
    BEDIER v. FULLER.
    Fraud — Election of Remedies — Waiver of Tort.
    One who has been induced by fraudulent representations to sell property for less than its real value cannot disaffirm the con - tract, and, waiving the tort, maintain assumpsit as upon an implied promise for the difference between the amount so received and the actual value of the property.
    Error to Wayne; Carpenter, J.
    Submitted June 7, 1895.
    Decided September 26, 1895.
    
      Assumpsit by Josephine Bedier against Jay Fuller and others to recover the difference between the actual value of plaintiff’s interest in her father’s estate and the amount for which she sold the same to defendants by reason of their alleged fraudulent representations. (See 95 Mich. 518.) From a judgment for defendants on demurrer to the declaration, plaintiff brings error.
    Affirmed.
    
      F. A. Baker (George Gartner, of counsel), for appellant:
    In support of the proposition that plaintiff could waive the tort and sue in assumpsit, counsel cited: Moore v. Mandlebaum, 8 Mich. 433; Fiquet v. Allison, 12 Mich. 328; Johnson v. Insurance Co., 39 Mich. 33; Barnard v. Colwell, 39 Mich. 215; Chandler v. Childs, 42 Mich. 128; McLaughlin v. Salley, 46 Mich. 219; Nugent v. Teachout, 67 Mich. 571; Tuttle v. Campbell, 74 Mich. 652; Aldine Manfg. Co. v. Barnard, 84 Mich. 632; Railway Co. v. Chew, 67 Ill 378; Dietz v. Sutcliffe, 80 Ky. 650; Roberts v. Evans, 43 Cal. 380; Lehmann v. Schmidt, 87 Cal. 15; Roth v. Palmer, 27 Barb. 652; Hawk v. Thorn, 54 Barb. 164; Putnam v. Wise, 1 Hill, 234, 240 (note a); Berly v. Taylor, 5 Hill, 584 (note a); Goodwin v. Giiffis, 88 N. Y. 629; Blalock v. Phillips, 38 Ga. 216; Manufacturing Co. v. White, 53 Ga. 395; Evans v. Miller, 58 Miss. 120; Logan v. Wallis, 76 N. C. 416; Nor deny. Jones, 33 Wis. 604; Walker v. Duncan, 68 Wis. 624; Morford v. White, 53 Ind. 547; Stockett v. Watkins, 2 G. & J. 343; Gordon v. Bruner, 49 Mo. 570; Winter v. Bandel, 30 Ark. 362; Jones v. Hoar, 5 Pick. 285; Marshall v. Gilman, 47 Minn. 131, 52 Minn. 88.
    
      John D. Conely, for appellees:
    Fraud does not render a contract void, but merely voidable at the election of the defrauded party; and if a vendor, having a right to rescind a contract of sale of goods on account of the fraud of his vendee in making the purchase, brings indebitatus assumpsit to recover the price of the goods, he thereby affirms the contract. Galloway v. Holmes, 1 Doug. (Mich.) 330; Jewett v. Petit, 4 Mich. 508; Emerson v. Detroit Steel & Spring Co., 100 Mich. 127. One who has been induced by the fraudulent representations of another to enter into a contra ct may affirm or disaffirm it; but he cannot do both, and he must affirm or disaffirm altogether. He cannot adopt the part which is for his own interest and reject the residue. Same oases, and Peninsular Bank v. Hanmer, 14 Mich. 208; Merrill v. Wil
      
      son, 66 Mich. 232. Where the defrauded party rescinds an express contract, he cannot set up an implied one (Galloway v. Holmes, 1 Doug. [Mich.] 330; Jewett v. Petit, 4 Mich. 508; Emerson v. Detroit Steel & Spring Co., 100 Mich. 127); and plaintiff’s only remedy is to take the contract as it is, or sue in an action on the case (Jewett v. Petit, 4 Mich. 508; Walsh v. Sisson, 49 Mich. 423; Emerson v. Detroit Steel & Spring Co., 100 Mich. 127).
   Long, J.

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, at the special instance and request of all the. defendants, plaintiff executed, at Montana, and forwarded and delivered to all the defendants, at Detroit, a deed and conveyance, running to the defendant Reaume, of her one-sixth interest in her father’s estate; that about two months later, namely, on December 2, 1889, the defendant Reaume and his wife gave to one Josephine Kenney a. mortgage on that part of said one-sixth which was situated on Michigan avenue, in Detroit; that, upon the security of this mortgage, all the defendants borrowed from said Josephine Kenney the sum of $500, which money they all caused to be paid to the plaintiff, as a part of the consideration for her deed above mentioned; that all the defendants thereupon caused this Kenney mortgage to be recorded, and at the same time the deed from plaintiff was recorded, so that the Kenney mortgage was the first mortgage or lien on the property described in it, being plaintiff’s share in the Michigan avenue lots; that five days later, being December 7, 1889, all the defendants caused Reaume to give the plaintiff a mortgage on the one-sixth interest in the Michigan avenue lots, and upon a sixth interest in a small house on Howard street, as the remaining part of the consideration for her deed; that the condition of this mortgage from Reaume to the plaintiff is as follows:

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 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 of dower, $30,000 in cash, and that this would fake two-thirds of the estate, if it was sold at auction.

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 or implied; (2) that said special count does not state a cause of action for which assumpsit will lie; (3) that said special count does not state a cause of action which will warrant or sustain a writ of attachment. The demurrer was sustained in the court below. Judgment was entered for defendants Fuller and Wilmarth on this demurrer. Plaintiff brings the case into this court by writ of error.

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 cases above cited are so squarely in point that we deem further discussion of the question unnecessary.

The judgment below must be affirmed.

The other Justices concurred.  