Oliver Wendell Holmes, Jr.

“ It is true that the fraud was perpetrated by an agent, and it is argued that he did not represent the bank for an illegal act. But unless this means that there was no sale, as the answer and a part of the argument seem to suggest,-in which case, of course, Petrie must have his money back,-the answer is that if the bank relies upon the sale it must take it with the burden of the fraud. It must adopt the whole transaction or no part of it. It cannot affirm what is for its advantage and repudiate the rest. Cases where the action is on the illegal contract do not apply. ”

“ The right not to be led by fraud to change one's situation is anterior to and independent of the contract. The fraud is a tort. Its usual consequence is that, as between the parties, the one who is defrauded has a right, if possible, to be restored to his former position. ”

“ The ground of the action is that the sale was induced by false representations of the president of the bank. We do not state these particularly, because the findings and rulings of the state court with regard to them are not open. We have to deal with no question except the defense attempted under the United States statute, and, therefore, need not inquire whether they contained a stronger infusion of fraud than is allowed to vendors in the way of praising their wares. ”