Armstrong v. Tufts, Van Alstyne & Roberts

Whether the plaintiffs’ retaining the notes after they discovered the fraud, was an election to abide by the contract, and a waiver of their right to rescind, must depend upon circumstances. If they had negotiated them or attempted to enforce the payment of them, it might well be questioned whether they had not concluded themselves and waived the tort. But the mere fact of retaining possession of the notes, unaccompanied by any other act showing an election, and especially when attended by other circumstances, clearly showing that the plaintiffs intended to waive the contract, would not conclude the plaintiffs against bringing their action in the case. It was very common, where a party sought to recover on the original cause of action, to produce on the trial the notes given, and cancel them there, and that had always been held sufficient. It would be giving the prepetrator of a fraud an undue advantage, if he had in all cases, *369the power of involving his victim in the difficulty, and sometimes the impracticability of finding him and tendering him back his void and worthless securities. It would be enough to produce and cancel them on the trial, if in other regards the plaintiff had already signified his election to waive the contract and go for the tort.

Motion denied. Verdict for plaintiffs, $750.

[This case was affirmed in the Supreme Court. 6 Barb. R. 432.]