
    Joseph Chipman v. N. D. Shane.
    Contracts for Purchase of Personal Property — Rescission for Fraud — Tender.
    It being the duty of a vendor of a horse, to disclose to a purchaser its true condition, when asked as to the soundness, and the vendee, .upon discovering the fraud and misrepresentation, made a tender of the horse and money back, the vendor cannot be held to complain of an enforced rescission of the contract.
    APPEAL FROM BRACKEN CIRCUIT COURT.
    June 22, 1868.
    The instructions referred to in the -opinion of the court are as follows, to wit:
    
      
      Menzies and Furber, for appellant.
    
    For plaintiff: “If the jury believe from all tbe evidence in tbis canse that the plaintiff and defendant traded borses and each delivered to tbe other tbe animals so traded, and that tbe defendant, witbont tbe knowledge and consent of plaintiff, took from tbe possession of plaintiff bis mare, then they will find for plaintiff, and in their verdict ascertain and fix tbe amount claimed in tbe petition.”
    Refused for defendant: “If tbe jury believe from all tbe evidence that the plaintiff and defendant traded borses, and plaintiff at tbe time of tbe trade fraudulently represented tbe horse to be sound and a good plow horse to defendant, be knowing him to be unsound and incapable of doing good service as a plow horse, and tbe horse was unsound and not a good plow horse, and defendant 'tendered back tbe horse and money in a reasonable time, be bad a right to reclaim bis mare, and they must find for defendant.”
    From a verdict and judgment for plaintiff, defendant appeals.
   Opinion oe the Court by

Judge Peters:

If it were not tbe duty of appellee to disclose to tbe appellant tbe true condition of tbe horse which be exchanged with him for tbe mare, knowing, as be did ,that be was unsound, and of no value, be is without legal excuse for affirming, when appellant asked him if be was a good plow horse, that be was. He was weak in tbe back, or loins as tbe evidence shows, and could not be used, as a plow horse, nor for any other service, on that account. For tbe misrepresentation, and fraud therefore of appellee, appellant was entitled to a rescission of tbe contract, having tendered tbe horse and money back so soon as be discovered tbe fraud. Consequently tbe instruction which was given on motion of appellee, was erroneous. And tbe one asked by appellant should have been given.

Wherefore, tbe judgment is reversed, and tbe cause remanded with directions to set aside tbe verdict, and award a new trial, and for further proceedings not inconsistent with tbis opinion.  