uestion as to what constitutes duress, menace and undue influence: Morrill v. Nightingale, 93 Cal. 452, 27 Am. St. Rep. 207, 28 P. 1068; A.H. Averill Machinery Co. v. Taylor, 70 Mont. 70, 77, 223 P. 918; Adams v. Irving Nat. Bank, 116 N.Y. 606, 15 Am. St. Rep. 447, 6 L.R.A. 491, 23 N.E. 7; Thompson v. Niggley, 53 Kan. 664, 26 L.R.A. 803, 35 P. 290; Portland Cattle Loan Co. v. Featherly, 74 Mont. 531, 241 P. 322; Tiffany Co. v. Spreckels, 202 Cal. 778, 262 P. 742; Hale v. Smith, 73 Mont. 481, 487, 237 P. 214; Murphy v. Nett, 47 Mont. 38, 52, 130 P. 451; Heaton v. Norton County State Bank, 5 Kan. App. 498, 47 P. 576; Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010, 29 N.E. 525; Hargreaves v. Korcek, 44 Neb. 660, 62 N.W. 1086; Gorringe v. Reed, 23 Utah, 120, 90 Am. St. Rep. 692, 63 P. 902; Fountain v. Bigham, 235 Pa. St. 35, Ann. Cas. 1913d 1185, 84 A. 131; 9 R.C.L. 720; Clifford v. Great Falls Gas Co., 68 Mont. 300, 216 P. 114; Meyer v. Guardian Trust Co., 296 Fed. 789, 792. Citing: Ott v. Pace, 43 Mont. 82, 115 P. 37; Emerson-Brantingham Implement Co. v. Anderson, 58 Mont. 617, 194 P. 160; Kimball Co. v. Raw, 7 Kan. App. 17, 51 P. 789; Kiler v. Wohletz, 79 Kan. 716, L.R.A. 1915B, 11, 101 P. 474; Walla Walla Fire Ins. Co. v. Spencer, 52 Wn. 369, 100 P. 741; Stout v. Judd, 10 Kan. App. 579, 63 P. 662; Heald v. Crump, 73 Colo. 251, 215 P. 140; Miller v. Davis' Estate, 52 Colo. 485, 122 P. 793; Hackley v. Headley, 45 Mich. 569, 8 N.W. 511; F.B. Collins Investment Co. v. Easley, 44 Okla. 429, 144 P. 1072; Tisdale v. Bryant, 38 Cal.App. 750, 177 P. 510. MR. JUSTICE ANGSTMAN delivered the opinion of the court.

Delay and vacillation are fatal to the right which had theretofore subsisted. ( Ott v. Pace, 43 Mont. 82, 115 P. 37; Grymes v. Sanders, 93 U.S. 55, 23 L.Ed. 798; Hills v. Johnson, 52 Mont. 65, 156 P. 122; Edwards v. Muri, 73 Mont. 339, 237 P. 209.) Under the authorities, supra, it is clear that there never was a rescission and, so far as plaintiff is concerned, there never could be one, even assuming that the representations made by defendant were sufficient to afford that relief. Such being the case plaintiff cannot recover herein upon the theory of rescission.

The defendants used the threshing outfit extensively throughout the threshing seasons of the years 1914 and 1915. "A contract must be promptly rescinded upon discovery of fraud or it will be regarded as having been ratified." ( McConnelly v. Blackley, 66 Mont. 510, 214 P. 64; Ott v. Pace, 43 Mont. 82, 115 P. 37; sec. 7567, Rev. Codes 1921.) The defendants were present at Forsyth when the engine was delivered by the seller, and had the engine been a second-hand engine that fact could, and should have been, readily discernible.

We contend that the complaint is wholly insufficient, and the charges therein made do not constitute actionable fraud. ( Ott v. Pace, 43 Mont. 82, 115 P. 37; Butte Hardware Co. v. Knox, 28 Mont. 111, 72 P. 301.) Appellants allege that they have been continuously in possession of the premises agreed to be conveyed ever since about the fifth day of July, 1918. If this be true, then they have had the benefits of possession and occupancy and the crops grown thereon, and have occupied the premises with full knowledge of the alleged insufficiency of the water rights to irrigate the lands susceptible of irrigation ever since the summer of 1918. "A voluntary acceptance of the benefits of a transaction is equivalent to a consent to all the obligation arising from it, so far as the facts are known or ought to be known to the person accepting."

