
    D. W. Fearis v. Andrew F. Blount.
    Abandonment of Contract for Exchange of Personal Property.
    Henry and Eearis having traded personal property, upon demand made on Eearis, he refused to deliver, claiming a fault in the condition of the property delivered to him, and' would not deliver his property exchanged only qu a payment of $5.00. Held, that Henry rightfully regarded the trade as rescinded, and recovered possession of his mare.
    APPEAL FROM LEWIS CIRCUIT COURT.
    January 18, 1870.
   Opinion of the Court by

Judge Williams:

Patrick Henry having traded a mare to Fearis for a calf and mule colt delivered the mare and had the calf and colt put into the hands of Fearis’ son living with him. Henry traded the calf and colt to Blount who went with Henry’s order to get them, but Fearis insisted that the mare was worse diseased than Henry had represented her and he would not stand to the trade unless Henry would pay him five dollars and refused to let Blount have the calf.

Henry residing some sixty miles distant from the nighborhood of Fearis and Blount had started home, but Blount followed him and got an order for the mare. When Blount returned Fearis had gone out into the neighborhood with the mare, when he returned she was turned into his pasture from which she was taken and finding Blount in possession of her he brought this suit to recover her, which having been decided against him he appealed to this court.

If a fraud was practiced on him he had the unquestionable right either to abandon the contract and retain the calf and mule, or he could abide the contract, deliver them and sue Henry for the fraud.

Having refused to deliver the j>roperty traded for the mare and having announced to Blount that he would not abide the trade unless Henry would pay him five dollars, authorized Henry to regard the trade as abandoned and to reclaim his mare, an4 the evidence authorized the jury to consider the trade as rescinded, rather abandoned.

G. M. Thomas, Throop, for appellant.

Lindsey, for appellee.

Wherefore the judgment is affirmed.  