106 Mich. 342 | Mich. | 1895
The declaration in this case contains the common counts in assumpsit and a special count, also in assumpsit, which sets forth, substantially, that Joseph Coon was a resident of the county of Wayne, and had real estate of the value of $100,000, and personal estate of the value of $2,000; that he died intestate, leaving a widow and heirs art law; that plaintiff was one of such heirs at law, and, as such, entitled to an undivided one-sixth of his estate; that the debts of the estate were less than the sum of $8,000, and the widow somewhat advanced in years, so that the value of her dower did not exceed the sum of $16,000; that the net one-sixth undivided share possessed by the plaintiff was of the value of $15,000; that defendants knew the values above mentioned, but plaintiff’s home was in Montana, and she herself was not familiar with the value of her father’s estate, or the amount of his debts, or with the value of the widow’s dower, and she was without means to go to Detroit, from Montana, to look after her interest; that she was unaccustomed to business and to transactions like those mentioned; that defendant Fuller was appointed administrator of the estate of Joseph Coon; that he qualified, and entered upon the performance of his duties; that he was and is. an attorney and counselor at law, duly licensed to practice in the courts of this State; that the other defendants (Wilmarth and Reaurne) were his clients and friends, and frequenters of his office in Detroit; that on April 1, 1889, the three defendants entered into a conspiracy to defraud the plaintiff of the greater part of her share of her father’s estate; that on October 3, 1889,
Provided, always, and these presents are upon this express condition, that if the said parties of the first part [Reaume and wife] shall and do well and truly pay or cause to be paid to the said party of the second part [plaintiff] the sum of four thousand dollars, within two years after the estate of Joseph Coon, deceased, is fully settled and distributed, — this mortgage is to draw legal interest from and after the time said estate is fully settled and distributed, and that said legal interest is six per cent, per annum, all interest to be due and payable semi-annually; and after the said settlement of said estate, and the distribution of the. same, said first parties to have the privilege of paying the whole or any part of the principal sum due hereon at any time, — according to a promissory note, bearing even date herewith, executed*346 by Denis J. Reaume to the said party of the second part, to which this indenture is collateral security, then these presents and said promissory note shall cease and be null and void.”
That the promissory note is in the words and figures following:
“$4,000. December 7,1889.
“According to a real-estate • mortgage, after date I promise to pay to the order of Josephine Cole four thousand dollars, at law office of Jay Fuller, Detroit, Mich., with interest, according to a'real-estate mortgage bearing even date herewith and collateral "hereto. Value received.
“Denis J. Reaume.”
That two months later, namely, on February 10, 1890, the plaintiff made an assignment of this mortgage to defendant Wilmarth, and received from all the defendants $1,000 in money, and the promise of all to pay her the balance when the mortgage should be collected, and that the mortgage and assignment were then recorded; that the following summer, namely, June 21, 1890, this being between nine and ten months after she had conveyed' her interest to Reaume, plaintiff, at the special instance and request of all the defendants, executed another and a full assignment to Wilmarth of the mortgage given by Reaume, and upon receiving this full assignment all the defendants paid to her the sum of $3,000, being the entire balance owing to {her.
The count avers that for the purpose of inducing plaintiff to execute the deed of October 3, 1889, the first assignment to Wilmarth (that of February 10, 1890), the further assignment of June 21, 1890, and to accept the sum of $4,500 as the purchase price of her said share, the defendants, and each of them, made certain fraudulent representations, substantially as follows:
1. That her share was not worth to exceed $4,500.
2. That the widow’s dower would absorb about half of the estate.
3. That the widow insisted upon having, for her right
4. That the debts and expenses of administration would be between ten and twelve thousand dollars, and that it would take all of the farm lands of Joseph Coon to pay the same.
5. That the estate was so involved in litigation that the heirs at law would not realize anything.
6. That it would be necessary to sell the estate of Joseph Coon at forced or auction sale to pay the debts of the estate.
7. That the heirs of Joseph Coon, including the plaintiff, were not entitled to draw any money from the estate, or to realize thereon, until the estate was settled, and that the plaintiff could get all the money she wanted, from any one, on the mortgage given to her by defendants.
8. That the other children and heirs of Joseph Coon were not entitled to receive, and could not and would not get, more than $4,500 for or from their respectivé shares of the estate, and that that amount was all that the one-sixth share of said estate was worth.
The count then avers that the plaintiff believed these representations, and, if she had not been deceived and misled by them, would not have made the deed or assignments, nor would she have accepted the $4,500 as the purchase price, and that by means of the promises, and in consequence of the fraud, the defendants deprived her of all the value of her share of her father’s estate, over and above the sum of $4,500. The count adds:
“Waiving the’tort, and suing in assumpsit, * * * the defendants became and were and are liable to pay to the plaintiff the difference between the said sum of $4,500 and the real and actual value of her share in her father’s estate, * * * and, being so liable, * * * the defendants promised to pay to the plaintiff the said sum of money.”
Two of the defendants (Jay Fuller and Hiram D. Wilm'arth) demurred to this count. They assigned three causes of demurrer: (1) That said special count does not state a cause of action founded on contract, either express
The damages claimed by this count is the difference between the sum paid for the deed and the actual value of plaintiff’s share of her father’s estate. It, is the only sum claimed by this count. It is this amount out of which plaintiff claims to have been defrauded by the defendants. The count sets out that the consideration for the deed was $4,500, and it is admitted that she received that amount. This is the only sum which defendants agreed to pay, and that amount has been paid. If a fraud was perpetrated, it was in procuring the deed at the price of $4,500, and it was then and there accomplished. But plaintiff, by her declaration, waives the tort, and sues in assumpsit. We think the averments in the declaration preclude a recovery in this form of action. The agreed price for the property was $4,500, and no implication can arise that any greater sum was agreed upon. We think the case is ruled by Galloway v. Holmes, 1 Doug. (Mich.) 330, and Emerson v. Detroit Steel & Spring Co., 100 Mich. 127. One who has been induced by the fraudulent representations of another to enter into a contract may affirm or disaffirm it. If he disaffirm, and assent the fraud, he cannot, in the same action, turn it into an action of assumpsit, and recover as for an implied promise. As was said in Emerson v. Detroit Steel & Spring Co., supra:
“It is suggested that, as a fraud was perpetrated upon the creditor, he would have the right to waive the tort and sue in assumpsit. But we are aware of no case which authorizes a party to first turn a contract into a tort, and then shift it back into the form of a new contract other than the original one.”
The judgment below must be affirmed.
