Mezak v. Fox

On March 25, 1929, plaintiffs sold and conveyed to defendants certain pieces of real estate or their equities therein and certain personal property in exchange for other real estate and personal property conveyed and sold by defendants to plaintiffs.

The property so transferred to plaintiffs was, as described by appellants, the water power grist and flour mill and business located at the hamlet of Howardsville, in the county of St. Joseph," together with all grains, furniture, tools, etc., in the mill.

Plaintiffs commenced operating the mill on March 29, 1929, or perhaps a little later, and filed this bill for rescission on the ground of fraud on May 21, 1929. Plaintiffs had decree. Defendants have appealed.

The allegations of fraud relate chiefly to representations of income of the business, and to state, condition, repair, and utility of the property. There is much testimony pro and con on the issue of fraud. To set it forth will profit no one. We think, as did the trial court, fraud clearly established.

Plaintiffs, in their bill for rescission, made full tender. No other tender was necessary in this suit in which rescission by the court is prayed. Witte v. Hobolth, 224 Mich. 286.

Defendants argue that plaintiffs are guilty of laches in holding possession of the mill after suit was started. Defendants did not accept tender. It was upon plaintiffs then to stand to their tender, to save the property, so that, if they prevailed in the suit and the court required equity at their hands, they might restore what of value they received in the transaction. The argument has no merit. 3 Black on Rescission and Cancellation (2d Ed.), § 625; O'Neill v. Kunkle,244 Mich. 653; Augustyn v. Zawacki, 250 Mich. 218.

In decreeing rescission and to restore status quo, the court properly took account of disbursements, benefits, and the like as between the parties. 3 Black on Rescission and Cancellation (2d Ed.), § 634 et seq.

No other question calls for discussion.

Decree affirmed. Costs to plaintiffs. Cause remanded.

BUTZEL, C.J., and WIEST, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.