Wendt v. McGuire

BROOkE, J. (after stating the facts). All the errors assigned may be considered together. The underlying question for determination is whether, when the plaintiff started his replevin suit, he was entitled to the possession of the property in question. At that time he had bought the property from defendant, he had sold it to defendant’s father, had received from the defendant’s father the purchase price agreed upon between them, and had delivered possession of the property to defendant’s father, Thomas C. McGuire. His sole right to repossess himself of the property in question after the consummation of that transaction must rest upon a repudiation of the contract made between himself and Thomas C. McGuire upon the ground of fraud. If plaintiff sought to disaffirm that contract upon that ground, it was his manifest duty first to pay or tender to Thomas C. McGuire the money received from him as consideration for delivery of the property to him. Morrison v. Berry, 42 Mich. 389 (4 N. W. 731, 36 Am. Rep. 446); Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814); Hubbard v. Oliver, 173 Mich. 337 (139 N. W. 77); Kimble v. Gillard, 177 Mich. 250 (143 N. W. 79). Judgment affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.