Papciak v. Morawski

219 N.W. 601, 243 Mich. 157, 1928 Mich. LEXIS 603

• Court: Michigan Supreme Court
• Decided: June 4, 1928
• Docket: Docket No. 144, Calendar No. 33,438.
• Status: Published

Opinion

Fead, C. J.

This is a bill in chancery, filed June 5, 1926, for rescission of an exchange of property made May 10, 1926. Plaintiffs had decree. Plaintiffs traded a store on Canfield avenue in the city of Detroit to defendants Morawski for two houses located on Berry and Maywood avenues respectively. Matecki and Pewinski were the brokers who negotiated the exchange. Immediately after the execution of the in struments, plaintiffs moved into the Berry premises and defendants Morawski into the Canfield store. The Maywood property was purchased on contract and the contract assigned to plaintiffs. Plaintiffs neglected to make the contract payments, as they covenanted to do, and in August, 1926, the vendor regained possession through summary proceedings. Plaintiff Papciak stated that he refused to make the payments because the property was “ruined,” but he did not state the character of the ruin. He said:

“I would make these payments if it was not ruined as it was.”

Plaintiffs seek rescission upon the ground of fraud.

It is not necessary to discuss the testimony in detail because plaintiffs cannot prevail in this action. Having permitted forfeiture of the contract on the May-wood premises, they are not in a position to restore to the defendants Morawski what they received from them. Substantial return to the status quo ante is of the essence of the action. Merrill v. Wilson, 66 Mich. 232; Vernon v. Antona, 222 Mich. 83; May v. Otto, 236 Mich. 540.

The decree is reversed, and one may be entered dismissing the bill, with costs to defendants.

North, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.