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sequeutly, Mr. Lodge could not have failed to see that the Edison Company had rescinded its license for fraud and breach of condition, and that the Patents Connpany refused to issue a new license because the old one, for the same reasons, had been rescinded and had terminated. This being so under the authorities the defense of fraud to a prayer for specific performance is proper.
In Amer. & Eng. Enc. of Law, Vol. 14, p. 164, is the following:
" When a party has rescinded a contract because of fraud he has sevt>ral remedies at law, to either of which, and sometimes to more than one of which, he may resort, according to the circumstances. He may wait until the other party brings an action against him to enforce the contract, or to recover damages for a breach thereof, and then set up the fraud as a defense, pi'ovided he has not 80 acted upon the contract aftei the discovery of the fraud as to bar his right to rescind."
We are not sure from certain language used in appellant's brief whether appellant is contending that defendant's should have invoked the aid of a court of equity affirmatively to cancel the Edison Company license, instead of rescinding and setting up fraud as a defense. The latter is, of course, an entirely proper procedure.
"Instead of afifirming the contract the party defrauded may * * * rescind and set up the fraud as a defense to a suit brought against him on the contract, either at law for damages or in equity for specific performance." 9 Cyc, 433.
Chute vs. Quincy, 156 Mass., 189.
Friend vs. Lamb, 152 Pa. St., 529.
Brown vs. Pitcairn, 148 Pa. St., 387.
Equity will refuse specific performance when there is fiaud.
In Schneider vs. Schneider, 125 la., page 1, it was said at page 16:
" It requires a less flagrant case of fraud or undue advantage to prevent specific performance than to recover damages. Any trace of unfairness