Sec 290

An election either to affirm or disaffirm a contract when once made is final. It is a question with which a party who claims to be defrauded cannot play fast and loose.5 Hence it has been held that a party who sets up fraud in a sale of goods cannot, before the expiration of the credit on the sale, sue for the price of the goods; his remedy, if the sale be disaffirmed by him as fraudulent, is to repudiate the sale and to sue in trover.6 Nor can a contract be ordinarily affirmed in part and disaffirmed in part.7 But it is otherwise when a contract Election is final and must be single.

1 Cairns, L. C. Ogilvie v. Currie, 37 L. J. C. 541, quoted Leake, 2d ed. 394.

2 Turner, L. J. in Jenning v. Bough-ton, 5 D. M. & G. 140, adopted Leake, 2d ed. 394.

3 DeBussche v. Alt, L. R. 8 Ch. D. 314; see Pence v. Langdon, 99 U. S. 581.

4 Infra, sec 919.

5 Clough v. R. R., L. R. 7 Ex. 26; see Bigelow on Fraud, 425; Ogilvie v. Currie, 37 L. J. C. 541; Selway v. Fogg, 5 M. & W. 83.

6 Ferguson v. Carrington, 9 B. & C. 59; Wald's Pollock, 507, citing Dellone v. Hull, 47 Md. 112, Kellogg v. Turpie, 2 Bradw. 55, concurring, and Wigand v. Sichel, 3 Keyes, 120, as diss.; S. P. Potter v. Titcomb, 22 Me. 300; Mc-Crillis v. Carlton, 37 Vt. 139; Evans v. Montgomery, 50 Iowa, 325.

7 Kerr on F. and M. 52; Bisph. Eq. sec 204; Great Luxembourg R. R. v. Magnay, 25 Beav. 586; Farmers' Bk. v. Groves, 12 How. 51; Potter v. Tit-comb, 22 Me. 300; Miner v. Bradley, is divisible, in which case the fraudulent branch of the contract may be singly repudiated.1 When, on the other hand, the contract consists of conditions reciprocally dependent, " it cannot be rescinded in part and stand good for the residue. If it cannot be rescinded in toto, it cannot be rescinded at all, but the party complaining of the non performance, or the fraud, must resort to an action for damages."2 - A contract cannot be rescinded as to one party and remain effective as to the other.3 - Affirmance merely precludes the right to rescind. A suit for damages for misrepresentation or fraud remains open.4.

Sec 291

Supposing a contract is so indivisible that if one part falls all the rest falls with it, then, if third parties without notice and for a good consideration innocently acquire rights under a voidable contract, this contract cannot be set aside by the party defrauded. Even assuming there was no negligence on his part, yet, between himself and innocent third parties, the loss should equitably fall on him in cases where his conduct led to the loss. This rule is applied in favor of a bona fide purchaser of a chattel from a party who has fraudulently obtained the property with the owner's consent.5 "It is quite clear that when a vendee obtains possession of a chattel with the intention by the vendor to transfer both the prop-erty and the possession, although the vendor has committed a false and fraudulent misrepresentation in order to effect a contract or to obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction; and the legal consequence is, that, if before the disaffirmance the fraudulent vendee has transferred over the whole or part of the chattel to an innocent transferee, the title of such transferee is good against the vendor."1 - The reason is this: On the one side all property would be destroyed if a thief could pass title to stolen goods. On the other side all business would be destroyed if a bona fide purchaser of a chattel had imputed to him the false representations by which his vendor obtained the chattel. The difficulty is solved by the intermediate position above stated. A party who parts with property as well as possession cannot pursue goods into the hands of bona fide vendees.2 But a party who receives property from a fraudulent vendee in payment of an antecedent debt takes it subject to the owner's rights;3 and so, a fortiori, as to an assignee taking with notice of the fraud,4 or taking without consideration.5 - Even when goods fraudulently obtained are levied on as the property of the person fraudulently obtaining them, the owner is entitled to the goods in the hands of the officer, notwithstanding the levy.1 And, as a general rule, parties who are implicated in the fraud, or who take with notice of the fraud, acquire no rights beyond those of their fraudulent assignor.2 Nor can the fraudulent vendee by selling to an innocent third party, and then buying back from him, obtain a good title against the true owner.3 Nor do purchasers without consideration take any better title than their assignors.4

Rescission cannot be granted if rights of third parties intervene.

