Sec. 309. Waiver Of The Fraud (P. 318)

It is possible that, after having been induced to purchase by fraud and deceit, a person not only may elect to retain the property, but also to waive his right of action for damages.1

"The mefe fact, however, of affirming or ratifying the contract by deciding to retain its fruits, as distinguished from approving of the fraud and deceit and waiving any right to redress on account thereof is insufficient to show a waiver of the cause of action for damages."2

Sec. 310. What Constitutes Waiver Of Fraud (P. 319)

If a person, induced by fraud to purchase and agree to pay for real estate, subsequently, with full knowledge of the facts, treats it as his own and authorizes his vendor to act as agent for the sale thereof, he thereby ratifies the transaction and will be remitted to his action for damages.3

Sec. 317. Offer To Restore (P. 324)

"In contracts of sale which have been fully executed on the part of the vendor by the delivery or conveyance of the thing sold, no fraud on his part in making the contract can operate as a complete bar to an action for the price, unless the thing sold was absolutely worthless, or the vendee has returned or reconvened the property on the discovery of the fraud. When sued for the price, the vendee may, in general, recoup damages; but while he retains the property he cannot treat the contract as wholly void and refuse to pay anything. By retaining the property, he affirms the validity of the contract, and can be entitled to nothing more than the damages which he has sustained by reason of the fraud."4

1Potts v. Lambie, 138 App. Div. 144; 122 N. Y. Suppl. 935 (1910); Cooley on Torts (3d Ed.) 965; Prvor v." Foster, 130 N. Y. 171; People v. Stephens, 71 N. Y. 527; St. John v. Hendrickson, 81 Ind. 350. See also Cain v. Dickenson, 60 N. H. 37l; New York Land Improvement Co. v. Chapman, 118 N. Y. 288; Barr v. N. Y. L. E. & W. R. R. Co., 125 N. Y. 263.

2Potts v. Lambie, supra.

3 Syllabus by the court in Hammond v. Patterson, 123 N. W. (Neb.) 304 (1909).

4Van Epps v. Harrison, 5 Hill (N. Y.) 63 (1843).

Sec. 319. Pleading Fraud Committed By More Than One (P. 324)

"The gist of the action attempted to be pleaded is fraud. The charge of conspiracy is only important to connect all of the defendants with the transaction and to charge each with the acts and declarations of the others."5

5 Lee v. Brown, 139 App. Div. 669; 124 N. Y. Suppl. 204 (1910).