Bird v. Hamilton. were kept in the name of Bird and Hamilton, but after that, in the name of Hamilton alone. This circumstance should not be used to the disadvantage of Hamilton. It should not be construed into a waiver of the agreement requiring Bird to furnish a third of the capital. To give such a construction to what was intended as a favor to Bird, and nothing more-that is, to permit him to reap the benefits of a contract, by performing on his part, after the time for that purpose had elapsed,-would be hard indeed, and saying to persons hereafter, in like circumstances, show no indulgence whatever to a defaulting party, or it will be construed into a waiver of your rights. There is no evidence of a waiver, and it certainly should not be implied from slight circumstances. It is hardly reasonable to suppose Hamilton intended to give Bird the benefit of his services, and of the $8,000 capital invested by him in the business. The complainants seem to have been aware of this difficulty, for they state in their bill the parties were to borrow money on the credit of the firm, to stock the road, and to repay it from their receipts; and that money was actually borrowed by them for that purpose. The answer positively denies any such understanding, or that any money was borrowed by the firm. And this allegation of the bill is unsupported by testimony, except the evidence of Lorenzo Dow Bird, who says there was an understanding, or agreement, that the money necessary for the first payment should be borrowed on the credit of the firm; and he thinks some three hundred dollars were borrowed of a bank in Jackson. The witness is not positive any money was borrowed; he thinks it was borrowed; and the agreement or understanding to which he testifies is not only denied by the answer, but is *in direct contravention [*372] to the articles of agreement, which speak of capital or stock, and not of credit. Hamilton gave receipts in the name of Bird and Hamilton, for the mail money, from time to time, as it became due, and they are adduced as evidence of a partnership. Hamilton and Bird, as already stated, were joint contractors for carrying the 1w372 107 444 1 w373 95 519 Bird v. Hamilton. mail. Suppose Bird, after making the contract, had refused to have anything to do with carrying the mail, and Hamilton, as he was equally liable with Bird for a non-performance of their contract, to save himself, had gone on and fulfilled the contract with the government; would he not have been entitled to the mail money? And would he not have given receipts in the name of Bird and Hamilton? The case supposed is the one before the Court, if Bird, by reason of his failure to comply with the articles of agreement, was not a partner with Hamilton. As to the sixty dollars, Hamilton did not receive it as performance of the articles of agreement by Bird, who, at the time he paid it, promised to pay the balance of his share of the first payment, and to furnish his part of the securities. It was not intended by the parties to secure the rights of Bird under the articles, unless the promise made at the same time was afterwards performed. The question is one of partnership between the parties themselves, and not as to third persons. Individuals, who are not partners in fact, are sometimes liable as partners to third persons, on account of holding themselves out to the world as partners. But that is not the question in the present case, which is one of partnership between the parties; and, when that is the case, the agreement out of which the supposed partnership arises, is to be construed as any other agreement between the same parties. The present case is not, I confess, without its difficul[*373] ties.* It is peculiar in many of its features, but, after the best consideration I have been able to give it, I am of opinion that Bird and Hamilton were not partners under the articles of agreement of May sixteenth, by reason of Bird's failure to furnish his share of the stock. McGraw v. Pulling, 1 Freeman R. 357. Bill dismissed, but without costs, as complainants are executors, and appear to have acted in good faith in bringing their suit. Carroll v. Rice. CHARLES H. CARROLL v. RANDALL S. RICE, ADMINIS- Fraud vitiates all contracts, at the election of the party injured; but he must make his election on the discovery of it, or within a reasonable time thereafter, whether he will rescind the contract, or consider it good, and resort to an action on the case for damages. If the condition of the property has been so changed that the parties cannot substantially be placed back where they were before the sale, the vendee must seek redress by an action on the case. A party seeking to set aside a conveyance on the ground of fraud, must be prompt in communicating the fraud when discovered, and consistent in his notice of the use he intends to make of it.1 In a suit brought to set aside a bond and mortgage for purchase money, on the ground of fraud, the mortgagee being dead, and his estate insolvent unless the bond should be paid, the Court, although it refused, under the circumstances of the case, to rescind the contract, retained