decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law. (Citing cases.)'
We think that this area of the law is dominated by the sweep of federal statutes and therefore this question is governed by federal law.
Having determined that federal law would control the question of the necessity of tender in this case, we searched for federal law on the subject and were unable to find any cases directly in point.
Corpus Juris Secundum indicates that the cases from all jurisdictions, state and federal, are in hopeless disagreement. See 76 C.J.S. Release § 37. The rule as stated by the Restatement of the Law of Contracts, Section 480, is in part as follows:
'When Offer to Restore Performance Received Is a Condition of the Power to Avoid
'(1) The power of any party, other than the United States or one of them, to avoid a transaction for fraud or misrepresentation is conditional on an offer made promptly after acquiring knowledge of the fraud * * * to return the amount of any money * * * received as part of the transaction * * * except as stated in Subsection (2) * * *
'(2) A failure to return or offer to return performance received in accordance with the rule stated in Subsection (1) does not preclude avoidance if the performance
'* * * *ilu
'(c) is merely money paid, the amount of which can be credited in partial cancellation of the injured party's claim * * *'
We think the situation in the case at bar is covered by the exception to the general rule stated in Subsection 2 of Section 480. Should the plaintiffs ultimately obtain a judgment against the defendants, the latter could be protected by our crediting the amount they paid for the release against the amount of that judgment. For these reasons, we must reject the third argument of the defendants and hold that the plaintiffs are not barred from asserting fraud by their failure to tender back the consideration for the release.
IV. Applicability of the Statute of Limitations.
The defendants' final contention is that summary judgment should be entered in favor of all defendants on all causes of action accruing prior to four years before the filing of the complaint in this case. The complaint was filed on September 11, 1959, and the new statute of limitations contained in the antitrust statutes is four years (15 U.S.C.A. § 15b). Plaintiffs counter this argument by pointing out the general principle of law which states that where a suit seeks to obtain relief against a fraud, a statute of limitations does not begin to run until discovery of the fraud.
Neither plaintiffs nor defendants have cited any cases in support of their positions on this point, and it was mentioned only briefly in their oral arguments. We think the question of the applicability of the statute of limitations should not be decided at this time. In the first place, the question of whether or not any fraud was perpetrated upon the plaintiffs has not as yet been decided; and if that issue is decided adversely to the plaintiffs, we would not reach the question of the effect of the fraud on the running of the statute. In the second place, there is some division of authority on the question of whether actual fraud would prevent the running of the statute of limitations in this kind of case. See Austrian v. Williams, D.C.S.D.N.Y.1948, 80 F.Supp. 437; Winkler-Koch Engineering Co. v. Universal Oil Products Co., D.C.S.D.N.Y.1951, 100 F.Supp. 15; Carr-Consolidated Biscuit Co. v. Moore, D.C.M.D.Pa.1954, 125 F.Supp. 423; Fravel v. Pennsylvania R. Co., D.C.D.Md.1952, 104 F.Supp. 84; and Larson v. Port of New York Authority, D.C.S.D.N.Y.1955, 17 F.R.D. 298. We think that if the case progresses to a point where this question must be decided, the issues presented deserve full briefs and arguments by counsel before we render a decision.
For these reasons, we must reject the fourth argument of the defendants, and consequently deny the motions for summary judgment of the defendants Food Fair Stores, Inc., Myer Marcus, Arthur Rosenberg, and Louis Stein.