Page:Federal Reporter, 1st Series, Volume 7.djvu/413

 BMHA, ETC., 00. (lIMITED) V. EMUA, ETO., CO. 07 N. T. 401 ���Emma Siltbr Mining Ce, (Limited) v. Emma Silybb Mining Co. OF New Yoek and others. �(Circuit Court, 8. D. Nm Ymk. September 30, 1880.) �1. Rbs AdjuDicata — Principal and Agent — Action foe Dbcbit — �Rescission op Contbact. �A judgment In favor of the defendants, in an action of deceit for inducing the plaintifiE to purchase property from the party whose agents the defendants were in such transaction of sale, is not a bar to a suit in equity brought by the same plaintifE against such princi- pal of said defendants to rescind the contract of sale, where the bill States, as one ground of rescission, that the sale was assented to on the part of the plaintifE, a corporation, by a board of directors, all the members of which, except one, were furnished with stock to qualify them as directors by the vendors and promoters of the Com- pany, orhad agreements with them which created an interest in pro- moting the sale inconsistent with the interests of the plaintiff, which facts were at the time of the sale unknown to the plaintiS, and were not alleged in the complaint in the action for deceit. �2. Same — Different Cause of Action— Deceit— Rbscission. �The judgment is not a bar unless for the same cause of action, and the cause of action is not the same if in the action for deceit a fact must have been determined in favor of the defendants which the plaintilT is not obliged to prove in order to entitle itself to a decree of rescis- sion, as in this case the fact of an intent to defraud ; or if the decree of rescission may pass upon proof of facts alleged in the bill which in the suit for deceit it was not necessary to prove to entitle the plaintifE to recover, as in this case the fact that the plaintill did not have an independent board of directors. �8. Same — PRiNcrPAL and Agent. �It seem» that a plaintiS who has brought his action against agents in a transaction, and has had judgment therein rendered against him, cannot litigate the same cause of action against the principal. �4. Sale— Ratification— Action fob Deceit. �The commencement and prosecution of an action at law against the agents of the vendor, to recover damages for deceit in inducing the plaintiff to purchase property, is not necessarily an election to afflrm the sale, so as to preclude the plaintifE from maintaining a subse- quent suit to rescind the sale. Such an action for deceit is not an election to afflrm where there is nothing in the complaint showing that the sale has been adopted and afflrmed, and where the ad dam- num in the complaint is the alleged priee paid for the property, Such complaint may be an election to afflrm the sale ; as, for instance, if it States that the property has been retained, and prays that the dlf- v.7,no.4— 26 ��� �