Opinion by
Plaintiff’s suit is based on fraud committed by defendant in appropriating to himself money placed in his, hands for investment and furnishing plaintiff with fraudulent copies and assignments of mortgages to represent the money. Under a charge putting the burden of proof fully upon the plaintiff, the jury have found the fraud. The facts are scarcely disputed, but appellant complains of error in the refusal to affirm his point that on the discovery of the fraud the plaintiff was bound either to ratify or rescind the transaction within a reasonable time, and his failure to do so was evidence of affirmance or acquiescence. As was well said by the learned judge below, it is difficult to “ see how an executed contract in which the money has been paid over, appropriated and used, can be rescinded by notice.” The transaction had lost its contractual character and become a tort, and an action at any time within the statutory period of limitation was the most effectual rescission.
Judgment affirmed.