While generally the defrauded party must, before he can maintain an action, either return or offer to return what he has received under a contract before he may rescind it for fraud,31 there is an exception to this rule where the defrauded party is entitled, in any event, to all that he has received. In such a case a return or offer to return is not a condition precedent to the bringing of an action. It is sufficient if the sum retained is taken into account and allowed in the judgment.32 "In an action in equity, brought for the rescission of a contract, it is sufficient if the plaintiff offer in his complaint to return what he has received, and make a tender of it on the trial."33
"The burden of charging as well as proving fraud is on the party alleging it, and facts constituting the alleged fraud must set forth in order to entitle a party to introduce evidence of it. Mere conclusions of law are not enough."34 "To sustain a cause of action to recover damages for fraud, the plaintiff must allege the fraud and resulting damage, but when fraud and damage are both alleged there is a cause of action."35 "Fraud gives a cause of action for the damages which necessarily result from the wrong, and these may be recovered without an averment of special damage. Such damages, however, as are the material but not the necessary result of the injury, are special and must be alleged."36
The principles which govern an action for fraud and deceit are the same whether the fraud is alleged to have originated in a conspiracy, or to have been solely committed by a defendant without aid or cooperation.
31 Noyes v. Patrick, 58 N. H. 618 (1879).
32 Douglass v. Scott, 130 App. Div. 322 (N. Y. 1909); Bebout v. Bodle, 38 Ohio St. 500 (1882).
33 Cox v. Stillman, 132 App. Div. 437 (N. Y. 1909). As to the various remedies at law and in equity, see Sec. 313-316 supra.
34 Eppley v. Kennedy, 131 App. Div. 4 (N. Y. 1909).
35 Isman v. Loring, 130 App. Div. 847 (N. Y. 1909).
36 Id., 848.
Whenever it becomes necessary to prove a conspiracy in order to connect the defendant with the fraud, no averment of the conspiracy need be made in the pleadings to entitle it to be proved.37 An allegation of conspiracy need not be proved but may be wholly disregarded if plaintiff can show otherwise the guilty participation of any defendant.38
Where a conspiracy is established, the acts, admissions and declarations of any one of the conspirators, done and made during the criminal enterprise, in pursuance and furtherance thereof and in reference thereto may be proved.39 "Such evidence is received on the theory that the conspirators have jointly assumed to themselves as a body, the attributes of individuality, so far as regards the common design, thus rendering whatever is done or said by any one in furtherance of that design, a part of the res gestae, and therefore the act of all."40