The

Burns v. Mahannah, 39 Kan. 87 (17 Pac. Rep. 319); Elerick v. Reid, 54 Kan. 579 (38 Pac. Rep. 814). But in Michigan it is held that an action for deceit in the sale of real estate may be maintained where the sale was procured by fraudulent representations as to the price he paid for the land made by the vendor, upon whose veracity the vendee, who was ignorant of real estate values in the locality, relied after due inquiry as to his reputation, such representations being made by such vendor showing a false receipt of the purchase price paid by him, issued to him by his vendor; and the latter who assists in the perpetration of the fraud by issuing such receipt will be held responsible for the consequences, where the party defrauded relied upon such receipt. Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321 (69 N. W. Rep. 722). court say: "It is also urged that an action for deceit in the sale of real estate does not lie for the fraudulent misrepresentation as to the price paid. In support of this the learned counsel cite Holbrook v. Connor, 60 Me. 578 (11 Am. Rep. 212); Medbury v. Watson, 6 Metc. (Mass.) 259 (39 Am. Dec. 726); Mooney v. Miller, 102 Mass. 220. In Medbury v. Watson the question now presented was not in issue, and the language of the court upon which the counsel rely was not necessary to a decision of the case. In Mooney v. Miller the representations relied upon referred to the quantity of wood and hay that could be cut from the land, the possibility of acquiring adjoining lands with buildings thereon belonging to third persons, and to the number of acres in the lot, the boundaries of which were truly pointed out. It was properly held that the action would not lie. The case of Holbrook v. Connor appears to sustain the defendants' contention. The court was divided in opinion. The authorities are quite fully referred to and discussed in the majority and minority opinions. We cannot accede to the doctrine of that case as applied to this."

Sec. 125. Fraud-Broken promises-Statements of opinion or intention. A promise to do something in the future, though made by one party as a representation to induce another to enter into a contract, will not amount to a

fraud in a legal sense though the promise subsequently and without excuse be broken and unfulfilled. Harrington v. Rutherford, 38 Fla. 321 (21 So. Rep. 283). Citing, Perkins v. Lougee, 6 Neb. 220; Love v. Teter, 24 W. Va. 741; Fouty v. Fouty, 43 Ind. 433; Burt v. Bowles, 69 Ind. 1; Farrar v. Bridges, 3 Humph. 565; Long v. Woodman, 58 Me. 49; Grove v. Hodges, 55 Pa. St. 501; Railway Co. v. Tittering ton, 81 Tex. 218 (19 S. W. Rep. 472; 31 Am. St. Rep. 39); Feret v. Hill, 15 C. B. 207. As a general rule, the mere expression of an opinion, which is understood to be only an opinion, does not render a person expressing it liable for fraud. But where the statements are as to value or quality, and are made by a person knowing them to be untrue, with an intent to deceive and mislead the one to whom they are made, and he is thus induced to forbear making inquiries which he otherwise would, they may amount to an affirmation of fact rendering him liable therefor. In such a case, whether a representation is an expression of an opinion or an affirmation of a fact is a question for the jury. The rule that no one is liable for an expression of an opinion is applicable only when the opinion stands by itself as a distinct thing. If it is given in bad faith, with knowledge of its untruthfulness, to defraud others, the person making it is liable, especially when it is as to a fact affecting quality or value, and is peculiarly within the knowledge of the person making it. People v. Peckens, 153 N. Y. 576 (47 N. E. Rep. 883). A contract will not be rescinded on account of false and fraudulent representations as to one's intentions. Farris v. Strong, 24 Colo. 107 (48 Pac. Rep. 963). False representations as to proposed improvements will not afford ground for the rescission of a contract. Lambert v. Crystal Spring Land Co., Va. (27 S. E. Rep. 462); Slothower v. Oak Ridge Land Co., Va. (27 S. E. Rep. 466); Ansley v. Bank of Piedmont, 113 Ala. 467 (21 So. Rep. 59; 59 Am. St. Rep. 122). Statements of the opinion of a vendor as to the future growth of a town and of his intentions as to certain improvements, which subsequently prove false, do not furnish a sufficient defense to a purchase money mortgage given by a vendee, where there was no fiduciary relation between the parties and the purchaser had ample opportunity and ability to determine the

value of the property.

West Seattle L. Imp. Co. v. Herren,

16 Wash. 665 (48 Pac. Rep. 341).

See. 126. Relief from fraud-Waiver of right to— Election of remedies. A vendor acquainted with all the facts, who accepts a part performance of the contract, cannot afterward assail it for fraud on the part of the vendee. McWhirter v. Crawford, 104 Ia.550 (72 N. W. Rep. 505). A lessee waives his right to recover damages from his lessor on account of fraud in procuring a lease, where, after he has acquired a knowledge of all the facts tending to affect the contract with fraud he makes new agreements and engagements with the lessor respecting the property. Schmidt v. Mesmer, 116 Cal. 267 (48 Pac. Rep. 54). A vendor whose contract of sale has been procured by fraud has two remedies. He may disaffirm the contract and proceed in equity to rescind it by restoring or tendering to the vendee what he has paid, and, in case the fraud and other facts are established, he will be entitled to a decree that the defendant reconvey the land; or he may proceed in affirmance of the sale, and recover his damages at law for the deceit. He may elect either remedy but he cannot pursue both; nor can he blend the two remedies together, and affirm in part and rescind in part. Yoemans v. Bell, 151 N. Y. 230 (45 N. E. Rep. 552).

