Foster

These two actions, practically identical in character, were tried on the same evidence. The appeals in both eases are before us under a single number, the record in each is printed in one and the same transcript and both are briefed together. A single opinion will therefore serve for a treatment of both appeals.

The actions were commenced for the purpose of recovering damages for fraud. Plaintiffs, as vendees, entered into certain contracts with defendants, as vendors, for the purchase and sale of certain lands. The alleged fraud consisted of false representations concerning the property. Plaintiffs had judgment and defendants appeal.

The first point made is that the complaints do not state causes of action. The contention is advanced that an action like these two, that is to say, an action for damages, may not be maintained except upon either a rescission or an affirmance of the particular contract claimed to have been fraudulently obtained. It is further insisted that if such an action be based upon an affirmance of the contract the complaint must allege the readiness, ability, and willingness of the plaintiff to perform his engagements under the agreement. There is no…