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.
Fraud cannot be predicated upon a misrepresentation as to the legal effect of a written instrument, or as to when it will expire. 12 R.C.L. 295; Rheingans v. Smith, 161 Cal. 362, 119 P. 494, Ann. Cas. 1913B, 1140 and note; Choate v. Hyde, 129 Cal. 584, 62 P. 118; Randall v. Scott, 70 Cal. 514, 11 P. 779; Naunnan v. Sutter, 81 Cal. 6, 22 P. 515; Lee v. McClelland, 120 Cal. 147, 52 P. 300. BURR, J.
" 39 Cyc. p. 1293. In Draft v. Hesselsweet, 194 Mich. 604, this court held that where plaintiff made payments upon a purchase after he knew he had been defrauded, he waived his right to rescind on the ground of fraud, citing, State Bank of Iowa Falls v. Brown, 142 Iowa, 190 ( 119 N.W. 81, 134 Am. St. Rep. 412); Ruhl v. Mott, 120 Cal. 668 ( 53 P. 304); Lee v. McClelland, 120 Cal. 147 ( 52 P. 300); Annis v. Ferguson, 84 S.W. 553 (27 Ky. Law Rep. 56); Hurt v. Miller, 95 Va. 32 ( 27 S.E. 831); McQueen v. Burhans, 77 Minn. 382 ( 80 N.W. 201); Bennett v. Hickey, 112 Mich. 379, 382; Speicher v. Thompson, 141 Mich. 654; Parkyn v. Ford, 194 Mich. 184. But aside from this question we think the admissions of the plaintiffs themselves upon the trial showed that they did not leave the place on the grounds alleged in the declaration, but they left the farm because they fell into disagreement among themselves, and because of their lack of funds to meet their payments, and their ignorance of the methods of farming in this country.
This question was not posed by the defendants, appellants herein, but was raised by the plaintiff-appellee by way of defense — there was no cross-appeal — but we must dispose of it before we can justify consideration of the second question. The Supreme Court of Ohio has as yet not spoken upon the question presented here. The exact question was before the court in the case of Lee v. McClelland-Kennard Co., 166 Ohio St. 378, 142 N.E.2d 529. In that action the Supreme Court dismissed the appeal as of right but granted the motion to certify the record on May 1, 1957, but before the case was submitted to the court upon its merits, it was settled and dismissed by agreement of the parties on October 16, 1957.