Schmidt v. Mesmer

Citations

• 116 Cal. 267
• 48 P. 54
• 1897 Cal. LEXIS 536

Syllabus

<p>Fraud—Election of Remedy—Rescission—Action for Damages—Limitations of Right to Damages—Arm’s Length—Compliance with Contract — Favors — Conditions—New Engagement—Waiver.—A party to a contract may elect to rescind the contract for fraudulent representations promptly upon discovering the fraud, and restoring the other party, as near as may be, to his former condition, or to affirm the contract and sue to recover damages for the deceit, without warning the other party that he intends at some future time to charge him with fraud; but the rule which relieves a party, when he elects to sue for damages, from the acts required of him when he elects to rescind, has the just limitations that, after knowledge of the fraud and election to sue for damages, he must stand toward the other party at arm’s length, must comply with the terms of the contract on his part, must not ask favors of the other party, or offer to perform the contract on conditions which he has no right to exact, and must not make any new agreement or engagement respecting it; otherwise he waives the alleged fraud.</p> <p>Id.—Lease of Hotel—False Representation as to Monthly Income —Waiver of Action for Damages—Failure to Complain—Favor Asked—Note for Rent—Nonpayment.—A cause of action for damages for fraud of the defendant in misrepresenting the amount of income received monthly from a hotel leased by the defendant to the plaintiff, is waived where it appears that the defendant occupied the premises . for about seventeen months after knowledge of the facts constituting the fraud, without making any complaint thereof or giving any intimation that any false representations had been made until suit was brought, and meanwhile had asked for a reduction of rent, and was permitted to, and did give, a note for unpaid rent, which he failed to pay at maturity.</p>