The latter, like the former, is limited to questions that directly implicate interests in the property or rights to possession. Compare, e.g., Pace v. Ott, 189 Okla. 230, 231, 115 P.2d 253, 255 (1941) (action for damages to land sustained by oil and salt water pollution is not a local action), and Wise v. Isenhour, 9 N.C. App. 237, 239, 175 S.E.2d 772, 773 (1970) (action for damages against builders for breach of construction contract is not a local action), with, e.g., Livingston v. Jefferson, 15 F.Cas. 660 (C.C. D.Va. 1811) (No. 8,411) (action for trespass is a local action), and Wilson v. Kryger, 29 N.D. 28, 34, 149 N.W. 721, 723-24 (1914) (action to determine adverse claims to real property is a local action). See also 21 C.J.S. Courts §§ 45-49 (1940).

The contractor's request that the owner take over the completion of the building for him was an election to be bound by the contract, and, after the owner had accepted said proposal and had acted thereon by expending large sums of money on the faith of such request, the contractor could not rescind or abrogate the contract for a breach thereof or for fraud in the inception thereof theretofore discovered, but at most must rely on his claims for damages. Lee v. McClelland, 120 Cal. 147, 52 P. 300; Brown et al. v. South Joplin Lead Zinc Mining Co., 231 Mo. 166, 132 S.W. 693, 140 Am. St. Rep. 509; Ott v. Pace, 43 Mont. 82, 115 P. 37; Page on Contracts (2d Ed.) § 354. Whether the contractor's conduct before the agreement of April 23, 1918, also waived his claim for damages for fraud in procuring the contract we need not at present determine.

There the Court noted the defendant requested an instruction stating the measure of damage should be the difference between the property immediately before and after the injury. Additionally, the Court noted in passing the expert testimony of valuation of the trees was admissible for jury consideration along with the difference in value before and after damage, but in absence of the latter, reversed the judgment. See also Pace v. Ott, 189 Okla. 230, 115 P.2d 253 (1941). The remaining jury instruction questioned is based upon 23 O.S. 1971 § 72[ 23-72] and allows damages to be treble for wrongful injury to trees where the wrongdoer is found to have acted willfully.

There was no evidence, expert or otherwise, from which the jury could have computed the speed of the train from the distance required to stop it. In the absence of such evidence, any conclusion by the jury that the train was going "as much as 100 miles per hour" would have been conjecture and speculation and not a proper basis for a finding of negligence on the part of defendants. Pace v. Ott, 189 Okla. 230, 115 P.2d 253. In connection with the alleged failure to sound the whistle, plaintiff says that "a minimal requirement of statute and case law in the operation of a train is the sounding of a whistle 1320 feet before reaching a crossing" and argues that "the testimony of Mr. Roberts (the refinery employee), standing alone, and with nothing else, was sufficient to take the case to the jury" (emphasis supplied).

This court has held that representations as to the quality of land and the ability of the land to produce profits sufficient to meet contract payments are expressions of opinion or judgment only, and will not per se constitute actionable fraud. Ott v. Pace, 43 Mont. 82, 92, 115 P. 37. As we have pointed out, there is no evidence that the Hills made any misrepresentations as to the productivity of the ranch. The Hills may have incorrectly expressed their opinion as to the amount of prime grazing acreage, but standing alone this is insufficient grounds for relief. No distinction should be drawn, therefore, between land under fence and that beyond the fence for purposes of computing damages.

[4] Even though there is some authority stating that damage or injury need not be shown in situations where fraud is advanced as a defense to a suit on a contract (Kohl v. Taylor, 62 Wn. 678, 114 P. 874, 35 L.R.A., N.S., 174, 189; Metropolitan Life Ins. Co. v. James, 231 Ala. 295, 164 So. 377; 23 Am.Jur., Fraud and Deceit, § 174, p. 993; Restatement, Contracts, § 476, p. 908), the rule in Montana is contrary. Damage, injury, or prejudice from reliance on fraudulent representation is a necessary element of fraud whether fraud is being advanced as a ground for recovery or defense. Butte Hardware Co. v. Knox, 28 Mont. 111, 72 P. 301; Lindsay v. Kroeger, 37 Mont. 231, 95 P. 839; Ott v. Pace, 43 Mont. 82, 115 P. 37; Buhler v. Loftus, 53 Mont. 546, 165 P. 601; Stillwell v. Rankin, 55 Mont. 130, 174 P. 186; Emerson-Brantingham I. Co. v. Anderson, 58 Mont. 617, 194 P. 160; Equity Co-Operative Ass'n of Roy, Mont. v. Equity Co-Op. Milling Co., 63 Mont. 26, 206 P. 349; Courtney v. Gordon, 74 Mont. 408, 241 P. 233; Morigeau v. Lozar, 81 Mont. 434, 263 P. 985; and Mason v. Madson, 90 Mont. 489, 4 P.2d 475. [5] Plaintiff was entitled to an instruction which placed on defendant the burden of showing that she had been damaged, injured, or prejudiced by her reliance on the fraudulent representations; however, the refusal to give an instruction covering such point is not reversible error unless it was prejudicial, i.e., unless the refusal affected plaintiff's substantial rights.