Page:Federal Reporter, 1st Series, Volume 7.djvu/435

 EMMA, ETC., CO. (LIMITEd) V. EMMA, ETC., CO. OF N. i. 423 �000, — the same amount as the purchase priee of the prop- erty, — but this is demanded, not as theprice, but as damages for the deceit. The complaint, indeed, states that the plaintiff was, by the deceit charged, induced "to purchase" and did "pur- chase" the property; but this averment must not be under- stood as an election to consider the purchase as one not void- able. It was properly averred to be a purchase for the purpose of that action, though voidable. The terms usedare to be construed merely as descriptive of the transaction, and the plaintiff was not called upon then and there to declare his intention to avoid or to affirm it. The commencement of that action must, therefore, be held not to predude the com:- plainant from its remedy by rescission, if it has such remedy, on other grounds. Nor has the judgment for the defendants in that action any such effect. Even a judgmantagainBtthe defendants would not so operate unless it were siatisfied, for the reason above stated. �The other suit set forth in this plea as an act electing to afiSrm the sale is an action brought by this complainant against the defendant Park to recover damages for the non- delivery of ore agreed to be delivered in the contract of sale which -was executed by Park on his own behalf, as well as on behalf of the vendors, his principals in the transaction. The complaint alleges the making of the executory contract of sale ; that by said agreement Park agreed to sell to the plain- tiff, this complainant, the ore in question; that said contract was afterwards performed in all respects on the part of the plaintiff, but that it had not been performed on the part of defendant Park, or by the Emma Silver Miping Company of New York, the vendor, in certain respects, including this : that the defendant Park, though often requested, has not deliv- ered or caused to be delivered to the plaintiff, or accounted to the plaintiff, for a certain specified part of the ore so agreed to be delivered, whereby the plaintiff is alleged to have suf- fered damages to the amount of $350,000. This was, in ef- fect, unlike the action for deceit, an action brought to enforee the contract of sale. The daim made for damages on ac- count of the partial non-delivery is wholly inconsistent with ��� �