Sec. 127. Action for fraud-Measure of damages. In an action for fraud and deceit in the sale or exchange of real estate, the measure of damages is the difference between the actual value of the land as it would have been if as represented, and as it actually was. Hecht v. Metzler, 14 Utah 408 (48 Pac. Rep. 37; 60 Am. St. Rep. 906). Citing, Stiles v. White, 11 Metc. (Mass.) 356 (45 Am. Dec. 214); Drew v. Beall, 62 Ill. 164; Matlock v. Reppy, 47 Ark. 148 (14 S. W. Rep. 546); Griffing v. Biller, (Sup.) 21 N. Y. Supp. 407; Lynch v. Trust Co., 18 Fed. 486; Antle v. Sexton, 137 Ill. 410 (27 N. E. Rep. 691); Wright v. Roach, 57 Me. 600; Herefort v. Cramer, 7 Colo. 483 (4 Pac. Rep. 896); 3 Sedg. Meas. Dam. §§ 1027-1029; Page v. Wells, 37 Mich. 415; Vail v. Reynolds, 118 N. Y. 237 (23 N. E. Rep. 301); Stevens v. Allen, 51 Kan. 144 (32 Pac. Rep. 922); Krumm v.

Beach, 96 N. Y. 399. Where a vendor has been induced by fraudulent representations to receive as a part of the consideration for his land depreciated shares of stock in a corporation, at par value, his measure of damages is the difference between the actual value of such stock and its par value at the date of the sale. Yeomans v. Bell, 151 N. Y. 230 (45 N. E. Rep.

552).

Sec. 128. Rescission of contracts-Particular cases. It is held sufficient proof of fraud to rescind a mortgage to show that the mortgagee has broken his promises made as an inducement to its execution. Krouskop v. Krouskop, 95 Wis. 296 (70 N. W. Rep. 475). A conveyance which passes a valid title, cannot be rescinded because the grantor fails to give the grantee possession at the time agreed in the deed. Topping v. Parish, 96 Wis. 378 (71 N. W. Rep. 367). A vendor's failure to give possession until a few days after the time stipulated, occasioned by the fault of his tenant, will not authorize a rescission, no subsequent injury having resulted therefrom. Armstrong v. Breen, 101 Ia. 9 (69 N. W. Rep. 1125). Where, on account of a mutual mistake, a contract for the sale of trees standing on a certain tract of land, misdescribes the land, the vendee is not entitled to a rescission of the entire contract, but to an allowance for the trees on that part of the land which was omitted. Hamilton v. McAllister, 49 S. C. 230 (27 S. E. Rep. 63). Where a person holding a limited optional contract for the sale of a tract of land, is prevented from making sale thereof by reason of a cloud on the title or a deficiency in the quantity not known or taken into consideration at the time of the execution thereof, such person is entitled to a rescission of such contract. Morrison v. Waggy, 43 W. Va. 405 (27 S. E. Rep. 314). Particular cases in which the right to rescind was held to exist, on account of the omission of the covenant in a deed, Harris v. Calmes, 100 Ky. 272 (38 S. W. Rep. 6); on account of grantee's failure to perform his covenant to support the grantor, Reoch v. Reoch, 98 Wis. 201 (73 N. W. Rep. 989); on account of false representations as to the size of a town in which lots sold are situated. Grosh v. Ivanhoe Land & Imp. Co., 95 Va. 161 (27 S. E. Rep. 841). For particular cases in which the right to

rescind was denied, see Clark v. Shirk, 170 Ill. 143 (48 N. E. Rep. 182); Garbes v. Roberts, 98 Wis. 173 (73 N. W. Rep. 995); Armstrong v. Breen, 101 Ia. 9 (69 N. W. Rep. 1125).

Sec. 129. Rescission of contracts-Placing parties" in statu quo. The vendee in possession with a bond for title, is not entitled to a rescission on his cross bill, in an action against him for purchase money, on account of fraudulent representations, where he does not offer to place the vendor in statu quo. Allgood v. Bank of Piedmont, 115 Ala. 418 (22 So. Rep. 35). A purchaser of land cannot rescind a contract where he occupied the premises, defaulted in the payment, and defended a foreclosure of a purchase money mortgage without making any offer to put the vendor in statu quo. National Bank v. Levanseler, 115 Mich. 372 (73 N. W. Rep. 399). Cal. Civil Code, §§ 3406-3408, construed and applied -duty as to restoration of consideration-sufficiency of offer to restore. Kelley v. Owens, 120 Cal. 502 (47 Pac. Rep. 369).

Sec. 130. Rescission of contracts-Loss or waiver of right to rescind. The right to rescind a contract on account of fraud may be lost by an unreasonable and unexplained delay. Cowen v. Harrington, Idaho (41 Pac. Rep. 1059); Leiker v. Henson, Tenn. (41 S. W. Rep. 862). The vendee having a cause for rescission, who fails to assert his right in an action brought against him to enforce a vendor's lien, will be held to have waived his right to a rescission. American Land & Imp. Co. v. Crawford, Ky., (40 S. W. Rep. 672). Where one acquainted with the causes for a rescission, stands by the contract for several years awaiting the result of a speculation, he will be held to have lost his right to rescind. Slothower v. Oak Ridge Land Co., Va. (27 S. E. Rep. 466); Ansley v. Bank of Piedmont, 113 Ala. 467 (21 So. Rep. 59; 59 Am. St. Rep. 122); Allgood v. Bank of Piedmont, 115 Ala. 418 (22 So. Rep. 35); Coleman v. First Nat. Bank, 115 Ala. 307 (22 So. Rep. 84); Hatcher v. Hatcher, 139 Mɔ. 614 (39 S. W. Rep. 479). Delay by such a one until the rights of innocent third parties have intervened, or the position even of

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