Page:Federal Reporter, 1st Series, Volume 7.djvu/434

 422 FEpSBAIi BEPOBTEB. �rule would in many aases operate praotically to protect him from all the consequences of his fraud when once it had been successfully accomplished. Take, for instance, a case like the present, as stated in the bill, — a purehase of property for an immense priee paid, but of comparatively small, yet of some considerable value, the sale being effected through the deceit of the agents of the vendor. Suppose, also, as is often the case, that it is impossible to recover full compensation or any considerable part of the price from the vendor himself. Would there be any justice or reason in making the retention of the slight benefit which the vendee bas received from the vendor, to the exclusion of some other remedies, a condition for his recovering the damages whioh he bas actually suffered against parties by whose fraud that damage was effected, against whom alone he may have any fair expectation of full reparation, or in releasing sueb parties from their liability to make good the loss on aecount of any dealing with their principal short of full reparation for the injury ? �I have therefore corne to the conclusion that an action for deceit against the agent is not iuconsistent with the disaffirm- ance of the sale. It is consistent either with its affirmanee or its disaffirmance. The complaint against the agent may be framed so as to be an afSrmance or a disaffirmance by containing a deliberate adoption of the sale as valid and in force, or a deliberate rejection of it as void. There is noth- ing in the form of the complaint in the former suit here re- lied upon whicb amounted to an adoption or a disaffirmance of this contract of sale. It did not unequivocally show an elec- tion to affirm or disaffirm. It left the plaintiff free, consist- ently with all the averments of fact contained in the com- plaint, to insist that the same facts therein set forth as to the ground of damages for fraud also entitled the plaintiff to restore the property to the vendee, and demand any further reparation for the wrong against the vendor. It does not ask to have the value of the property retained set off against the price paid, in measuring the damages. On the oontrary, it claims as damages for the fraud an amount equal to the whole price paid. The complaint contains an ad damnum of $5,000,- ��� �