—I cannot agree with my associates. The case was tried and submitted to the jury on a question of fraud affecting the consideration of the note. The appellant attacks the verdict on several very strong *170grounds, which, however, were not taken at the trial. There are no exceptions in the case which can disturb the judgment, and the attention of the court below was not called in any instance to the objections now urged against the defendant’s case. The judge was not asked to instruct the jury on any point of law, and no objection was made to his leaving the question of fraud to the jury as the only question in the case..
The appeal from the order denying the motion for a new trial does not assist the plaintiff. A new trial is not the right of the defeated party where the whole trial was conducted on a theory of law and fact to which he assented. It is too late after verdict to urge objections which, if 'made at the trial, could have been easily obviated. New trials will be granted where the court errs in submitting the caseto the jury upon a theory of law which is not sustained by any facts in evidence, even if the defeated party has taken no exception; but where there are several theories to which the facts are applicable, and the trial is conducted upon one of them, and no objection is made to it, a new trial should not be granted. It seems from the opinion of the judge given upon the motion for a new trial, that the points on which the motion was made were then presented for the first time.
The case was submitted to the jury on the question of fraud. If they found the. plaintiff guilty of fraudulent misrepresentations, as an inducement to the transaction by which he got the notes, the defendants were entitled to judgment. It was not necessary that the whole contract should be rescinded and disaffirmed, or an offer made to that effect by the defendant, in order to avail himself of the defense of fraud. Fraud may be a bar to recovery without other rescission or repudiation of the transaction. In this case, the contract could not be rescinded by the defendant alone. On the sale he gave two notes, and one of them he paid before he discovered the fraud. The plaintiff having that money in his pocket, cannot demand a disaffirmance on the defendant’s part.
The judgment should be affirmed.
Judgment reversed.