Summary
In Whittier v. Electric Refrigeration Corporation, 246 Mich. 247, 248, 224 N.W. 447, the court in considering a somewhat similar statute held that the purchaser of shares of stock might tender equivalent stock, when he had sold the stock that he had purchased before he discovered his right to have a return of his money.
Summary of this case from Huglin v. H.M. Byllesby Co.Opinion
Docket No. 68, Calendar No. 33,930.
Submitted January 24, 1929.
Decided March 29, 1929.
Error to superior court of Grand Rapids; Verdier (Leonard D.), J. Submitted January 24, 1929. (Docket No. 68, Calendar No. 33,930.) Decided March 29, 1929.
Assumpsit by Harry L. Whittier against the Electric Refrigeration Corporation to recover purchase price paid for corporate stock on rescission of sale. Judgment for plaintiff. Defendant brings error. Affirmed.
MacKay, Wiley, Streeter, Smith Tucker, for appellant.
Knappen, Uhl Bryant, for appellee.
This case, except in two particulars, is ruled by Harvey v. Electric Refrigeration Corporation, ante, 235.
Plaintiff herein sold his stock holdings before he discovered right to have return of his money. Before suit he made tender of equivalent stock to the amount sold him, together with dividends received and interest thereon. The tender was refused, and defendant contends that it was no tender, because not the same stock sold by it to plaintiff, and plaintiff, having sold his stock holdings, cannot now recover what he paid defendant for the same. The statute, section 20, Act No. 220, Public Acts 1923, adopts, and this court, in Joslin v. Noret, 224 Mich. 240, applied, the common-law rule that, upon rescission, there must be return made so as to place defendant in statu quo. Defendant has plaintiff's money. Plaintiff tendered back the equivalent of all he had received, and it was no defense to claim that the shares tendered were not the identical shares sold him. American Alkali Co. v. Salom, 131 Fed. 46 (certiorari denied, 196 U.S. 641); Schultz v. O'Rourke, 18 Mont. 418 ( 45 P. 634). Plaintiff's right to relief accrued to and remained in him subject only to restoration of the status quo. He tendered restoration, and is entitled to have return of what he paid defendant, less dividends received, with interest thereon.
There was no valid defense, and the judgment is affirmed, with costs to plaintiff.
NORTH, C.J., and FEAD, FELLOWS, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.