Dertinger v. Lathrup

Michigan Supreme Court

Dertinger v. Lathrup

232 N.W. 213, 251 Mich. 476, 1930 Mich. LEXIS 627

CourtMichigan Supreme Court

DecidedOctober 3, 1930

DocketDocket No. 6, Calendar No. 34,687.

StatusPublished

Cited by3 cases

This text of 232 N.W. 213 (Dertinger v. Lathrup) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dertinger v. Lathrup, 232 N.W. 213, 251 Mich. 476, 1930 Mich. LEXIS 627 (Mich. 1930).

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Opinion

Fead, J.

In June, 1926, plaintiff agreed to purchase certain lots from defendants on contract. She gave them a deed of another lot as down payment. Difficulty arose about the execution of formal contracts, and, upon the claim that she had been defrauded in the purchase, plaintiff commenced suit for rescission in August. The cause came on for hearing in April, 1927, at which time, through negotiation of the attorneys, a settlement was reached and contracts of purchase were executed, differing in some respects from the original agreement. Plaintiff commenced payments on the contracts in January, 1928, and continued to December, 1928. She became delinquent, foreclosure was threatened, and she began this suit in March, 1929, to rescind the contracts and recover the payment of land and money on the basis of the original fraud claimed. Defendants had decree dismissing the bill, but without costs, and both parties appealed.

By making the settlement, executing new contracts, and partially performing them, after discovery of the fraud, plaintiff waived the right to rescind on the basis of such fraud. Tacey v. State Bank, 242 Mich. 258; Donaldson v. Simons, 238 Mich. 65; Jensen v. Evans, 230 Mich. 199; Kintz v. Galvin, 219 Mich. 48; Zounes v. Dassios, 233 Mich. 651.

Defendants were entitled to costs in circuit court. As so modified, the decree is affirmed, with costs.

Wiest, C. J., and Butzel, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred.

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Fead, J.

In June, 1926, plaintiff agreed to purchase certain lots from defendants on contract. She gave them a deed of another lot as down payment. Difficulty arose about the execution of formal contracts, and, upon the claim that she had been defrauded in the purchase, plaintiff commenced suit for rescission in August. The cause came on for hearing in April, 1927, at which time, through negotiation of the attorneys, a settlement was reached and contracts of purchase were executed, differing in some respects from the original agreement. Plaintiff commenced payments on the contracts in January, 1928, and continued to December, 1928. She became delinquent, foreclosure was threatened, and she began this suit in March, 1929, to rescind the contracts and recover the payment of land and money on the basis of the original fraud claimed. Defendants had decree dismissing the bill, but without costs, and both parties appealed.

By making the settlement, executing new contracts, and partially performing them, after discovery of the fraud, plaintiff waived the right to rescind on the basis of such fraud. Tacey v. State Bank, 242 Mich. 258; Donaldson v. Simons, 238 Mich. 65; Jensen v. Evans, 230 Mich. 199; Kintz v. Galvin, 219 Mich. 48; Zounes v. Dassios, 233 Mich. 651.

Defendants were entitled to costs in circuit court. As so modified, the decree is affirmed, with costs.

Wiest, C. J., and Butzel, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred.

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Bluebook (online)

232 N.W. 213, 251 Mich. 476, 1930 Mich. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dertinger-v-lathrup-mich-1930.

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