Cross, Foote & Sessions,

Attorneys for Defendants. Henry Bradford & Co., and Jesse B. Bradford.

(f) Authorities Relied Upon by Plaintiff-Brief for Plaintiff.-Plaintiff made a tender to defendant a few days after the transactions, which defendant refused to accept and the case of Merrill v. Wilson, 66 Mich. 243, which defendant submits in support of his contention that plaintiffs are not entitled to a cancellation of their assignment because they cannot place the defendant in statu quo, is to be distinguished from this case. In the Merrill case the plaintiff had waited a long time before bringing suit and had affirmed the contract by bringing suit against the defendant for money due under the agreement.

The case of Scandin v. Sherwood, 67 Mich. 230, bears a striking resemblance in facts to the case at bar. The parties in that case exchanged their farms on the representations of the defendant that he owned in fee and had a good title to the land; that it was not encumbered except by a $1300 mortgage and was worth $2800. Defendant in addition to his farm paid complainants $200.00 in money. In granting relief to complainants the court uses the following language (p. 231):

"The testimony contained in the record before us proves that the foregoing representations as to title and value were false in all material particulars and complainants have received substantially nothing for their house and lot. The land was not worth the amount of the mortgage.* * * We think complainant ought not be compelled to litigate the title whether it should turn out to be good or bad. They were entitled to have a marketable title to the land in their own name at the time the bargain was closed. They did not bargain for a lawsuit but for a clear title and not having obtained one are entitled to have the bargain rescinded upon repaying the $200.00, and tender of a quitclaim deed for complainants, and surrender of possession of the farm."

All the elements constituting fraud have been established and the trial judge had the opportunity to see and hear witnesses and to form a proper estimate of the character and value of the testimony.

The defendant attempted to show that the complainant saw and examined the farm before entering into the transaction and that no deception was practiced. In this connection the case of Starkweather v. Benjamin, 32 Mich. 305, is in point. This was an action for damages arising from alleged misrepresentation made by Starkweather to Benjamin, concerning the quantity of land in a parcel purchased from Starkweather and others for whom he acted, and which was bought by the acre. The defense rested mainly on the ground that the purchaser saw the land, and was as able to judge of its size as Starkweather.

Justice Campbell in his opinion states (p. 306): "We do not think the doctrine that where both parties have equal means of judging there is no fraud applies to such a case. The maxim is equally valid, that one who dissuades another from inquiry and deceives him to his prejudice is responsible." The statements in this opinion can be very properly applied to the facts in the case at bar. "By the overwhelming weight of authority, ordinary prudence and diligence do not require a person to test the truth of representations made to him by another as of his own knowledge, and with the intention that they shall be acted upon, if the facts are peculiarly within the other party's knowledge or means of knowledge though they are not exclusively so, and although the party to whom the representations are made may have an oppor tunity of ascertaining the truth for himself." Am. & Eng. Enc, Vol. 14, p. 120 (2nd ed). Citing: Picard v. McCormick, 11 Mich. 68; Eaton v. Winnie, 20 Mich. 156; Kost v. Bender, 25 Mich. 515; Jackson v. Collins, 39 Mich. 558; Nowlin v. Snow, 40 Mich. 699; Jackson v. Armstrong, 50 Mich. 65.

In a recent case, Bunting v. Creglow (N. D.), 168 N. W. Rep. 731, presenting strikingly similar facts to the case at bar, the court in decreeing a rescission of the contract for an exchange of a tract of land, on the ground of defendant fraud, uses the following language: "The case is too plain. When it appears that a party has made a contract which no person of common sense would make if correctly informed, the fair presumption is that he was induced to make such a contract by fraud and misrepresentation. The plaintiff has fully complied with all the conditions necessary to a rescission of the deal. Really it does seem that counsel should know better than to appeal such a case as this."

(g) Authorities Relied Upon by Defendant-Brief for Defendant.-Fraud, sufficient to cancel an instrument, as is sought to be done in this case, namely, the assignment of the plaintiffs' land contract to the defendant, must be clearly and plainly proven and relief will not be granted unless the falsity of the alleged false reprsentations is certainly proven and unless the plaintiffs have been deceived and injured by them. Such is the rule laid down in the case of Oliver v. Baldwin, 201 Mich. 362, where this court, quoting with approval from the opinion rendered in the case of Atlantic Delaine Company v. James, 94 U. S. 207, 214, used the following language: "Canceling an executed contract is an exertion of the most extraordinary power of a court of equity. The power ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them."

It has also been held by this court to be elementary that fraud is not to be lightly presumed but must be firmly established by proof. A. E. Wood & Company v. Drug Store, 192, Mich. 456.

BARNHARDT v. HAMEL, 207 Mich. 232-

(a) Brief Statement of Fact.

(b) Declaration.

(c) Plea.

(d) Authorities Cited by Defendants-Brief of Defendants.