The right of one who has Buffered damage by fraudulent representations to bring an action for deceit needs no citations of authorities. In order to maintain such an action where benefit has been received by the plaintiff, it is not necessary that buc! benefit be returned. The defrauded party may retain this benefit and sue for the damages he has suffered.15 Nor neec demand be made before suit11 It is of course essential to the right of action that some damage shall have been suffered, and it has been urged that where a contract induced by fraud is stil wholly executory on both sides at the time the fraud is discovered, no damage is Buffered by the defrauded party since the fraud furnishes a complete defense to the enforcement of the contract. According to this view, therefore, performance of the contract by the defrauded party under these circumstances is an unnecessary act, and no damages can be recovered.17 If this doctrine is logically carried out, however, it would be necessary also to hold that if the contract though not wholly executory is capable of rescission, and if thereby the parties can be restored to their former situation, no recovery can be had in deceit, because no damage has been suffered. It seems more accurate, however, to hold the damage is caused by the original transaction. Even if this is merely an executory contract, the contract is not void, and the result of the fraud is the existence of a contract to which the defrauded person is a party. Moreover, as has been previously shown,18 in most jurisdictions recovery is allowed on false representations on the basis of warranty; that is, the plaintiff recovers, not the damages caused by being induced to enter into the transaction, but the damages he suffers by the failure to make good the representations. Accordingly it is generally held that one who has been defrauded may, though the contract is executory, affirm the contract and perform it without forfeiting his right to recover damages for deceit. Certainly where the contract is even partially executed this result is clearly sound.19 The right to damage may be asserted by the defrauded person not only as plaintiff but as defendant. By recoupment, or counterclaim, he is allowed to deduct his damages when sued for failure to perform his obligations under the bargain.20
13 Supra, Sec. 1392.
14 See infra, 1526.
15 Binghampton Trust Co. v. Auten, 68 Ark. 204, 209, 67 S. W. 936, 82 Am. St. Rep. 295; Herfort v. Cramer, 7 Colo. 483; Nysewander v. Lowman, 124 Ind. 684, 24 N. E. 355; Ligon v. Minton (Ky.), 125 S. W. 304; Andrews v. Jackson, 168 Mass. 266, 47 N. E. 412, 37 L. R. A. 402, 60 Am. St. Rep. 390; Elliott v. Brady, 192 N. Y. 221, 86 N. E. 69; Smith v. Salomon, 172 N. Y. 8. 515; McCabe v. Kelleher (Oreg.), 175 Pac. 608. See also cases cited in the following note. A de frauded seller may prove in the buyer's bankruptcy for the price, and there after sue him for deceit. Taleott v Friend, 179 Fed. 676, 103 C. C. A. 80 43 L. R. A. (N. S.) 649.
16 Morrow Shoe Mfg. Co. v. Nct England Shoe Co., 57 Fed. 685, 692 18 U. 8. App. 256, 616, 24 L. R. A 417, 6 C. C. A. 60S; Farwell v. Han chett, 120 111. 573, 577, 11 N. E. 875 Parker v. Simpson, 180 Mass. 334 62 N. E. 401.
17 Thomas v. Birch (Cal.), 173 Pac. 1102; St. John v. Hendrickson, 81 Ind. 350; Thompson v. Libby, 36 Minn. 287, 31 N. W. 52; McCabe v. Kelleher (Oreg.), 175 Pac. 608.
18 Supra, Sec. 1392.
19 Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546; Williams v. McFadden, 23 Fla. 143, 1 So. 618, 11 Am. St. Rep. 345; Dowagiac Mfg. Co. v. Gibson, 73 Iowa, 525, 35 N. W. 603, 5 Am. St. Rep. 607; Haven v. Neal, 43 Minn. 315, 45 N. W. 612; Nauman v. Oberle, 90 Mo. 666, 3 S. W. 380; Whitney v. Allaire, 4 Denio, 554, 1 N Y. 305; Allaire v. Whitney, 1. Hill, 484; Grabenheimer v. Blum,
63 Tex. 369; Mallory v. Leach, 35 Vt. 156, 82 Am. Dec. 625. In Cain v. Dickenson, 60 N. H. 371, the defrauded person when performing expressly reserved his right to sue for the fraud.
20 Wilson v. New United States Cattle Ranch Co., 73 Fed. 994, 36 U. S. App. 634, 20 C. C. A. 244; Lilley v. Randall, 3 Colo. 298; Sharp v. Ponce, 76 Me. 350; Cent v. Elisor, 41 Md. 24; Perley v. Balch, 23 Pick. 283, 34 Am. Dec. 56; Sanborn v. Osgood, 16 N. H. 112; Lukens v. Aiken, 174 Pa. St. 152, 34 Atl. 575. See also in regard to similar procedure for breach of warranty, supra. Sec.Sec. 1391,1464.
It is commonly said that the right to recover damages may be waived. Doubtless election to rescind the transaction operates as a bar to the right to recover damages.21 And a right of action for deceit may be settled in the same way as any other right of action - by a release under seal, or by a compromise or accord and satisfaction accompanied by sufficient consideration. In most if not all the cases relied on as showing the possibility of waiving a right to sue for fraud, the elements of accord and satisfaction will be found. That an assent or agreement or rescission without consideration or formal release will discharge a right of action for deceit already accrued cannot be admitted.22