Page:Federal Reporter, 1st Series, Volume 7.djvu/432

 420 FEDBEAL REPORTER. �an election to affirm need not be a transaction with the other party to the contract personally ; as, for instance, a suit against him personally. It may be an unequivocal dealing with the property itself inconsistent with an intention to restore it, or a suit against another person, which proceeds upon an un- equivocal affirmance of the contract, and seeks relief for its enforcement. �Wbether the bringing of the action brought agaiust Park and Baxter for deceit, to recover damages for the alleged frauds committed by them in eflfecting the sale, while they were acting as agents of the vendors, was such an affirmance of the sale, bas been debated with great earnestness and learning by the counsel in this case. �Authorities almost without number have been cited as bearing upon the question, yet no case has been referred to which is a direct and decisive authority upon the question. Numerous dicta have been found to the general proposition that a vendee has bis election to affirm the sale and recover damages for the fraud, or to disaffirm it and recover the con- sideration. The case which comes nearest to sustaining the position of the defendants, that bringing an action of deceit to recover damages for the fraud will constitute an election to affirm the sale, is Kimball v. Cunningham, 4 Mass. 505. This case contains a ruling of Chief Justice Parsons to that effect, which perhaps can hardly be called a, mere dietum, although the ruling is made after disposing of the case upon other grounds. The opinion of that learned judge is cer- tainly entitled to the greatest consideration, but it is to be observed that the case does not disclose the precise form of the declaration in the prior action for deceit. No doubt a declaration in an action for deceit may be so framed as expressly and unequivocally to affirm the contract of sale; as, for instance, if it sets forth the sale, the fraud and deceit, the use or retention of the property, and claims damages for the difference between its actual value and the value which it was represented to have. The learned Chief Justice, in the case referred to, based bis ruling on a partieular suit brought, and unless it can be ascertained what was its precise form ii ��� �