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Dubois v. Butz Industries6/4/2002
the court's equitable power to set aside the agreement on the ground of his incapacity. The complaint stated a claim, contrary to the trial court's ruling.
Nevertheless, we conclude that the court properly refused to set aside the settlement agreement because plaintiff failed to tender back the consideration received for the redemption agreement as a condition precedent to seeking rescission of the agreement. In McDonald v Zinn Drywall, 134 Mich App 270, 274-275; 350 NW2d 864 (1984), this Court held that a tender back of sums paid under a redemption agreement was necessary to maintain an action to set aside the agreement on the basis of mutual mistake. See also Stefanac v Cranbrook Educational Community (After Remand), 435 Mich 155, 177; 458 NW2d 56 (1990). For the reasons stated in Solo, supra, discussed above, this rule should apply with equal force when seeking to set aside a redemption agreement on the basis of lack of capacity. Because plaintiff has never disputed that he failed to tender back the redemption amount, summary disposition was appropriate.
Affirmed.
E. Thomas Fitzgerald
Donald E. Holbrook, Jr.
Martin M. Doctoroff
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