22 Pick. 457; Filby v. Miller, 25 Penn. St. 264; Kellogg v. Turpie, 93 111. 265. See, however, contra, Roth v. Palmer, 27 Barb. 652; Wigand c. Sichel, 3 Keyes, 120.

1 Infra, sec 338; Bellamy v. Sabine, 2 Phillips, 425.

2 Per cur. in Nickel Co. v. Unwin, L. R. 2 Q. B. D. 214; citing Clarke v. Dickson, 1 E. B. & E. 148; see supra, sec 276; infra, sec 919; S. P. Junkins v. Simpson, 14 Me. 364; Voorhees v. Earl, 2 Hill, N. Y. 292. And see Brin-ley v. Tibbetts, 7 Greenl. 70; Barry v. Palmer, 19 Me. 303; Laurence v. Dale, 3 Johns. Ch. 23; Knight v. Houghtal-ling, 85 N. C. 17.

3 Coolidge v. Brigham, 1 Met. Mass. 550; Bishop v. Stewart, 13 Nev. 25; supra, sec 32; infra, sec 523.

4 Benj. on Sales, sec 452; Herrin v. Libby, 36 Me. 357; Miller v. Barber, 66 N. Y. 558; Weimer v. Clement, 37 Penn. St. 147; Foulk v. Eckart, 61 111. 318; Peck v. Brewer, 48 111. 55.

5 Supra, sec 211; White v. Garden, 10 C. B. 919; Moyce v. Newington, L. R. 4 Q. B. D. 32; Stevenson v. Newnham, 13 C. B. 285; Load v. Green, 15 M. & W. 216; Ditson v. Randall, 33 Me. 202; Titcomb p. Wood, 38 Me. 561; Cooper v. Newman, 45 N. H. 339; Rowley 0. Bigelow, 12 Pick. 307; Moody v. Blake, 117 Mass. 23; Dows v. Greene, 32 Barb. 490; Paddon v. Taylor, 44 N. Y. 371; Devoe v Brandt, 53 N. Y. 462; Barnard v. Campbell, 58 N. Y. 73; Sinclair v. Healey, 40 Penn. St. 417; Hall v. Hinks, 21 Md. 406; Williams v. Given, 6 Grat. 268; Old Dom.

St. Co. v. Burckhardt, 31 Grat. 664; Dean v. Yates, 22 Oh. St. 388; Jennings v. Gage, 13 111. 610; Chicago Dock Co. v. Foster, 48 111. 507; Dicker-son v, Evans, 84 111. 451; Hutchiman v. Watkins, 19 Iowa, 475; Gregory v. Schoenell, 55 Ind. 101; Kern v. Thur-ber, 57 Ga. 172; Nicol v. Crittenden, 55 Ga. 497; and other cases cited Benj. on Sales, 3d Am. ed. sec 433.

1 Per cur. in Kingsford v. Merry, 11 Ex. 577. Mr. Leake (2d ed. 398) cites further to this point, Pease v. Gloahec, L. R. 1 P. C. 219.

2 In Kingsford . Merry, 1 H. & N. 503, the ruling in 11 Ex. 577 was reversed on the ground that, while the above rule was correct, it did not apply to the facts in evidence. In Oakes v. Turquand, L. R. 2 H. L. 325, Kent v. Freehold Land Co., L. R. 3 Ch. 493, the principle in the text was applied to sales of shares in companies as against shareholders in conflict with creditors after an order for winding up of the company.

3 Leask v. Scott, L. R. 2 Q. B. D. 376; Stevens v. Brennan, 79 N. Y. 254; Shewmake v. Williams, 54 Ga. 206; see Barnard v. Campbell, 58 N. Y. 73.

4 Crocker v. Crocker, 31 N. Y. 507.

5 Ibid.