The plaintiff has recovered a judgment for the sum of five hundred dollars as damages sustained by her for alleged fraud and misrepresentation on the part of the defendant in inducing her to enter into a contract for the purchase of two lots of land owned by the defendant. It seems to me that the plaintiff has sufficiently shown that she has a cause of action as alleged, but she is not entitled to the damages which have been allowed. It appears that the contract was' entered into on the 15th day of January, 1910. It provided for the payment of the purchase price of $620 by the receipt of $480 upon the making of the contract and the balance in monthly instalments of five dollars each, and provided further for the forfeiture of the contract in case of default for ninety days in the payment of any instalment of the contract. The plaintiff claims that sho has paid instalments amounting to seventy dollars, but she has not paid any instalment due under the terms of the *477written contract on or after April fifteenth., more-than five months before the beginning of the action.
It is well established that a person induced to enter into a contract for the purchase of land by fraud has two remedies at law. He may disaffirm the contract and sue for the consideration paid or he may affirm the contract and retain what he has received, suing for the difference in value between the premises if they had been as represented and their actual market value. Ettlinger v. Weil, 184 N. Y. 179. Where, however, damages representing the difference of market value are claimed it is obvious that at the time the action ■is brought the plaintiff must still be entitled to enforce his contract. He cannot himself abandon the contract and fail to pay the instalments entitling him to the conveyance and yet claim that he has been damaged to the extent of the difference in the value, of the land as represented and as existing. Until he shows that he has a right to enforce the contract this difference is not the measure of his damages. If he is no longer entitled to his bargain, then the value of his bargain is immaterial and his damages are limited to the consideration paid.
In this case the consideration paid is concededly less than $500. The complaint itself shows that the sum of $480 was not paid at the time of the making of the contract but that the plaintiff paid only $20 and surrendered to the defendant for cancellation a prior contract for the same lots made to one Koch on which it was represented that Koch had paid $460. The contract was bought by the plaintiff from Koch not for cash but in exchange for a dog of unknown pedigree and unproven value though the complaint alleges its value at $100. Upon the theory of a disaffirmance or rescission of the contract the plaintiff could not recover, therefore, more than the sum of $90 plus, perhaps, the value of the dog, and it is not disputed that the case was not tried and the judgment can not be sustained on this theory of the measure of damages.
The trial justice undoubtedly adopted as the measure of damages the difference between the market value of the lots and their value if they had been as represented. The plaintiff is, however, not entitled to any conveyance of the lots; *478she has not paid the agreed amount upon the contract and has failed to pay any sum since the discovery of the alleged misrepresentation. The difference in value is, therefore, not the measure of her’ damages.
The judgment should he reversed and a new trial granted with costs to appellant tó abide the event.
Judgment affirmed.