Effect of. Fraud, both at law and in equi ty, when sufficiently proved and ascertained, avoids a contract ab initio, whether the fraud be intended to operate against one of the contracting parties, or against third par ties, or against the public ; Ans. Contr. 162; 1 W. Blackst. 465; Dougl. 450; 3 Burr. 1909 ; 3 V. & B. 42; 1 Sch. & L. 209; see Feltz v. Walker, 49 Conn. 98; but the injured party may elect to allow the transaction to stand ; L. R. 2 H. L. 246 ; Lindsley v. Ferguson, 49 N. Y. 626; Wood v. Goff's Curator, 7 Bush (Ky.) 63.
The fraud of an agent by a misrepresenta tion which is embodied in the contract to which his agency relates, avoids the con tract. But the party committing the fraud cannot in any case himself avoid the con tract on the ground of the fraud; Chitty, Contr. 590, and cases cited. The 'party in jured may lose the right to avoid the con tract by lathes; Hathaway v. Noble, 55 N. H. 508. But no delay will constitute 'aches except that occurring after the discovery of the fraud ; 11 Cl. & F. 714; Michoud v. Girod, 4 How. (U. S.) 561, 11 L. Ed. 1076; Humph reys v. Mattoon, 43 Ia. 556; Martin v. Mar tin, 55 Ala. 560; Kraus v. Thompson, 30 Minn. 64, 14 N. W. 266, 44 Am. Rep. 182. The injured party repudiate the trans action io toto, if at all ; be may not adopt it in part and repudiate it in part ; Farmers' Bank v. Groves, 12 How. (U. S.) 51, 13 L. Ed. 889 ; 25 Beay. 594.
As to frauds in contracts and dealings the common law subjects the wrong-doer, in several instances, to an action on the case, such as actions for fraud and deceit in contracts on an express or implied war ranty of title or soundness, etc. But fraud gives no action in any case without dam age; 3 Term 56; and in matters of contract it is merely a defence ; it cannot in any case constitute a new contract ; 7 Ves. 211; Abbott v. Mackinley, 2 Miles (Pa.) 229. It is essentially ad honanenv 4 Term 337.
A person cannot recover for fraudulent representations where he did not rely upon them, but relied upon information from other sources and upon his own judgment ; Craig v. Hamilton, 118 Ind. 565, 21 N. E. 315 ; White v. Smith, 39 Kan. 752, 18 Pac. 931; Lucas v. Crippen, 76 Ia. 507, 41 N. W. 205 ; Moses v. Katzenberger, 84 Ala. 95, 4 South. 237 ; Runge v. Brown, 23 Neb. 817, 37 N. W. 660 ; Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246. Fraud must be clearly proved and it is proper so to instruct the jury ; Jones v. Lewis, 148 Pa. 234, 23 AtI. 985. There is no error in charging that fraud is never presumed, and must be shown by satisfactory proof ; Walker v. Collins, 59
Fed. 70, 8 C. C. A. 1.
A contracting party, who has been the vic tim of fraud, may either (1) apply to the court to have the contract cancelled, or (2) elect to confirm the contract and demand its completion or damages for non-completion, or •(3) bring an action for damages for deceit, and this even after he has lost his right to avoid the transaction by delaying too long.
It is no defense to say that the plaintiff could have found out the truth ; [1881] 20 Ch. D. 1; or that he was only partly induced by the falsehood ; 1 L. R. 4 H. L. 79.
In Criminal Law. Without the express provision of any statute, all deceitful prac tices in defrauding or endeavoring to de fraud another of his known right, by means of some artful device, contrary to the plain rules of common honesty, are condemned by the common law, and punishable according to the heinousness of the offence; Co. Litt. 3 b; Dy. 295 ; Hawk. Pl. Cr. c. 71.
In considering fraud in its criminal aspect, it is often difficult to determine whether facts in evidence constitute a fraud, or amount to a felony. It seems now to be agreed that if the property obtained, whether by means of a false token or a false pretence, be parted with absolutely by the owner, it is a fraud ; but if the possession only be parted with, and that possession be obtained by fraud, it will be felony ; Bacon, Abr. Fraud; 2 Leach 1066 ; 2 East, Pl. Cr. c. 673.
Of those frauds or cheats which, as being "levelled against the public justice of the kingdom," are punishable by indictment or information at the common law ; 2 East, Pl. Cr. c. 18, § 4, p. 821; the following are examples: Uttering a fictitious bank bill ; Com. v. Boynton, 2 Mass. 77 ; selling unwhole some provisions; 4 Bla. Corn. • 162 ; male praxis of a physician ; 1 Ld. Raym. 213 ; ren dering false accounts, and other frauds, by persons in official situations ; Rex v. Bern bridge, cited 2 East 136 ; 5 Mod. 179 ; 2 Campb. 269 ; 3 Chitty, Cr. Law 6661 fabrica tion of news tending to the public injury ; Stark. Lib. 546 ; and per Scroggs, C. J., Rex v. Harris, Guildhall, 1680 ; cheats by means of false weights and measures ; 2 East, Pl. Cr. c.18, § 3, p. 820 ; and generally, the fraud ulent obtaining the property of another by any deceitful or illegal practice or token (short of felony) which affects or may affect the public ; 2 East, Pl. Cr. c. 18, § 2, p. 818 ; as with the common cases of obtaining prop erty by false pretences. See DECEIT; MIS REPRESENTATION.