*1 Before ORR and Judges. interpreted statutes of several limitations statute have “shall exist- interchangeable use, “ac- with ed.” states crue,” course, legislature “act” and “omission.” the words Of Connecticut (1951) See, e.g., Statutes Wisconsin enact a valid “substantive” statute Burns, providing 330.20; person Indiana Statutes Anno- second; (1933) 2-602, tated, here should never Oivil Oode Montana, Annotated claim of an Revised Code manufacturer arti- 93-2605; Oregon 93-2604, plaintiff’s posses- (1947) it came into cle 1.201, (1940) instance, piled 205, 1.208; a certain Annotated 1.- sion within time—for Laws year Revised Code of Dela- after manufacture or a (1935) 5129, 5133, its sale manufacturer. But after ware not be Board Harbor Com- that would of limita- Weber v. statute Cf. 57, 68, tions; missioners, 21 L.Ed. 798: statute here us is 18 Wall. specifically labelled accrued” in limitations and described as a “shall have statute. limitations *2 de- Courtney in contends escrow. Judge. instructions livered check Davis with case is jurisdiction in this Federal Mining Com- be transmitted to citizenship. The solely diversity of on pany only listed on after the Bank had Courtney, a plaintiff-appellant, M. Howard mortgage property which all of California, action an instituted resident of mortgage been listed on the Bank’s Cus- defendants-appellees, the against the or checked record to whether ascertain “Bank”) County called (hereafter ter Bank chat- Mining Company owned such Davis, the cashier and Oliver T. receiving tels free and clear. Davis denied Unit- Bank, in the both residents the check in escrow or District of ed Court for the States District listing mortgage of all Courtney complained the de- Idaho. property which had been listed on $10,000; and he fendants defrauded him of Bank’s mortgage. asserted, rather, He plus brought suit recover that amount Courtney only requested draw- that in punitive damages. directed The up ing mortgage he check to see a verdict for the defendants at close of property listed clear of liens. In presentation plaintiff’s case. event, either $10,000 the check for was sub- appeals judgment. Plaintiff from that sequently delivered to and endorsed one On November 1946, the Fourth of the officers of the Mining Company, and July Mining Company (hereafter called deposited to Mining Company’s ac- “Mining executed and deliv- Company”) count in the Bank. And after the check ered to the Bank a chattel cleared, the Mining Company repaid personal property to a loan in the secure $7,500 the Bank its loan. $7,500. Subsequently amount of Davis, While Bank, knew property listed in the that certain of the property above listed on the described chattel did not mortgage which the Bank had held belong did not mortgagor, e., Mining i. belong to the Mining Company. Company, in- such Thereupon, the Bank demand- formation was not ed Courtney. disclosed to payment immediate full its loan. To raise Davis up drew the needed Mining Com- Courtney listed pany the property negotiations entered into to which with Court- the Mining Company ney. Courtney had clear agreed titleit did Mining to lend the not list property $10,000 the Mining aon Com- note to be secured pany own, did not nor chattel mortgage on prop- identical had previously erty been mortgaged listed in the Bassett. held Bank, plus certain additional property March, In 1948,the note due, became which had been mortgaged to Roy one E. the Mining Company was pay unable to it. Bassett. Courtney agreed to extend the note for an additional eleven months in consideration Courtney Mining Company and the offi- shares of stock in Mining Davis, cers met with the cashier Company. It was not August, 1948, until Bank, in the officesof defendant Bank one after the mortgage had been exe- September 23, Bank, through cuted and several months after the exten- sion on the note had been granted, that note, agent Davis, agreed up to draw the the mortgage, papers and certain other Courtney received from the Bank the Min- act as escrow ing Company stock along with a mortgage loan transaction between Court- the mortgage. And it was then that Court- ney and the Mining Company. Courtney ney learned of the omissions deposited $10,000 (cid:127)then a draft for Bank and a check drew in that amount to Mining Company. February, order of the suit initiated this in a conflict eighteen months after he to wheth- er did directly delivered the check not cover to that what officer had. In his cause of action Company, or whether the fraudulently check was delivered that Davis to Davis Commer Pennsylvania R. Co. North R. omitted to disclose 727, S.Ct. cial Nat. 123 U.S. property listed pany all of the Cooley, 287; Gunning 266, 31 held. L.Ed. 74 L.Ed. a fidu- U.S. S.Ct. duty *3 based the Bank’s to isor conflicting is evidence But where the ciary existing between relationship allegedly ver support certain insufficient but one to Courtney, the principal, as and the Moore, improper. dict, a directed verdict is alleged that agent. Courtney as also Hamp op. cit., New 50.02[1]; Roche v. paid money the Min- the Bank to over the Cir., F. 192 shire National ing Company in violation of his 2d 203. regarding the to By way of re-

