
    No. 11,202.
    Lewis v. Carsh, et al.
    Decided February 8, 1926.
    Rebearing denied March 22, 1926.
    Action for damages for fraud and deceit. Judgment of nonsuit.
    
      Affirmed.
    
    1. _ Nonsuit — When Proper. Where the evidence of plaintiff destroys Ms ease, a motion for nonsuit is properly granted, even though presented before plaintiff has rested.
    
      2. Eishts and Remedies — Fraud—Contract. On discovery of fraud a party may rescind a contract, or affirm it and sue for damages.
    3. Ebatjd — Ratification. Where a party on discovering fraud in the procuring of a contract elects to go on -with it, exacting performance from the other, party, he affirms it in toto.
    
      Error to the District Court of the City and County of Denver, Hon. Julian H. Moore, Judge.
    
    Mr. W. Gr. Alexander, Mr. Charles F. Miller, for plaintiff in error.
    Messrs. Ewing & Arnold, Messrs. Fillius, Fillius & Winters, for defendants in error.
    
      Department Two.
    
   Mr. Justice Denison

delivered the opinion of the court.

Lewis brought suit against Carsh and Heller for deceit in the sale to him by them of stock in the Blue Ribbon Coffee and Tea Company. Before the plaintiff had rested the court granted a nonsuit. The ground of the nonsuit was, of course, that facts had already been shown which precluded a finding for the plaintiff. Our inquiry, then, must be whether that was true.

The evidence showed nothing against Heller. It appeared only that he had acted as attorney for the parties in organizing the company and afterwards as its attorney. As to defendant Carsh the plaintiff himself testified that certain representations of the condition and business of the company were made by Carsh and by one Hackensmith in Carsh’s presence on which plaintiff relied and bought one-third of the stock of the company, but he further testified that after he discovered the untruth of the statements he continued in the company’s business, made further payments to Carsh until the latter was paid in full, and even joined Carsh in selling about half the company’s stock to two other men, shortly after which the company failed.

Upon discovery of the fraud he might rescind or affirm the contract and sue for damages, but such affirmance relates only to the completed portion of the transaction; if the contract is uncompleted and he elects to go on with it, exacting performance of the other party as here, he affirms it in toto. Ponder v. Altura Co., 57 Colo. 519, 523, 143 Pac. 570. Plaintiff’s own testimony, therefore, destroyed his case and the nonsuit was right.

Judgment affirmed.

Mr. Chief Justice Allen and Mr. Justice Whitford concur.  