
    Stephen Harman vs. George B. Sanderson.
    It is a general rule, that in an action for the price of a chattel, the vendee may prove in defence deceit on the part of the vendor, and that the article is of no value ; or he may show a partial unsoundness in mitigation of damages.
    A purchaser cannot, by his own act alone, return and revest the property in the seller, and recover the price when paid, on the ground of a total failure of consideration, nor, by the same means, protect himself from the payment of the price on the same ground.
    In an action for the price of a chattel, proof that the representations of the seller at the time of the sale were fraudulent, and the article of no value, will alone warrant a verdict for the defendant; however far the evidence may extend in mitigation of damages.
    In error from the circuit court of Monroe county, Hon. Stephen Adams, judge. ■
    This was an action of assumpsit, founded on the promissory note of the defendant. The declaration was in the usual form, and the defendant pleaded non assumpsit. On the trial the plaintiff read to the jury the note sued on, and rested his case. The defendant then introduced as a witness one Sparks, who testified, that the note sued on was given for a cotton-spinning machine which he, as the agent of the plaintiff, sold to the defendant, that at the time of the sale he told the defendant the machine was a good one, and would run lighter than Pierce’s machines, and with careful management and being kept in repair, would last eight or ten years. Witness further testified that at the time of sale the machine was a good one; but that after the commencement of this suit he heard it was out of order, and he went to the house of the defendant, and that the brother of the defendant, the defendant being absent, refused to let him see it. Several other witnesses were examined on behalf of the defendant, who proved in substance that the machine was inferior to the machines of Pierce; that it would sometimes spin. coarse and fine thread at the same time, and was worthless for the purposes for which it was purchased. The jury returned a verdict in favor of the defendant. The plaintiff then entered a motion for a new trial, which was overruled by the court, and the plaintiff removed the case to this court by writ of error.
    
      William Yerger, for plaintiff in error.
    It was not competent for the defendant to defeat a recovery on the note, without he returned or offered to return the machine. 3 Esp. N. C. 83; 5 East, 452; 4 Mass. R. 502; 7 Johns. 324. See also Chitt. on Bills, 89, 8th Am. ed. and cases cited in note, where this rule is clearly laid down, and also that a partial failure of consideration, where it is unliquidated, cannot be used as a defence to an action on a note.
   Mr. Justice Thacker

delivered the opinion of the court.

The plaintiff in error instituted an action in the circuit court of Monroe county, upon defendant’s promissory note. The defendant pleaded non assumpsit; and, in order to show a failure of consideration, proved that the note, upon which the action was instituted, was given to secure the purchase-money of a cotton-spinning machine, which, .at the time of the sale, was represented by the plaintiff’s agent, of whom it was purchased, that it would run lighter than Pierce’s machines, and with careful management, would last for eight or ten years. It was also proved, that the machine was worthless for the purposes for which it was purchased. On the other hand, the plaintiff proved that the machine was a good one at the time of its sale. A verdict and judgment were rendered for the defendant, whereupon a motion for a new trial was made and overruled.

It is a general rule, that in an action for the price of a chattel, the vendee may prove in defence, deceit on the part of the vendor, and that the article is of no value; or, he may show a partial unsoundness in mitigation of damages. Beecker v. Vrooman, 13 Johns. 302 ; Sill v. Rood, 15 Ibid. 230. The rule that allows the breach of the warranty to be given in evidence, in mitigation of damages, arises from the desire to avoid circuity of action. Street v. Blay, 2 Barn, and Adol. 456; Cary v. Gruman, 4 Hill, 625. It is also a general rule that a purchaser cannot, by his own act alone, return and revest the property in the seller, and recover the price when paid, on the ground of a total failure of consideration, nor, by the same means, protect himself from the payment of the price on the same ground. Towers v. Barret, 1 T. R. 133; Payne v. Whale, 7 East, 274; Street v. Blay, 2 Barn, and Adol. 456. If the article is of any value, its retention by the vendee is his acknowledgment to the vendor of his liability to him to that extent. In the present case, the record does not show that the representations at the time of the sale were fraudulent and the machine of no value, which alone could have warranted a verdict for the defendant, however far the evidence might have extended in mitigation of damages.

Judgment reversed and new trial granted.  