jurisdiction under the general prayer of the bill, on the ground that it could give more full relief than a court of law, and awarded an issue to ascertain the damage which complainant had sustained by reason of the alleged fraud.2 *This was a bill to rescind a sale of real estate, &c. [*374] The facts necessary to an understanding of the several points decided, are stated in the opinion of the Court. See as to laches, Street v. Dow, Harr. Ch. 427; McLean v. Barton, id., 279; Canipau r. Van Dyke, 15 Mich., 378; De Armand v. Phillips, ante, 186; Schwarz v. Wendell, ante, 268; Boyce v. Danz, 29 Mich., 146; Russell r. Miller, 26 id., 1; Case v. Case, 26 id., 484; Miller v. Thompson, 34 id., 10. As to where jurisdiction for one purpose will be retained for another, see Brown v. Gardner, Harr., Ch. 291; Whipple v. Farrar, 3 Mich., 436; Hawkins . Clermont, 15 id., 511; Miller v. Stepper, 32 id., 194. 1w373 15 378 31 535 60 620 Carroll v. Rice. A. D. Fraser & T. Romeyn, for complainants, contended that the contract between the complainant and Sargeant was vitiated by the fraud of Sargeant in his assurances concerning the property. That misrepresentation or concealment in regard to material facts, entitles the injured party to have the transactions set aside, whether the party making the misrepresentation knew it to be false, or made his statements without knowing whether they were true or not, a person selling land being presumed to know the correctness of his representations. The title failing to part of the land, the whole sale will be rescinded. Complainant is entitled to payment for his improvements, and is liable only for the actual rents and profits. Lapse of time is no bar to the relief sought, as the right to it does not arise completely until discovery. H. N. Walker, and E. Farnsworth, Attorney General, for defendants. There was no such fraud or misrepresentation on the part of Sargeant, as to the situation, extent, and value of the property, as would, if not excused, authorize this Court to annul the contract, and compel the defendants to refund the money already paid. It must appear not only that there were misrepresentations, but that the party was misled by them. Complainant has waited too long. The condition of the property is so changed, that the parties cannot be replaced in statu quo. A party seeking to set aside a conveyance on the ground of fraud, must be prompt in communicating it, when discovered, and consistent in his notice to the opposite [*375] party of the use he intends to make of it. He must not keep the property, to wait the chances of profit, and disavow the contract when it proves a bad bargain. THE CHANCELLOR. On the 28th of July, 1836, Carroll purchased of Nehemiah O. Sargeant his interest in the village of Kent, at the Rapids of Grand River. Sargeant and Lucius Lyon were at that time joint proprietors of a large part of the village plat, and had made, and were then engaged in making Carroll v. Rice. divers improvements, and were the owners of considerable personal property, connected with their village speculation, as materials for building, teams, and instruments for the construction of a canal then in part completed, and the like. They were also parties to various contracts for the sale of village lots, and the joint holders of bonds and mortgages, given for village property sold by them. Carroll was to take Sargeant's interest in the village speculation, to succeed to all his rights, and assume all his liabilities, and to pay Sargeant $83,000,viz: $5,000 in cash, $18,000 by a draft at ninety days on the Phoenix Bank in the city of New York, and $60,000 in twelve annual installments of $5,000 each, with interest on each installment when paid. The necessary papers were executed, and possession was taken of the property by Carroll. Sargeant died in September, 1838, and defendant, Rice, was appointed administrator of his estate. In April, 1840, Carroll filed his bill in this Court against Rice, the administrator, Catharine C. Sargeant, the widow, and Lucius Lyon Sargeant, the only child, and heir at law, a minor under the age of twenty-one years, to have the sale of July twenty-eighth rescinded and the securities given for the purchase money delivered up and canceled, and to be repaid with interest what he had paid toward the chase, on the ground of fraud in Sargeant, in misrepresenting the condition and *situation of the property at [*376] the time of the purchase; Carroll offering to account for all sales made by him. pur The bill alleges, Sargeant misrepresented the property, in the following particulars, to induce complainant to purchase it. First. The depth of the water in Grand River both above and below the Rapids, at which point the village of Kent is situated, and the facilities the river afforded for navigation. Second. That the river did not overflow its banks at the village, in the time of freshet. Third. The cost of completing the canal, which was in an unfinished state, and which, when completed as laid down on the village plat,was to extend from the head to the foot of the Rapids, Fourth. The average head and fall of the water power that |