207 N.W. 839
Mich.
1926
Sharpe, J.

On February 24, 1923, plaintiffs purchased from defendant on a land contract a farm of 200 acres in Muskegon county, and the live stock, tools and implements thereon, at an agreed price of $10,000; *129 payable, $1,000 on delivery of the contraсt, and balance in deferred payments. On April 8,1924, they brought this aсtion to recover damages claimed to have been sustained by them, due to the false and fraudulent represеntations made by defendant as to the condition and ‍​​​​‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌‍value of the farm and the personal property. They had verdict and judgment in the sum of $1,000. The defendant had moved for a directed verdict, and for judgment notwithstanding the verdict, and the errors discussed by her counsel relate to the denial of such motions.

Plaintiffs moved on the farm soon after the execution оf the contract, and remained there until May 12, 1924. They failed tо pay the taxes levied on the farm in 1923, as they had agreed to do in the contract, and defendant, on February 23, 1924, servеd on them a notice of forfeiture, and afterwards took proceedings to recover possession, resulting in thе issue of a writ of restitution on May 12, 1924. The plaintiffs surrendered possession to her on that day.

It is defendant’s claim that, as plаintiffs admit that they became fully advised as to the condition оf the farm and the personalty as early as May, 1923, their conduct in retaining possession ‍​​​​‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌‍thereafter, and without making any еffort to rescind the contract, amounted in law to a wаiver of any claim for fraud which they might have. Her counsel rеlies on the following eases: Rumsey v. Fox, 158 Mich. 248; Hakes v. Macklin, 170 Mich. 228; Draft v. Hesselsweet, 194 Mich. 604; Parkyn v. Ford, 194 Mich. 184. These cases all involvе rights under rescission or questions concerning the validity of the contract.

Where a vendee claims that he had beеn defrauded in the purchase of property by misreprеsentations as to its condition or value, ‍​​​​‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌‍he has his choice of two remedies. He may rescind the contract, tеnder back that which he has received, and demand a return of *130 that which he paid; or, he may affirm the contract, rеtain the property, and bring an action to recovеr the damages sustained, due to such misrepresentation. This сourt has many times so held. Two of the later cases arе Barnhardt v. Hamel, 207 Mich. 232, and Bryan v. Houseman-Spitzley Corp., 213 Mich. 236.

Plaintiffs’ action is not founded on rescission. In it recovery is sought for the damages incurred by reason of the represеntations ‍​​​​‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌‍made, which are alleged to be false, and which it is claimed were relied on by plaintiffs. As was said in Barnhardt v. Hamel, supra:

“The relief asked in this form of action does not involve the parties being placed in statu quo, but is only to recover damages for a wrong done, and no special diligence is required to discover the fraud or in ‍​​​​‌‌​‌​​​​​‌‌​‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌‌‌‌​‌​​​​‌‌‌​‌‍bringing such action aftеr discovery short of the statute of limitations.”

In Parkyn v. Ford, 206 Mich. 576, it was pointed оut that the right to bring an actiomsuch as is here brought may be waivеd by acts which indicate an intention to dq so: In St. John v. Hendrickson, 81 Ind. 350, quoted from approvingly in that case, it was said:

“We neither hold, nor mean to hold, that affirmance by retention of the thing bargаined for cuts off an action far damages.”

The forfeiture of the contract, followed by the issue of the writ of restitution, in no way affected plaintiffs’ right to recovér. Williamson v. Hannan, 200 Mich. 658.

The judgment is affirmed.

Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.