Where a national bank has sold certain bonds and the vendee has
obtained a judgment for the purchase money in a state court on the
ground that the sale was induced by false representations of the
president of the bank, the judgment will not be reversed on the
ground that the sale of the bonds was without the authority of the
bank and was illegal and void. The fraud is prior to the sale and
authorizes a rescission; nor can the bank claim that the fraud was
perpetrated by an agent who did not represent it for illegal
purposes. The bank must adopt the whole transaction or no part of
The case is stated in the opinion of the Court.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action to recover money paid to the plaintiff in
error for certain bonds. One defense set up in the answer was that
the bank was a national bank, and that the sale of the bonds was
without the authority of the bank, and was illegal and void.
Judgment went against the bank, it was affirmed by the appellate
division of the supreme court and by the Court of Appeals, and the
case now comes here by writ of error. 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
Page 189 U. S. 424
of fraud than is allowed to vendors in the way of praising their
As we are of opinion that the defendant in error is entitled to
keep his judgment, it does not matter so much as otherwise it would
whether the result is reached by a dismissal of the writ, on the
intimation of Walworth v.
15 How. 348, 56 U. S. 353
see Conde v. York, 168 U. S. 642
168 U. S. 649
or by an affirmance of the judgment. We shall assume that the
defense under the statute was such a claim of immunity as to
entitle the plaintiff in error to come here. Logan County
National Bank v. Townsend, 139 U. S. 67
139 U. S. 72
McCormick v. Market Bank, 165 U.
, 165 U. S. 546
On that assumption, however, we do not perceive how the defense is
made out on the record. The complaint, to be sure, alleges that the
bank was acting unlawfully in selling the bond, but it does not
appear that Petrie knew the fact, and it would be a strong thing to
charge him with notice or a duty to make inquiries as to how the
bank was conducting its business, or to make the validity of the
sale depend upon the fact alone, irrespective of the purchaser's
knowledge. See Miners' Ditch Co. v. Zellerbach,
543, 578, 579; New York & New Haven Railroad v.
34 N.Y. 30, 73; Madison & Indianapolis
Railroad v. Norwich Savings Society,
24 Ind. 457, 462. The
sale might have been lawful. It was not necessarily wrong.
First National Bank of Charlotte v. National Exchange Bank of
Baltimore, 92 U. S. 122
92 U. S. 128
However, we need not stop at this preliminary difficulty or another
suggested by the answer, on which no point was made. The answer
alleges that the sale was without the authority or consent of the
bank, and was not within the course of its regular business, which
looks a good deal like an attempt to deny that there ever was an
effective sale, and yet to keep the price.
The declaration goes upon a rescission of the contract. It
contains ambiguous language, but the allegations of tender of the
bond and that the tender still is kept good make the ground
sufficiently clear. The question, then, is, leaving on one side the
averment just quoted from the answer, and assuming that the parties
were attempting a transaction forbidden by the law, whether the
nature of the attempt prevents one of them from
Page 189 U. S. 425
withdrawing from the bargain on the ground of preliminary fraud.
If the withdrawal were on the ground of repentance alone, the law
might or might not leave the parties where it found them. See
Central Transportation Co. v. Pullman's Palace Car Co.,
139 U. S. 24
139 U. S. 60
Pullman's Palace Car Co. v. Central Transportation Co.,
171 U. S. 138
171 U. S. 150
But a person does not become an outlaw and lose all rights by doing
an illegal act. See Connolly v. Union Sewer Pipe Co.,
184 U. S. 540
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. That right is not taken away because the consequence of
its exercise will be the undoing of a forbidden deed. That is a
consequence to which the law can have no objection, and the
fraudulent party, who otherwise might have been allowed to disclaim
any different obligation from that with which the other had been
content, has lost his right to object, because he has brought about
the other's consent by wrong. See Pullman's Palace Car Co. v.
Central Transportation Co., 171 U. S. 138
171 U. S. 151
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. Such was First
National Bank v. Hoch,
89 Pa. 324. Here, the attempt is to
recover outside of it, treating it as set aside. An action for
damages caused by fraudulent representations which induced a
contract affirms the contract and relies upon it, Whiteside v.
152 Mass. 133, 134, and therefore may be subject to
the same defenses as an action brought directly upon the contract.
Weckler v. First National Bank of Hagerstown,
42 Md. 581,
595, 597, seems to have been
Page 189 U. S. 426
an action of this character in respect of a sale on commission
by the bank. We express no opinion as to an action of that kind.
See Thompson v. Saint Nicholas National Bank, 146 U.
, 146 U. S. 251
Concord First National Bank v. Hawkins, 174 U.
. But when a right is claimed to repudiate it, the
party who denies the right is the one who relies upon the contract,
and that party must take it as it was made. The record discloses no
error reexaminable here.
MR. JUSTICE McKENNA took no part in the consideration and
disposition of this case.