The times. [volume] (Richmond, Va.) 1890-1903, 1898-06-19

tlnue for years. and require performance
OF many acts-a continuing duty as long
as the wife might live. There Is nothing
10 indicate that devise 10 son should re-
main ia state of contingency during tna
wears he might have TO support his
mother. and without an express direction
or plain Implication 10 would DE uured-
sonablo % believe bee so intended lie
survived his wife q year and made no
change in his win, which also required
the son 20 support his two sisters Whlo
single-an obligation that might terml-
nate during the mothers life. or continue
long after her death. Taking the Who'a
will together the condition iS cons.fuel
az subsequent not precedent ana ITS
performance rendered imposs.nie pF tNo
act of God n the lifetime OF the testator'
tha son holds the estate by an absolute
tile. as lf no condition had been attach
cd See Nunnery ys. Carter Jones
Tq. $40: Tinlay VS.. King. Pet, st'i
Birmingham VS. LCsan, "a Nc, >9i
RESCISSIONS.
Wilson. Trustee 49, Hundley. reversed
Opinion by Judge ldlcy.
In 1880 Hundlcy subscribed for 800 shares
OF tho capital stock of the Eivormont
Company 90 be paid IN instruments 10
made the first payment, FlRD, August
800 the second 1900 the following Mo-
default on three subsequent calls TOT A"o
amounts.
zinc company made an assignment I'm
June 1898. OF all IT'S assets. including uh-
paid subscriptions. and the trustee
brought suit against ilundley who piead-
cd fraud On the procurement or nus SUD-
scriptlon IN brief this Was that the re-
presentation 10 him by the agents was
that the Roanoke syndicate had SUD-
scribcd $500 GG-uearly one haI OF lne
capital stock. when m fact it had merely
t,kon am ortion on $4,000. and suhscrh-
cd absolutely 10 only $4,000, and that
he did not learn Of this misrepr
ton tin after bee had paid the hrsl ana
second calls But sunlry letters or HUM
ley. I'm the record show that he une-
ouivocally elected after actual knC|i-
edge from official sources or the ial-liy
OF the alleged representation, TO aNfm
his contract OF subscription.
Held T. \ contract induced By fraud IS
not void but yoi1aDle az the option OF
tho injured party. Who has tho ch)ice
81 two remedies. 10 rosclnd, it me can re-
store what he has received IN tho same
condition. and recover the consideration
paid. or II he has paid nothing rely upon
tho fraud as a complete Leiense li sueu'
or retain what he has received ana tf.hS
an action for damages sustained by I'i-
SON OF the deceit. The latter course IN
effect anIrns the contract. but not as
made In good faith. lie consents 70 De
bound. hut does not THEREBY release or
waive his claim FOR damages. Many au-
th0rities cited.
.. But ~ ne elect on discovery OF tho
fraud. 10 affirm the contract his electioh
IS final and conclusive. lie has but one
election 10 rescind. and having once elect
Ell 10 affirm the contract must abide by
that election. Bigelow on Fraud, sec $50;
GRIMES vs.. Saunders. 90 l.. g. 81; Hurt
VS.. Miller. 50 Va, 81. Hudson W. Waugh
90 Va. Jl2
2. The substance OF the fraud was ina,
the entire subscription was not absolute
as represented but optional, and TINS con.
stituted the fraud and gave the r'snt oI
rescission. knowledge subsequently az
quired OF the terms OF the option was
not the discovery OF new fraud 'hese
were merely incidents OF the same fraud
and their discovery did not revive
right that had been waived after the as
covery OF the essential fact that consN-
tuted the fraud. The subsequent dlscoV-
cry OF "a new incident in the fraud does
not confer a new right 20 reaclnd. sem,
on Sales. sec. 1928: Max Meadows Lana
Co va Brady, " Va. 70.
4 Fictitions OF colorado SUBSCRIPTIONS