The only other specification of damage is as follows: That by reason of the failure of the plaintiff to furnish said ditches and comply with said agreement, the consideration for said notes and mortgage has entirely and completely failed, and that without such water the said land is not worth a sum greater than that heretofore paid by this defendant, and that this defendant has been damaged by such breach of contract and failure to comply with the terms of said agreement, in addition to the sums herein elsewhere set forth, in the sum of nine thousand dollars."

But, as already seen, there was no promise or agreement on the part of plaintiff to furnish said water to said land, and. therefore, the difference in value between the land as irrigated and without water cannot be considered. Indeed, this general allegation is nullified, or at least modified, by the averment that it would cost the sum of three thousand dollars to acquire and construct ditches sufficient for the irrigation of said premises. In other words, it sufficiently appears that the failure of the plaintiff as to said ditches involved a loss in the value of the land to the extent of only three thousand dollars. It is thus apparent that in the respects indicated, the cross-complaint is decidedly open to criticism, but probably it is not fatally so in view of the liberality with which pleadings should be regarded. We may even admit for the present purposes that it legally appears that appellant was damaged to the extent of eight thousand eight hundred dollars by the fraudulent representations of respondent.

But if we grant a fraud was committed, as claimed by the defendant, there was due on said promissory notes to plaintiff the sum of $15,275, in excess of the counterclaim, together with interest, but it nowhere appears in said cross-complaint that this amount or any amount was tendered or that appellant is ready, willing, or able to pay said amount or any amount. In fact, he insists that he is not required to do so before he can maintain his action for damages; and that brings us to the question, admittedly important and vital. whether the doctrine declared and expounded in the case of Hines v. Brodie, 168 Cal. 507, [143 Pac. 729], is applicable to the cross-complaint of defendant filed herein.

Therein are pointed out the two different remedies that are open to one who has been defrauded in a transaction. One of these is rescission, whereby, upon the discovery of the fraud,

he repudiates the contract and offers to return what he has received and seeks a restoration to his original position, claiming, of course, whatever damage he may have suffered by reason of the unconscionable conduct of the other party. The pursuit of the other remedy involves an affirmation of the contract, and also a claim for damages on account of the fraud. There is no claim of rescission in the case before us. It is admitted that the defendant elected to stand upon the contract. In such case it is held in the Hines decision, supra, that he must assume the burdens as well as receive the benefits of the contract. In other words, if, instead of disavowing the contract when he discovers the fraud, he chooses to appropriate whatever advantages he may receive through the terms of said agreement, he cannot in the same breath repudiate the terms that are of advantage to the other party. He can neither affirm nor disaffirm in part. In the said decision it is declared: "Here the vendee is obliged to accept the burden of the contract with its benefits, according to its terms, with the right to a recovery for the fraud based upon the fact that the benefits which he receives are not those which, under the representations of the vendor, he was entitled to receive."

It is therein stated that the true principle is well declared in the following quotation from Whitney v. Allaire, 1 N. Y. 305: "It is true that if a party affirms a contract with knowledge of the fraud, he affirms it wholly, and this whether it is executory or partly executed. But in neither case does he affirm it as a contract made in good faith. He consents to be bound by the provisions of the agreement but does not thereby release or waive his claim for damages arising from a fraud collateral to the agreement."

It is true that the Hines case was somewhat different from this in its facts, but the principle announced and emphasized in the decision is that where the defrauded party affirms the contract but seeks damages for the collateral fraud, he must, antecedently to his recovery, perform his matured obligations and avow his readiness and ability to perform whatever by the terms of the contract may be required of him in the future. The purchaser therein was not in default, as no installment of the price was due at the time suit was brought, and, of course, the question of performance or default did. not arise. But the consideration of ability and willingness

to perform the covenants which were to mature in the future did arise, and it was this that the supreme court had in view; and it was held to be insufficient to allege that the plaintiff "at the time of said offer to pay, ever since and now is ready, able, and willing to pay said purchase price upon the conditions in said contract until discovery of said fraud." It was this latter phrase, which we have italicized, that the supreme court regarded as vitiating the tender. If the party relies upon the contract and seeks its protection, he must be ready and willing to meet its demands not only up to the time of the discovery of the fraud, but at all times during which he claims its benefits.

