
    Porter Kimball versus William Cunningham, Jun.
    If one would avoid a sale or exchange of a chattel, for fraud practised by the other party to the contract, he must not retain any part of the consideration he received upon the sale or exchange.
    Trover for two steers. Upon not guilty pleaded, the action was tried at an adjournment of the last September term in this county, before Sedgwick, J.
    Upon the trial, it was agreed that the defendant had converted the steers to his own use. To prove the plaintiff’s property, it was in evidence that the plaintiff and defendant had agreed to exchange horses; and that the bargain was, that the defendant agreed to deliver the steers, and a note of one Phillips, together with his own horse, to the plaintiff, and was to receive the plaintiff’s horse, and to have his own note, which the plaintiff held, delivered up to him; that the bargain was executed, the plaintiff selling his horse as a sound one, and the defendant agreeing to pasture the steers a week for the plaintiff.
    * The defendant, finding the horse he had received [*503] was unsound, and having evidence that the plaintiffknew this at the time of the exchange, returned the horse, and refused to deliver the plaintiff the steers. Since the commencement of this action, the defendant had instituted a suit against the plaintiff for selling him an unsound horse as a sound one, and this suit was pending at the time of the trial.
    The defendant offered to give in evidence, in his defence, the plaintiff’s fraud in the exchange of the horses, and his having returned the plaintiff’s horse, thereby to defeat the plaintiff’s property in the steers, which had been given as boot. This evidence was rejected by the judge, and the jury were directed that, if they believed the contract between the parties to be an entire one, and that it was a contract operating, according to the true intention of the parties, as a sale of any of the articles, which were the subjects of it, then the property of the steers was thereby vested in the plaintiff, and he was of course entitled to recover; but if they did believe that the contract was not an entire one, for which, the judge intimated, there seemed to be no evidence, or that, if it was entire, yet, according to the intention of the parties executory, then the jury ought to find a verdict for the defendant.
    A verdict was rendered for the plaintiff, subject to the opinion of the Court upon the judge’s report; and the action stood continued to this term.
    
      And now, T. Bigelow, for the defendant,
    moved that the verdict be set aside, and a new trial granted, —
    1. Because the judge rejected evidence which would have proved fraud in the plaintiff; and, this being established, the party guilty of it loses every right he might otherwise have had under the contract, if the other party will avail himself of it, whether the contract be entire or consist of several and distinct parts, and whether the warranty be express or implied only.
    2. The intimation of the judge to the jury that the contract must be taken to be either wholly executed or wholly executory, tended to mislead them. A contract may be partly executed and partly executory, and that was the fact here. So far as con- [ * 504 ] cerned the steers in question, it was executory, the * defendant not undertaking to deliver them until a week should have elapsed. If, in the mean time, fraud or any other circumstance vacating the contract before its execution, as the failure of the consideration, came to the knowledge of the defendant, he had a right to avail himself of it. 
    
    3. It was wrong to admit evidence of the commencement of the defendant’s action against the plaintiff. That action, being posterior to the one now before the Court, can have no bearing on the rights of the parties here.
    
      A. Bigelow, for the plaintiff,
    contended that the defendant must affirm or disaffirm the contract in the whole. He cannot be permitted to affirm one part and disaffirm the remainder. And by bringing his action for the fraud, he has elected to affirm the contract. Further, if he would disaffirm the contract, he should have delivered up the plaintiff’s note which he held, and have demanded his own horse to be returned to him, neither of which appears in the case.
    As to the second objection, Bigelow cited % Black. Comm. 418 but the Court suggested that he need not pursue that point.
    As to the third objection, he insisted that the evidence was properly left to the jury, and the effect of that evidence was to show that the defendant had chosen to consider the contract as in force, and of consequence the steers are the property of the plaintiff, and the verdict is right.
    
      F. Blake, on the same side,
    enforced the arguments of A. Bige low, and cited the case of Power vs. Wells, Cowp. 818.
    
      
      
        Owenson vs. Morse, 7 Term Rep. 64
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

[After reciting the report of the judge.] When a horse is sold upon an implied warranty that he is sound, and at the time of the sale the vendor knows that he is not sound, this is such a fraud in him as will render the contract void, at the election of the vendee. If he chooses to consider the contract as void, he must return the horse within a reasonable time, and then he may maintain a general indebitatus assumpsit for the purchase money, as money had and received to his use. If he had exchanged horses and given * money as boot, he may not [ * 505 J only maintain that action for his money, but also trover for the horse he parted with in exchange.

But he ought not to retain any part of the consideration he received upon the sale or exchange; as, if in the exchange he received money in boot, he ought to return, not oidy the unsound horse, but also the money he received. For he shall not compel even the fraudulent seller to an action, to recover back the property he has parted with in the exchange. This rule applies only to the cas.e of an implied warranty on a fraudulent sale or exchange. But the party defrauded is not obliged to consider the fraudulent contract as void, but may, at his option, maintain an action of deceit or a special assumpsit, and recover damages (if he has sustained any) for the fraud. If the warranty be express, his remedy, either on a fraudulent sale or exchange, must be by an action of deceit or by a special assumpsit.

In the present case, the evidence offered was to prove a fraudulent exchange, with an implied warranty that the horse was sound, when the vendor knew that he was unsound. The defendant had, therefore, his option to consider the bargain void. If he chose so to consider it, he ought to have returned all the property that he received on executing the contract. He ought to have returned the horse, and his own note that was delivered up to him by the plaintiff; or, if cancelled, the money to pay it. Had this been done, we are satisfied that he might have maintained trover for his horse, and for Phillips’s note, which he delivered to the plaintiff, and the plaintiff’s property in the steers would have been disannulled.

But, in fact, he still has the benefit of the note, which the plaintiff delivered him, to which he can have no claim, if the contract be void. For this reason, we are satisfied that he cannot defend himself in this action upon the ground that the exchange was void.

There is another important fact stated — that after ne returned the unsound horse, he commenced an action of deceit against the plaintiff, to recover damages for the fraud, which action is still pending; and not an action of trover for his * horse, [ * 506 ] which he had delivered the plaintiff. By this action, it is also very clear that he has made his election to consider the contract as subsisting, and to recover damages for the breach of it. And if the contract be considered as subsisting, the plaintiff’s property in the steers is not annulled, and the evidence was very properly rejected.

The verdict must stand, and judgment be entered accordingly, 
      
      
         [Conner vs. Henderson, 15 Mass. Rep. 319 and note. — Bradford vs. Manley, 13 Mass. Rep. 139.— Breed vs. Blandford, 2 Y. & J. 284.—Brinley vs. Tibbetts, 7 Gr. 70. — Campbell vs. Heming, 3 N. & M. 834. — Gompertz vs. Denton, 1 Cr. & M. 207. — Street vs. Blay, 2 B. & Ad. 463. — James vs. Cotton, 5 M. & P. 26. — Oxendale vs. Oliver, 9 B. & Cr. 386. — Adlard vs. Booth, 7 Cor. & P. 108. — Bragg vs. Cole, 6 Moore, 114. — Weaver vs. Sessions, 6 Taunt. 164. — Mavor vs. Pye, 3 Bing. 286. — The purchaser who has received and accepted a specific chattel, has no right to return it, unless there be a condition in the contract authorizing it, or the vendor has consented to it, or there be fraud. But the mere taking a thing made to order, or sold by sample, for the purpose of examination, will not be treated as a waiver of the right to return — Long on Sales, by Rand, 213—219, 240. — Ed.]
     