Page:Federal Reporter, 1st Series, Volume 7.djvu/433

 EMMA, ETC., CO, (LIMITEd) V. EMMA, ETC., 00. OP N. T. 4Sll �cannot be af&rmed with certainity that the case hoHs, as a general proposition of law, that suing the guilty party for deceit in a sale ipso facto, and in all cases, is to be deemed to be an election to affirm and not to disaffirm the contract. It is impossible to notice in detail all the authorities cited, most of which, indeed, have no bearing on this precise ques- tion, except as they affirm the general doctrine of the effect of the election of inconsistent remedies as constituting an affirmance of the contract. Nearly all the cases are sucb that the prior suit relied on as an election is an unequivocal act adopting the contract and seeking to recover the fruits of it, or a benefit to which the party was entitled only upon its being continued in force; as, for instance, suits by the vendor to recover the purchase money and the like. There are, however, several cases which appear to hold that an action to recover damages for deceit in a sale does not imply an affirmance of the contract, but is consistent with its disaffirm- ance. Hersey y. Benedict, 15 Hun, 282; Whitney v. Allaire, 1 N. Y. 305; Hubbell v. Meigs, 50 N. Y. 480; Ilenderson v. Bacon, L. E. 5 Eq. 249. Upon principle I can see no nec- essary inconsistency between an action against the agents of the vendor to recover damages for their deceit in effecting the sale, and its disaffirmance as against the vendor himself, The deceit practiced, resulting in damages, is a valid cause of action against the agents to the fall extent of the damages suffered. That damage may be reduced, indeed, by partial reparation made by the vendor himself. So, too, if the vendee elects to keep the property, and it has value in Comput- ing the amount of damage recoverable against the guilty agents, that value must be credited; and if, at any time before the damages for the deceit are assessed, there has been an election to affirm, that fact may be shown in reduction of the damages ; but I can see no principle of law or justice that requires me to hold that the retention of the property as against the vendor discharges or waives this valid claim for damages against the agents. On the contrary, so to hold would in many cases operate most injuriously against a party defrauded, and in favor of the wrong-doer, and such a ��� �