
    Jonathan Conner versus William Henderson.
    
      Where a purchaser would rescind the contract, and entitle himself to recover back the consideration paid by him, he must place the vendor in the same situation he was in before the sale.
    This was an action of the case in assumpsit, alleging that the defendant undertook to sell and deliver to the plaintiff eighty-nine casks of lime of good quality, but in fact delivered him eighty-nine casks of lime of little value, not merchantable. There was a second count much like the first; and a third count for money had and received.
    Trial on the general issue, before Putnam, J., at the sittings here after the last November term. The plaintiff produced the defendant’s bill of parcels of 89 casks of lime to the plaintiff at 10s., amounting to 148 dollars 33 cents. It was proved that the casks were branded by one D. Jenks, Jun., an inspector of lime; and there was satisfactory * evidence that the contents of the casks were of no value, being a mixture of sand and stones, and wholly unfit for use as lime.
    It was admitted by the plaintiff that he had sold, and charged to his customers, about thirty casks, which had not been paid for, except two which were sold and paid for at two dollars per cask, the plaintiff and his customers then supposing the casks to contain good lime.
    There was no evidence of a special warranty of the defendant that the lime was good; nor any evidence that he knew it was bad. The defendant was master of a coasting vessel, and had received the casks of one G. Sevey at Thomastown. to carry on freight to 
      Boston, and to sell on Sevey’s account. It did not appear, however, that the defendant disclosed his principal to the plaintiff; nor had this latter returned the casks, which he had not sold as aforesaid.
    The judge instructed the jury that if, from the evidence, they believed the defendant had not practised any fraud, they must find a verdict for him upon the two first counts; because the delivery of the casks with the inspector’s brand, together with a bill of the same, did not amount to a warranty of the contents, of which the defendant might be ignorant; that, to charge him upon those counts, they must find fraud or warranty on his part; but that, in respect to the count for money had and received, it was recoverable where the money had been received by the defendant by mistake, or whére the consideration had failed, although no fraud had been practised by him; and if they should believe, from the evidence, that the plaintiff intended to buy, and the defendant to sell, 89 casks of lime, and not 89 casks without lime; and that the casks which he delivered did not contain lime, but stones and stuff of no value, that the consideration of the contract had failed, although the defendant had no bad intentions; and the plaintiff might recover the money he had paid upon the contract, and consider it as rescinded, notwithstanding he * had not redelivered the casks before he brought his action, he being accountable to the defendant for the same.
    The jury found a verdict for the defendant upon the two first counts, and for the plaintiff upon the money count, on the ground above stated by the judge. And if, upon the facts, the plaintiff was entitled, in the opinion of the Court, to recover upon either of the counts, judgment was to be entered upon the verdict; otherwise, it was to be set aside, and the plaintiff to become nonsuit.
    
      Phinney, for the defendant,
    contended that, to entitle himself to recover on either of the two first counts, the plaintiff must prove either a special warranty, or fraud, by showing that the defendant had knowledge that the article sold by him was not what he assumed that it was. And the case finds neither of those facts. 
    
    Nor has the plaintiff rescinded the contract, or offered to return the articles sold; which is necessary to show in support of his count for money had and received.  If it should be said that the contents of the casks were of no value, the same cannot be said of the casks themselves. They were the subject of value and of property. The facts, on no legal principles, will support the general count. 
    
    
      Cummings, for the plaintiff.
    Every sale implies a warranty that the article sold is what it is delivered for, and not another substance. Here the sale was of lime, and the article delivered was stones and sand.  But if the plaintiff is not so entitled, he may recover on the money count; for he has paid his money, under a mistake of fact, for a consideration which has wholly failed. This was not a case for rescinding the contract; a right which is reserved, in ihe original agreement, to avoid the contract and return the article.
    
      
      
        Doug. 18, Stuart vs. Wilkins. — 2 Caines's R. 48, Seixas vs. Woods. — Sugden Law of Vendors, &c. 199.
    
    
      
       4 Mass. Rep 502, Kimball vs. Cunningham. — 5 East. 449, Hunt vs. Silk.—I Fonb. 380
    
    
      
      
        Cowp. 818, Power vs. Wells. — 2 Burr. 1005, Moses vs. M'Ferlan.
      
    
    
      
       13 Mass. Rep. 139, Bradford vs. Manly.
      
    
   Per Curiam.

The evidence reported will not maintain the action on either of the first two counts. There was no express warranty respecting the quality of the article. Neither can the plaintiff recover on his count for money * had and received. If he would have rescinded the contract, and so have entitled himself to a return of the money paid, it was necessary that he put the defendant in the same situation he was in before the delivery of the article. This was settled in the case of Kimball vs. Cunningham; and although the principal subject of the contract, in the present case, may be presumed, from the evidence reported, to have been absolutely of no value, and so the returning of it would have been but an idle act, yet the casks were of some value, and should have been restored, if the plaintiff would treat the sale as a nullity, and demand his money as paid without consider- , ation.

We think, however, that an action may be framed, in which the plaintiff may recover, on the evidence reported. He may therefore file a new declaration, on which a trial may be had ; but he cannot have his costs arising prior to the present time 
      
      
         Vide Gray vs. Cox, 4 B. & C. 108. — Jones vs. Bright, 4 Camp. N. P. 144. —4 Kent, Com. 479, 480, 2d ed.
     