Former opinion adhered to June 4, 1918.
On Rehearing.
(173 Pac. 461.)
Mr. Guy G. E. Corliss, Mr. Martin W. Eawkins and Mr. Edioard J. Brasell, for the respondents (applicants for rehearing), with an oral argument by Mr. Corliss.
*65Mr. Henry S. Westbrook and Messrs. Ghristopherson & Matthews, contra, with an oral argument by Mr. Henry 8. Westbrook.
In Banc.
McBBIDE, C. J. —Í. The able petition for rehearing herein created some doubt in the mind of the court as to the soundness of the original opinion concerning the jurisdiction of equity in the premises. Upon a careful review of the authorities and a consideration of the testimony we are satisfied that the result arrived at by Justice Benson is correct.
The crucial point in the case is stated by Justice Benson as follows:
“It must be remembered that they are not seeking a rescission of their contracts, or a cancellation of their deeds, but simply to recover the difference between the price received by them and the true value of the property, and for this relief they have a complete remedy at law. When a party has been induced by fraud and deceit to part with his property for an inadequate consideration, he has his election of two remedies; he may affirm the transaction and have his action for damages, or he may repudiate the bargain and call upon a court of equity to aid him in placing the parties in the position they occupied before the deal was consummated, but he cannot have both remedies.”
The application of this doctrine here is this: The plaintiffs waive minority as a substantive cause of suit. They do not ask to have the sale set aside or the contract rescinded. Having arrived at majority they had, upon discovery of the alleged fraud, a right to have the deeds set aside and their lands returned to them. But they chose to affirm the sale and thereby stand in the same position as though they had been of *66full age. This being true their remaining remedy was by an action at law to damages for the alleged deceit. There is nothing in the case that calls for an intricate accounting or for any investigation that a jury cannot make readily. The price paid plaintiffs for their shares is easily ascertained; the price paid to defendant is admitted and the measure of damages is the difference between the net price paid to plaintiffs and the price received by defendant from her grantee. There is no pretense that the mortgage is worth less than its face. On the contrary the tendency of plaintiffs^ evidence is to show that it is ample security for the balance due. There is no pleading or proof that defendant is or is likely to become insolvent, so that with the sale affirmed and the right of rescission waived by the plaintiffs, there is left to them a plain, speedy and adequate remedy at law for damages for the alleged deceit, in which defendant can have the benefit of a jury trial.
We adhere to our former opinion.
Former Opinion Approved. Decree Reversed.
Bean, J., dissents.