(r) Crocker v. Lewis, 3 Sumner, 8. In this case it was held, that a representation made by A to B, and communicated by B to C, who, relying thereupon, contracts with A, by which he is defrauded, shall have the same effect to avoid the contract as if made directly by A to C. See also Bowers v. Johnson, 10 Smedes & M. 169; Hunt v. Moore, 2 Barr, 105. So fraudulent representations by A to B concerning another's credit or solvency, if communicated to C, who, relying upon them, trusts such third person, may give C a right of action against A, as much as if the communication had been addressed to C in person. For the foundation of such an action is not privity of contract; but the author of the fraudulent misrepresentations is guilty of a tort, and is answerable for the damage suffered by any one from such tortious contract. Gerhard v. Bates, 2 Ellis & B. 476, 20 Eng. L. & Eq. 129; Pilmore v. Hood, 5 Bine. N. C. 97. In this last case, the defendant being about to sell a public-house, falsely represented to B, who had agreed to purchase it, that the receipts were £180 a month; B having, to the knowledge of defendant, communicated this representation to plaintiff, who became the purchaser instead of B, held, that an action lay against defendant, at the suit of plaintiff. See also Weatherford v. Fishback, 3 Scam. 170. But in McCracken v. West, 17 Ohio, 16, it was held, that if A write a letter to B, desiring him to introduce the bearer to such merchants as he may desire, and describing him as a man of property, and the bearer do not deliver the letter to B, but use it to obtain credit with C, C cannot maintain an action for deceit against A, though the represen' tations in the letter are untrue.

(s) See Warner v. Daniels, 1 Woodb. & M. 90; Harris v. Delamar, 3 Ired. Eq. 219; Bowers v. Johnson, 10 Smedes & M173; Lawrence v. Hand, 23 Miss. 105.

(t) Fitzsimmons v. Joslin, 21 Vt. 129. In this case Redfield, J., ably reviews the decided cases, and pointedly condemns the cases of Cornfoot v. Fowke, 6 M. & W. 358; and Langridge v. Levy, 2 M. & W. 519, 4 id. 336, as unsound. See also Fuller v. Wilson, 3 Q. B. 58; and Cross v. Sacket, 2 Bosw. 617. And see ante, vol. i. pp. * 72, * 73, and notes.

to rescind a contract, and exercises that right, he must restore the other party to the same condition that he would have been in if the contract had not been made. (u) 1 But where the right to rescind springs from discovered fraud, there is an exception to the rule: the defrauded party does not lose his right to rescind because the contract has been partly executed, and the parties cannot be fully restored to their former position; (v) 2 but he

(u) Burton v. Stewart, 3 Wend. 236; Thayer v. Turner, 8 Met. 550; Kimball v, Cunningham, 4 Mass. 502; Perley v. Balch, 23 Pick. 283. See also ante, p.*679, n. (a). But in Stevens v. Austin, 1 Met. 557, where B received the promissory note, etc., of A, for goods which A fraudulently obtained of him and sold to C, who had knowledge of the fraud; it was held, that B might maintain an action of trover for the goods against C, without restoring the note to A. And Shaw, C. J., said: "The question is whether the plaintiff was bound to tender back the note and money he had received before he could bring his action. We think he was not. Not to the defendant; for the plaintiff had received nothing of him. Nor could the defendant raise the question, whether the plaintiff had made restoration to Foster or not. It was res inter alios, with which the plaintiff had no concern, and was wholly irrelative to the issue between the parties." Generally, an offer to return the property received is as effectual as actually returning it. See Howard v. Cadwalader, 5 Blackf. 225; Newell v. Turner, 9 Porter, 420; Barnett v. Stanton, 2 Ala. 181. But see Carter v. Walker, 2 Rich. 40. In Bacon v. Brown, 4 Bibb, 91, it was held, that in an action for damages for deceit in a sale of personal property, it was not necessary to return, or offer to return, the property.

Aliter, if the buyer disaffirms the contract and sues for the price paid.

(v) Thus, where a vendor received, in part payment for goods, the note of a third person, and for the other part an order from the vendee on another person, which order was duly paid, it was held, that the vendor having taken the note upon the false and fraudulent representations by the vendee that the maker was solvent, might return the note to the vendee, ana maintain assumpsit for the balance of the amount of the goods sold above the order, without returning the order also; and that the defendant was not entitled to be placed entirely in statu quo. Martin v. Roberts, 5 Cush. 126. Had the vendor sought by replevin to recover all the articles sold in specie, perhaps he would have been obliged to return all the consideration received. In Frost v. Lowry, 15 Ohio, 200, it was held, that if A obtains goods of B by false pretences, and gives therefor an accepted draft upon C, an accommodation acceptor, it is not necessary for B to return the draft to A, in order to rescind the sale, and recover back the goods. And so, if a person effect a compromise of his debts, by fraudulent representations, and procure a discharge of the same by paying a percentage thereon, and an action be brought to recover the balance, on the ground of fraud, it is not necessary, as preliminary to the right of must rescind as soon as circumstances permit, * and must not go on with the contract after the discovery of the fraud, so as to increase the injury necessarily caused to the fraudulent party by the rescission. (w)1 In other words, if he rescinds on the ground of fraud, he must do so at once on discovering the fraud; (x) for he is not bound to rescind, and any * delay, especially if it be injurious to the other party, would be regarded as a waiver of his right. Cases often say that fraud makes a contract absolutely void, (y) but by this it cannot be meant that the innocent party cannot waive the fraud, and insist upon the contract. And such a waiver would be inferred from his continuing to treat as his own the property which came to him by reason of the fraud. (z) The mere lapse of time, if it be considerable, recovery, that the plaintiff repay, or offer to repay, the percentage received. The doctrine of the rescission of contracts does not apply to such a case. Pierce v. Wood, 3 Foster, 519.