It is the claim of appellant that a difference must be recognized between an executory and an executed contract. Manifestly, a different situation is created in these two instances. If the contract is executed, there is, of course, nothing to be done or performed under its terms. There exists no necessity nor propriety for a tender or offer of performance, and nothing is required of the defrauded party prior to his maintenance of an action for damages for the fraud. But the contract before us is not executed; it is partly executed and partly executory, as was the contract in the Hines case. Therein the purchaser had paid a part of the purchase price of the land and had entered into the possession of it. To that extent it was executed. The balance of the price he had not paid, however, nor had he received the conveyance, and therein the contract was executory.

So here, the purchaser paid a part of the purchase price and entered into possession, but he also received a deed. Nevertheless, he owed and still owes the balance of the purchase price, and to that extent the contract is executory. It is true that he gave his promissory notes for the balance, but that constitutes simply written evidence of the indebtedness. He must make the payment of those notes in order to execute the contract. Nor does it matter that he gave a mortgage to secure their payment. That does not relieve him from the obligation to pay the indebtedness, nor would his relation to the contract be different in the case of a mortgage from that of a vendor's lien. In either event there is security for the performance and the duty to perform his promise is just the

same.

Nor is there anything inequitable in this requirement. The defendant can avoid it by rescinding after discovery of

the fraud. But if he chooses to take advantage of the complete execution of the contract on the part of the vendor, there is nothing unjust in compelling him also to execute before he is permitted to avail himself of the other remedy. Applying this principle to the present case, we may notice that as early as October 1, 1910, appellant discovered the fraud. Nevertheless, he made no effort to rescind but entered into possession of the property, and thereafter made no further payment either of interest or principal of the indebtedness. The suit was commenced on the notes in April, 1912. The answer and cross-complaint of the defendant was filed in May of the same year. The cause did not come on for trial until January, 1914, when appellant was permitted to file an amended crosscomplaint. By stipulation the decision was reserved until the supreme court had finally determined the Hines case. The decree was not rendered, then, until March 31, 1915. Therefore, for nearly four years, we must presume the defendant remained in possession and enjoyed the property without the payment of any interest or rent, and he may still be in possession. Under such circumstances, it is not unfair to insist that he shall supplement his constructive affirmance by actual performance of the contract.

It is not a question of whether the same result might not be reached by allowing the defendant credit for the fraud, but whether he shall be permitted to blow hot and cold at the same time, and insist upon the contract as far as advantageous to himself, but speculate upon his chances of recovery for the fraud as a substitute for the performance of his own covenants under the contract.

But, at any rate, in the case here it is plain that appellant has suffered damages in a sum no greater than eight thousand eight hundred dollars, and he should, at least, have tendered the difference between that and the amount due under the contract.

We think the decision was just, and the judgment is therefore affirmed.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 25, 1918.

[Civ. No. 2199. First Appellate District.-February 21, 1918.]

E. Z. CUNEO, Respondent, v. THOMAS E. DAVIS, Jr., et al., Appellants.

ATTORNEY AND CLIENT-CONTRACT FOR SERVICES IN DEFENDING ACTION -TIME FOR BRINGING SUIT.-Under a contract between an attorney and client providing that if the former defeated a pending action against the latter or prevented recovery, the latter would pay the former for his services the entire amount prayed for in such action, or if a lesser amount should be recovered the difference should be paid, the action is not defeated until the judgment has become final, and an action brought for such services pending an appeal taken in the former action by the defendant is prematurely brought.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Shortall, Judge. The facts are stated in the opinion of the court.

S. W. Molkenbuhr, and Thos. W. Firby, for Appellants. James H. Boyer, and Frank J. Golden, for Respondent.

BEASLY, J., pro tem.-The facts of this case are very simple. For some time previous to the eighth day of September, 1916, James H. Boyer, an attorney at law and the assignor of plaintiff, had represented the appellants in certain litigation, for which, it is claimed by plaintiff, Boyer had not been fully paid. At the last-mentioned date an action was pending between the Pacific Coast Casualty Company and Thomas E. Davis in the superior court of the city and county of San Francisco, and Boyer entered into an agreement with the Davises, defendants herein, by which he undertook to defend that action and to pay the costs of defending the same. The provision of that contract which is under consideration here is that in case Boyer should defeat that action and prevent any recovery against the Davises therein, then the Davises would pay to him the entire amount prayed for by the Pacific Coast Casualty Company in that action; or if as the result of said action a lesser amount should be recovered than that claimed, the difference should be paid to Boyer by the Davises, such payment, as the case might be, to be