Though the cases are in some conflict, it seems clear on principle that it is an election to affirm the contract to bring an action for deceit. Such an action can be based only on the assumption that the plaintiff has been induced to enter into a transaction to his damage. This is inconsistent with an assertion of the nullity of the transaction.45 It has sometimes been had also elapsed; and in York Buildings Co. v. Mackenzie, 3 Paton App. Cas. 378, eleven years had elapsed, in Gil-lett v. Peppercorne, 3 Beav. 78, fourteen years had elapsed, and in Oliver v. Court, 8 Price, 127, fifteen years had elapsed before the plaintiffs respectively commenced their proceedings to set aside the transaction complained of. In cases like the present the right of the party defrauded is not affected by the mere lapse of time so long as he remains in ignorance of the fraud: see per Lord Westbury in Rolfe v. Gregory (1865), 4 D. J. & S. 576, 579.
43 Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64, 73; Clough e. London, etc., Ry. Co., L. R. 7 Ex. 26; Hammond v. Pennock, 61 N. Y. 145, 155; Potter v. Taggart, 54 Wis. 395, 11 N. W. 678.
44 Wright v. Zeigler, 70 Ga. 501; Kearney Milling Co. v. Union Pacific Ry. Co., 97 Iowa, 719, 66 N. W. 1059, 59 Am. St. Rep. 434; Farwell v. Myers, 59 Mich. 179, 26 N. W. 328; Powers v. Benedict, 88 N. Y. 605.
45 In making an order after breach of a contract, Jessel, M. R., said: "The plaintiffs could not at the same time obtain an order to have the agreement rescinded and claim damages against the defendant for breach of the agreement." Henty v. Schroder, 12 Ch. D. 666, 667. The following cases seem rather to support the view that it is not necessarily a conclusive affirmance of the contract to bring an action for deceit: Emma Silver Mining Co. v. Emma Silver Mining Co. of New York, 7 Fed. 401; Cohoon v. Fisher, 146 Ind. 583,44 N. E. 664, 45 N. E. 787,36 L. R. A. 193; Gutheil v. Goodrich, 160 Ind. 92, 94; Kimball v. Cunningham, 4 Mass. 502, 505, 3 Am. Dec. 230; Percy v. Benedict, 15 Hun, 282. See also Williamson v. Hannan, 200 Mich. 658, 166 N. W. 829; Russell v. Wilber, 150 N. Y. App. D. 52, 134 N. Y. S. 463 (cf. Strong v. Strong, 102 N. Y. 69, 5 N. E. 799, and earlier New York decisions there cited). But the statement of Sanborn, J., in Stuart v. Hay-den, 72 F d 402, 411, 36 U. S. App. 462, 18 C. C. A. 618, affd. in 169 U. S. 1, 42 L. Ed. 639, 18 S. Ct. 274, is unanswerable: "One who is induced to make a sale or trade by the deceit of his vendee has a choice of two remedies upon his discovery of the fraud. He may affirm the contract, and sue for his damages; or he may rescind it, and sue for the property he has sold. The former remedy counts upon and affirms the validity of the transaction; the latter repudiates the transaction, and counts upon its invalidity. The two remedies are utterly inconsistent, and the choice of one rejects the other, because a sale cannot be valid and void at the same time." In Nash v. Minnesota Title & Trust Co., 163 Mass.
held that if special damages have been suffered, an action based on deceit may be maintained in spite of a prior rescission.46 Where all that the injured party seeks in the way of rescission is to refuse performance or further performance on his own part, this seems admissible.47 If a man is induced by fraud to enter into a contract with A, instead of with B, and the fraud is discovered only after it is too late to make a similar contract, the defrauded person may say: "I should hot be compelled to perform or to continue to perform the contract with A. I wish to rescind; but his fraud has done me an injury in spite of the rescission since I cannot now make a contract with B." But if instead of such merely negative rescission, the injured party seeks positive relief by way of restitution, this seems to exclude a right to recover damages. To meet a practical difficulty, it has been suggested that where a defrauded seller has reclaimed such part of the goods as he can reach, he should be allowed to recover damages for the remainder in an action of deceit, and some decisions, at least, allow this.4* But the only theory upon which part of the goods can be reclaimed is that the whole contract is-rescinded. If the whole contract is rescinded the seller's remedy for goods which he cannot reach is not an action for deceit but for conversion, or, on principles of quasi-contract, for the value of the goods.49 Though it is true that full redress for the injury cannot always be obtained by rescission, it must be remembered that it is only an alternative remedy, and that in an action based on deceit, the plaintiff if he so elects may always recover full 'damages. An analogous question in regard to remedies for breach of warranty has been previously considered.50
574, 40 N. E. 1039, 28 L. R. A, (N. S.) 753, 47 Am. St. Rep. 489, rescission allowed against one party to a fraud, without satisfaction of judgment wtm held no bar to an action of deceit against another party. In Cohoon v. Fisher, 146 Ind. 583, a distinction was attempted between an action begun for rescission and one begun for deceit. It was suggested that in the latter case there was perhaps a conclusive election to affirm the contract, whereas in the former case there was no conclusive election to set it aside. The distinction seems untenable. 46 See cases in the following two notes.
47 Warren v. Cole, 15 Mich. 285; Moran p. Tucker, 40 R. I. 485, 101
Atl. 327. See also Atlanta, etc. R. v. Hodnett, 29 Ga. 461.
48 See Lenox v. Fuller, 39 Mich. 268; American Pure Food Company v. Elliott, 151 N. C. 393, 396, 66 S. E. 451, 31 L. R. A. (N. S.) 910.
49 Farwell v, Myers, 64 Mich. 234, 31 N. W. 128; Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201, 10 Am. St. Rep. 377; Powers v. Benedict, 88 N. Y. 605. See also Re Hirechman, 104 Fed. 69; Singer v. Schilling, 74 Wis. 360, 43 N. W. 101. The seller cannot sue on the contract for the agreed price of the remainder of the goods. Reed v. McConnell, 133 N. Y. 425, 435,31 N. E. 22; American Woolen Co. v. Samuelsohn, 226 N. Y. 61, 123 N. E. 154.