Page:Federal Reporter, 1st Series, Volume 7.djvu/430

 418 IBDBEAL BBPOBTBB. �alleged in the bill, and ajso the commencement of the other suit in this court brongbt against the defendant Park, among pther things to reoover damages for failure on bis part to daliver certain ores mentioned in the contract of sale, and therein agreed to be delivered to complainant, and wbicb, by the original contract of sale, the defendant Park bound bim- self peisonally to deliver. The record produced shows that this second action resulted in a judgment of nonsuit by rea- spn of the complainant's failure to appear and prosecute it ^fter issue joined. �Tbe plea avers that by said actions the complainant bas elected to affinn, and bas thereby in legal effect affirmed, the contract, and; elected to bold the property thereby obtained, and cannot be beard after such election to demand the resois- sion of the sale. The first question raised under this plea is as to the meaning and scope of the plea itself. It is insisted by the d€>fendant8 that the plea, should be sustained on the grpund that the facts therein alleged show laches and inex- cusable delay on the part of the complainant in bringing this suit. The plea indeed avers that this suit was not commenced until November, 1877, about 6 years after the sale sought to be rescinded. The averment of the time of the commence- ment of the suit for the purpose of showing that it was after the commencement of those prior suits, whicb are relied upon asindicating or constituting an election to affirm the contract, was a proper averment in a plea designed to raise the defence of an election to affirm the sale by the bringing of those suits ; and it is not to be argued from this averment that the plea was intended also as a plea of laches. The plea itself states with great exactness the point by way of defence to which its averments are designed to converge, namely, the affirmance of the sale by electing to take remedies inconsistent with ita rescission. This is a different defence from laches or delay in proceeding to bring the suit to rescind. Moreover, the court refused to allow a plea qi laches or of general acquies- cence to be filed, and if the plea were ambiguous, as it is not, it would be construed as being designed to be in conformity with the leave to plead given by the court ; nor could it be con- ��� �