In the converse case, where the buyer seeks to rescind a transfer of title to him, whether for fraud,80 mistake,81 or breach of warranty,82 the same rule again prevails. The buyer may, if he chooses, recover the price that he has paid, and is not obliged to sue for the difference in value between the goods which he has acquired and the price which he paid. He recovers the price in full if he elects to do so. This election necessarily operates as a transfer of the title back to the seller.83 The doctrine which permits one whose goods have been converted to " waive the tort" and sue for the value of the goods, or the price for which the converter has sold them, is another case where a plaintiff transfers title by his own action, without any assent of the defendant.84 Indeed, even where trover is brought for the conversion, it is impossible to justify the existing rule of damages which gives the injured party the full value of the goods except on the theory that the title to the goods is transferred to the defendant. If the plaintiff were regarded as continuing the owner of the goods, he should recover damages equal in amount only to the loss which be suffered by the deprivation of possession of the property. If the goods were destroyed, of course this would equal their value; but if they still remained in existence, it might well be a comparatively small amount.85
75Smith o. Ryan, 191 N. Y. 462, 84 N. EL 402,19 L. R. A. (N. S.) 461,123 Am. 8t Rep. 600. See, however, as to infancy, supra, Sec. 234.
76 Badger v. Phinney, 15 Mass. 350, 8 Am. Dec. 105.
77 Martindale v. Smith, 1 Q. B. 389;
Page v. Gowasjee Eduljee, L. R. 1 P. C. 127.
78 Williston, Salee, Sec. 544.
79 Id., Sec.Sec. 545, 555.
80 See infra, Sec.1525.
81 See infra, Sec. 1570.