981)   Cited 23 times
    Noting that "the purpose of rescission . . . is to put the defrauded party back in as good a position as he occupied before entering the contract"

    Several other states allow the recovery of restitutionary damages along with rescission when fraud or misrepresentations is the cause of the claim. Lobdell v. Miller, 114 Cal.App.2d 328, 250 P.2d 357 (1952); Bernofsky v. Schwartz, 370 So.2d 590 (La.App. 1979); Mock v. Duke, 20 Mich. App. 453, 174 N.W.2d 161 (1969); Sawyer v. Pierce, 580 S.W.2d 117 (Tex.Civ.App. 1979); N.Y. Civ Prac. Law 3002(e) (McKinney). We believe that restitutionary damages conform with the purpose of rescission, which is to put the defrauded party back in as good a position as he occupied before entering the contract. Consequently, we hold that such damages may be awarded along with rescission.

  5. Dehring v. North Mich Exploration

    104 Mich. App. 300 (Mich. Ct. App. 1981)   Cited 11 times

    As to plaintiffs' damages, the law in Michigan is that, if the plaintiff "proceeds under a theory of rescission, he may also recover damages for losses sustained as the direct result of the misrepresentation". Mock v Duke, 20 Mich. App. 453, 455; 174 N.W.2d 161 (1969). Thus, to the extent that plaintiffs have established any consequential damages arising from the fraud, such may be awarded.

  6. Robinson v. Katz

    94 N.M. 314 (N.M. Ct. App. 1980)   Cited 36 times
    Concluding that it was unreasonable for the firm representing Respondent at the time to object and thus Respondent had no opportunity to object below

    Several other states allow the recovery of restitutionary damages along with rescission when fraud or misrepresentations is the cause of the claim. Lobdell v. Miller, 114 Cal.App.2d 328, 250 P.2d 357 (1952); Bernofsky v. Schwartz, 370 So.2d 590 (La.App. 1979); Mock v. Duke, 20 Mich. App. 453, 174 N.W.2d 161 (1969); Sawyer v. Pierce, 580 S.W.2d 117 (Tex.Civ.App. 1979); N.Y.Civ.Prac.Law 3002(e) (McKinney). We believe that restitutionary damages conform with the purpose of rescission, which is to put the defrauded party back in as good a position as he occupied before entering the contract. Consequently, we hold that such damages may be awarded along with rescission.