delivered the opinion of the court:
This was an action on the case for fraud and deceit, commenced by the appellee, against the appellant, in the superior court of Cook county. The fraud and deceit arose by reason of the transfer by appellant, to appellee, of two of the $1000 notes mentioned in the case of Leonard v. Springer, 197 Ill. 532. The jury returned a verdict in favor of the appellee for the sum of $4000, upon which the court rendered judgment for the sum of $3112.09 after allowing a remittitur of $887.91, which judgment has been affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.
It appears from the evidence that said promissory notes were not in the possession of appellee at the time of the trial, and it is insisted that fact was a bar to this action, on the ground that under the doctrine announced in Leonard v. Springer, supra, the then owner of said notes had a cause of action against the appellant. The law is well settled that one who has been induced to enter into a contract by fraud may rescind the contract and recover back the consideration paid, or he may affirm the contract and recover the difference in value between the property received and what he would have received but for the fraud. It was not necessary, therefore, that the appellee return said promissory notes to the appellant prior to bringing suit to recover for the fraud and deceit practiced upon him by appellant, but he might retain the notes and sue him for the difference between their true value and what they were represented to him to be worth, and the fact that he did not have the notes in his possession at the time of the trial was no bar to this action, as he had the right to treat the notes as his property and not the property of appellant and recover from the appellant the difference between their true value and what they were represented to him to be worth, and the appellant, when he put said notes into circulation, did so at his peril and assumed the risk of their being transferred by the person to whom he had fraudulently transferred them.
It is also contended that the trial court misdirected the jury as to the measure of damages, in this: that the jury were instructed the appellee could recover the difference between the real value of said notes and what they would have been worth if the representations made by appellant to him at the time of their transfer had.been true. The notes bore six per cent interest until maturity and seven per cent interest after maturity. The suit is not brought upon the notes, but for fraud and deceit in their sale. The instruction was therefore erroneous in so far as it permitted the appellee to recover a greater rate of interest than, five per cent upon the face value of the notes at the time they were transferred to appellee. (Schwitters v. Springer, ante, p. 271.) The amount of the excessive interest recovered by appellee was $240.90, which he has offered in this court to remit, which will cure the error in the in-, stru.ction complained of.
It is further said it was error to render judgment upon the verdict, as the verdict was against not only the appellant, but also against Miller and Sterritt, who were parties defendant but not served. The suit, after verdict, was dismissed as to Miller and Sterritt, which left the verdict stand as to appellant, and upon which a valid judgment against the appellant was rendered by the court.
It is also urged that the title to the land exchanged by the appellee for said notes was not in him. That was a question of fact which was settled adversely to the appellant by the judgment of the Appellate Court.
The thoroughly dishonest scheme of the defendant was artfully formed and was well calculated to deceive a person who was offered, in exchange for other property, the so-called securities which were put upon the market by the appellant, and the evidence fairly- tended to establish that the appellant, through his agents, obtained, in exchange for the said spurious securities, the equity in appellee’s farm, which was worth the face value of the notes. The court did not, therefore, err in declining to take the case from the jury.
Other grounds of reversal are urged in the briefs, but we find them, upon examination, to be without force.
The judgment of the Appellate Court will be affirmed for $2871^19 as of the date of the judgment of the superior court. The costs in this court will be paid by the appellee.
Judgment affirmed.