Epstein v. Rosenfield

McDonald, J. The parties entered into- a written contract by which the plaintiffs agreed to sell to the defendant certain real estate in the city of Detroit. The defendant gave as the first payment two checks for $200 and $300, respectively. • When these checks were presented for payment at the bank it was found that the defendant had no funds there. When appealed to, the defendant at first agreed to make the checks good, but later declared that he did not want the property and abandoned the contract. The checks were not paid. Subsequently the plaintiffs sold the property to another party for $500 less than the defendant agreed to pay for it. The plaintiffs then brought this suit to recover the amount of the two checks. The declaration is on the common counts in assumpsit to which is attached a bill of particulars which recites that the action' is brought because of defendant’s failure to pay the checks in question. The defendant pleaded the general issue with notice that the checks were obtained through fraud, misrepresentation and duress, and were without consideration. At the conclusion of plaintiffs’ case the defendant offered no proofs but made a motion for a directed verdict. The motion was granted. Assigning this as error the plaintiffs have brought the case here for review. This suit is for a part of the purchase price of the property. When the defendant abandoned the contract, plaintiffs could have maintained an action against him for the entire purchase price. If they [360] had taken that course it would have been necessary for them to retain title to the property so that they could perform oh their part. If defendant is required to pay the purchase price he is entitled to a deed. Plaintiffs have sold the property to another and cannot give him a deed. By parting with all of their interest they have made performance on their part impossible, and therefore cannot insist on performance by the other party. They are not now entitled to the purchase price or any part of it. If they have any remedy it is in an action for damages for breach of contract. The circuit judge did not err in directing a verdict for the defendant. The judgment is affirmed. Defendant will have his costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.