Damm v. Vincent

Brooke, J. (after stating the facts). There are some 25 assignments of error which we find'it unnecessary to discuss seriatim. That plaintiff was victimized in the transaction by Fraser and his irresponsible tool, Colwell, clearly appears from this rec [156] ord. That defendant, Vincent, was either morally or legally bound by those representations does not so clearly appear, but, assuming that defendant, Vincent, was engaged actively in a conspiracy with Fraser and Colwell to defraud plaintiff, and that the fraud was accomplished, there would appear to be an insuperable objection to plaintiffs recovery. It is quite clear that on October 11th plaintiff became fully advised of the fraud that had been perpetrated upon him, and though he claims to have told Colwell that he wanted his mortgage back, he took no steps to disaffirm the contract which was made, not with Colwell, but with Fraser, and continued to exercise dominion and control over the property for upwards of two months thereafter, during which time he caused it to be twice conveyed. It is elementary that upon the discovery of fraud the party elected-to disaffirm upon that ground must act with diligence and without unreasonable delay. Jewett v. Petit, 4 Mich. 508; Carroll v. Rice, Walk. Ch. (Mich.) 374; Campan v. Van Dyke, 15 Mich. 371; Wright v. Feet, 36 Mich. 213. We are of opinion that the motion for a directed verdict in favor of the defendant should have been granted upon the third ground' urged by his counsel. The judgment is affirmed. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.