Page:Federal Reporter, 1st Series, Volume 7.djvu/431

 EMMA, ETC., CO. (iiIMITED) V. EMMA, ETC., 00. OF N. Y. 419 �strued as a plea of lachea, as well as a plea of election to affirm; •without being held bad as setting up two defences in the same plea. For these reasons it must be held that the only question raised is whether, by one or both of the former suits, the complainant has elected irrevocably to affirm the sale in such manner that he has lost the right to rescind it, if that right ever existed. That the sale, if impeachable at all, was voidable only, and not void by reason of the faets alleged in the bill,^is entirely clear. That in such a case the vendee has an election to afiSrm or to rescind, upon coming to a full knowledge of the facts, is also well settled. Any deliberate act on his part, done with the full knowledge of his rights,- ineonsistent with an intention to rescind, and in effect taking advantage of the sale for his own benefit, will constitute an election to affirm the sale, by which he will be bound. This doctrine seems to rest not upon the principle of a new con- tract between the parties, nor yet upon the ordinary principle of estoppel in pais, but rather upon a distinct principle of public policy, that all that justice or equity requires for the relief of a party having such cause to impeach a contract is that he should have but one fair opportunity, after full knowl- edge of his rights, to decide whether he will affirm and take the benefits of the contract, or disaffirm it and demand the consequent redress. Any other rule would be regarded as unjust, even- towards the party guilty of the wrong out of which grows the right to rescind. Hence, also, it is a consist- ent part of the same rule that the election to affirm or disaf- firm must be made with reasonable diligence after the cause for disaffirmance is fully discovered. It is clear enough that the taking of legal remedies, by action against the other party to the contract, which are consistent only with a purpose to affirm and take the benefit of the contract, if deliberately done with full knowledge of his rights, will extinguish the right to disaffirm the contract. The difficulty in this partic- ular case is to determine whether the remedies taken against the defendant Park, and relied on in this plea, are consistent only with such a purpose to affirm the sale. I think the authorities are clearly to the effect that the act constituting ��� �