included in the is conflicting There much lief, Courtney of the asked for restitution par- the transactions between $10,000 which he to the said he entrusted point However, ties to this case. on one attorney’s Bank. He also asked for fees dispute: accept there is no punitive and damages for fraud. of stock in the pany after he had of learned defendants, In directing a verdict for the Moreover, from the no there is explained plain- the district court evidence he that the shares ever tendered tiff’s acceptance of the stock considera- back to Mining Company. The district tion for the extension he of note after undisputed court concluded fact from this had provisions unsatisfactory of the that as a matter of law also must of the mortgage acceptance indicated accepted the mortgage and waived as a law.1 matter of any right might he have had to rescind the court also ruled that there was no evidence the ground transaction on of fraud. plaintiff had exhausted his secur- ity; nor was any there evidence of fraud which are remedies Since the part Bank; of the nor was there are incon available to a victim of fraud any basis from damages necessary could be for the defrauded it is sistent, measured. party rem to choose between them. One may pursued repudiate edy which is to before a tried When a is case party is defrauded the transaction. The may was, direct jury this thereby ante, quo to and returned his status after all for defendant verdict any he to recover sum is entitled light has considered evidence been fraud; may under he advanced he plaintiff and as most favorable to the remedy any damages. sue for For the plaintiff for the matter of law a verdict repudiation is that justified. Moore’s Federal could not be oc because of the fraud no transaction For (2nd ed.) Vol. Practice § 41.13[4]. curred; that having received back all the facts jury’s is find function forth, put he the “victim” has not been material there no controverted are Corp. Lil injured. Sylvania Industrial which reasonable men Cir., of fact Estate, issues ienfeld’s F.2d Moore, op. 50.02[1]; 893,145 A.L.R. 612. differ. cit. could pages 117, appeal, he 118: at all but received some- deuce that 1. Record * * “* thing this me that'in of value stock It seems to proof company. There is no he failure of evidence that an entire there is case n damaged. security, is, plaintiff has exhausted his property had appears evidence that also judg- mining company is evidence in court’s no stock part any ment the present for extension of consideration mortgage, If I were and that was on or about bank. they jury to discuss this evi- furnished a that he was date try by to arrive aat verdict I Bank. dence and This they accepting way no determine know his in the stock act damage mortgage, — n has amount indicate nothing is I feel that there sustained. no returned evidence that there grant motion.” me do hut to stock liking. to his There is evi- may At us remedy argument time of the The alternative appellant mis- suggested he was party be elected the defrauded is that remedy, remedy main taken should affirm the fraudulent transaction —that principal damages de have tain an action been an action himself as to recover 64, against ceit. to recover Stelle, MacLeod 43 Idaho as his principal, under permits rule which (cid:127)to damages recover from his action, In the instant agent. repudiate chose to the transaction and If light, the action were viewed in that sue recovery retention of the stock *4 prior advanced so that his status might while it bar his chance for disaffirm- the alleged might How be restored. ance Mining Company, ever, Courtney’s incon admitted conduct is operate to release agent his from lia- repudiation. sistent with mere fact bility. Courtney would right have a that Courtney extended the due date retain the stock protect in order to his note for which interest. He right would have a to realize at a time when what he could the- from defective was valid would not alone bar him from re and hold the on account pudiating upon discovery loss established. See Restatement aof fraud. But when Agency, 416(a), and Pacific Vinegar compensation for the extension the due & Pickle Smith, Works Cal. date even after he knew of the 85; Tiffany, Agency (1924), pp. fraud, and, furthermore, failed to tender 170-171. compensation back, only conclude that he I am chose opinion to affirm the that there was a com- plete transaction. Otherwise, Courtney would prove failure to damages under the of claiming that there was which was available to Court- ney. valid while at the same time claims he retained benefits for forbearing included to fore in his mortgage was worth- close that very less and “non-existent” property which was omit- ted would have adequate to secure Affirmed. him. No competent proof of this worthlessness or of the claimed values Judge offered. I (concurring). think therefore that the judgment must be agree I judgment here must affirmed. although affirmed I have somewhat dif- ferent view as to the reasons for the affirm-

ance.

The facts of stock in the received the

pellant, Company at same time of his from (Patents) 39C.C.P.A. property had Application of RAY. been omitted Appeal Patent 5897. majority opinion clear, therefore States Court Customs Courtney retained the shares suggests, Appeals. and Patent of stock June the mort- Sept. 30, Rehearing Denied gage. theory upon

Now, Court- appeal, prosecuted retention

ney recovery, mining stock would bar seeking theory was that he was for that lost

restitution the fraud of the defendants.

reason