
    First National Bank of Barnsville, Ohio, plaintiff in error, v. Aaron D. Yocum, defendant in error.
    1. Vendor and Vendee: fraud. False statements made by the vendor of chattols, at the time of the sale, with the fraudulent intent to induce the purchaser to accept an inferior article as a superior one, or to give an exorbitant and unjust price therefor, will render such contract of purchase voidable; but ■such false statement 'must be of some matter affecting the •character, quantity, quality, value, or title of such chattel,
    
      2. -: rescission. In order to rescind a contract for the pur. chase of chattels on account of fraudulent representations made by the vendor, the purchaser must, soon after making discovery of the faulty character of the chattels, offer to rescind the contract and put the subject-matter of the contract as near in statu quo as may be under the circumstances, or upon the trial must give a reason why the same could not reasonably be done.
    Error from the district court for Adams county. Tried below before Gaslin, -J. The action was on a promissory note given by Yocum to one Clark, in payment of a package of cloth, etc., and by Clark assigned to plaintiff. Defense: Fraudulent representations in quality of cloth, etc., that cloth was of no value whatever, etc., that Clark falsely represented to said defendant that-Benjamin Bailey and others had purchased similar packages of cloth, etc., when in truth and fact, Bailey and others had not made any such purchase. Judgment below for defendant. The bill of exceptions having been quashed for the reason that it was not settled in time, the rulings of this court upon the errors complained of were limited to the record proper.
    
      It. A. Batty, for. plaintiff in error,
    cited 1 Parsons on Contracts (5th Edn.), 465-593. 2 Kent Com., 480. Burton v. Schermerhorn, 21 Yt., 289. Furguson v. Huston, 6 Mo., 407. Burton v. Steioart, 3 Wend., 236.
    
      Hewett £ Yocum, for defendant in error.
    The instructions given by the court below are sound in law. 1 Wait’s Actions and Defenses, 608. Bumsey v. Leek, 5 Wend., 20. Small v. Smith, 1 Denio, 583. Sawyer v. Chambers, 44 Barb., 42. Van Valkenburger v. Stupplebeen, 49 Barb., 99. Skilding v. Warren, 15 Johns., 280. 1 Wait’s Actions and Defenses, 615. Sell v. Bood, 15 Johns., 230. Shepherd v. Temple, 3 N. H., 455. Burton v. Stewart, 3 Wend., 236.
   Cobb, J.

The first instruction given to the jury upon the trial of this case at the request of the defendant is in the following words: “If the jury find that Patrick Clark the payee named in the promissory note upon which this action was brought falsely represented to said defendant that one Benjamin Baily had purchased of the said Clark a similar package of goods to the package of goods sold and delivered by said Clark to the defendant, for which said promissory note was given, and that the said Benjamin Baily had paid for said package of goods so purchased by him the sum of one hundred and fifty dollars, and further find that the said Patrick Clark, said payee, made said statement to throw the defendant off his guard, and prevent the said defendant from examining said goods, and to induce said defendant to purchase said package of goods, and execute and deliver said promissory note for the same, and that the said defendant relied upon the said false representation so made by said Clark in making the purchase of said goods, and in the executing of and delivering of said promissory note, and that said false statements induced said defendant to purchase said package of goods, and execute and deliver said note, and the jury further find that said plaintiff had knowledge of said false representations so made by the said Patrick Clark before said plaintiff purchased said note, said plaintiff cannot recover on said promissory note, and they must find for the defendant.”

Does this instruction state the law correctly as applicable to any possible state of testimony? If it does, then the verdict cannot be disturbed. For as the bill of exceptions was set aside and cannot be considered, the testimony will be presumed to sustain the verdict in every particular; but if tbe law as- given to tbe jury in tbe instructions of tbe court cannot -be sustained as correct in any event, then tbe verdict may be presumed to be tbe result of tbe misleading effect of sucb instruction. This instruction does not depend or lean upon any other of tbe instructions. But it announces a clear proposition, and tells tbe jury that if they shall find it to be true they shall find for the defendant. It is easy to conceive tbe propriety of an instruction to tbe effect that bad tbe said Clark made false statements as to tbe quantity and quality of or title to tbe article purchased in a material respect, and tbe defendant bad relied upon sucb statements as true and purchased the articles, and tbe statements had proven to be false, and by reason of their falsity the defendant bad suffered loss, then, etc. But in tbe charge tbe element of loss is left out of view entirely. For all that appears in tbe logic of tbe instruction tbe trade was an entirely fortunate one to tbe defendant. Yet without regard to sucb consideration tbe jury are instructed to dispose of tbe case upon tbe issue of a question quite foreign to it.

There is no doubt that to sustain a defense for tbe cause set out or presumed in the instruction we are now considering, would require the same facts which it would require to sustain an. action for damages for deceit in tbe sale of goods. See King v. Eagle Mills, 10 Allen, 548. Let us for a moment suppose that the defendant became dissatisfied with tbe goods immediately, and desired to sue Clark for deceit in selling them to him. I think if be kept within tbe limits of this instruction in drafting bis petition be would find himself wanting at two important points. First, it could not be properly charged that tbe deceit practiced was of or concerning the goods, their quality, quantity, or title; nor, second, that tbe then plaintiff suffered damage by reason of sucb deceit.

Again, tbe instruction loses sight of the fact that in cases of the kind at bar the party upon whom deceit has been practiced has some duties to perform for his own protection, and generally in view of the rights of others. Where a person has been induced even by deceit and fraud to buy an article of merchandise at an unjust and exorbitant price, or an article of inferior quality and value, he must, soon after making discovery of the deceit and fraud and the exorbitancy of the price or the inferior quality and value of the articles, make at least some effort or offer to rescind the purchase and put even the deceitful vendor as near as may be in statu quo, at all events while the articles which are the subject of the controversy or a part of them are in existence.

These considerations are ignored by the instruction.

Eor the above reasons the judgment of the district court must be reversed and the cause remanded for further proceedings in accordance with law.

Reversed and remanded.  