
    William Ferguson vs. Thomas Oliver.
    Under the plea of non assumpsit to a suit on a promissory note, the defendant may set up a breach of warranty made of a horse for which the note was given, provided the defence extends to a total failure or want of consideration of the note and constitutes a bar to the whole recovery.
    F. and O. exchanged horses, and F. gave 0. his note for fifty dollars to hoot, in the exchange ; 0. warranted his horse to be the colt of a particular sire, and three years of age; 0. sued F. on the note in assumpsit, F. plead the general issue, and proved that the horse 0. traded him was not the colt of the horse he was warranted to be’the colt of, and was, at the time of the exchange, five years old, and was not worth as much by forty-five dollars as the horse F. exchanged for him. Under this state of pleading and proof it was held, that F. was entitled to a verdict in his behalf, and that 0. could not recover on the note ; that it was not necessary for F. to have offered to return the horse to 0. or give him notice to take it away.
    The cases in which a party must return or offer to return the property in a reasonable or limited time, are cases where he wishes to rescind the sale and recover hack the whole price paid, or cases of conditional sales, where the thing about to be sold is taken on trial with liberty to the purchaser to return it, if he dislikes it, in a stipulated period.
    It seems that if an objection to the competency of a witness be not taken in the court below, it will not be noticed by the high court of errors and appeals.
    In error from the circuit court of Adams county; Hon. Thomas A. Willis, judge, presiding.
    Thomas Oliver sued William Ferguson before Robert W. Wood, Esq., a justice of the peace for Adams county, on a note for fifty dollars. The justice gave judgment against the defendant, and he appealed to the circuit court of the county. In this court a declaration in assumpsit was filed, the general issue plead, and a trial had, which also resulted against Ferguson.
    
      From a bill of exceptions signed at the trial, these facts appear.
    It was proved that the consideration of the note sued upon, was a trade or exchange of horses between, the plaintiff and defendant; that upon the exchange, the horse received by defendant from plaintiff was warranted by plaintiff to be only three years old, and an Ariel colt, sired by Ariel; that the inducement on the part of defendant to exchange was the warranty ; that the horse was in fact about five years old, and not an Ariel colt; as Ariel had been dead eight or ten years; that the difference between the horse as warranted, and as he really was, was about seventy-five dollars. That the horse Ferguson traded was worth, or cost one hundred and forty-five dollars; and the horse he received from Oliver, was worth over one hundred dollars. On this testimony the court instructed the jury for the plaintiff, “ that a promissory note always imports that a valuable consideration was given for the same; and that to defeat a recovery on the same by the maker, the defendant must make a clear showing that the same was given without"consideration; or that the same has failed. That the jury must have evidence before them that the defendant, on discovering that the horse was not of the description warranted, abandoned ownership and gave notice to the plaintiff of the defect of the horse, or they must find for the plaintiff.”
    The court refused to give the following instruction for the defendant, to wit: “ If the jury believe from the evidence that the consideration of the note sued upon in this cause, was an exchange of horses between the plaintiff and' defendant; and that the horse received by the defendant from the plaintiff was warranted by the latter to be an Ariel colt, and only three years of age, and the said horse was not in fact an Ariel colt, and was five years old instead of three; and that the failure of the warranty in these respects made a difference in the value of said horse of the amount of the note sued upon, then the consideration of such note hasfailed, and they must find for the defendant.”
    The defendant excepted to the action of the court in giving and refusing to give these instructions ; and prosecutes this writ' of error.
    
      Davis and Cox, for plaintiff in error.
    1. To prevent circuity of action and to avoid the necessity of a cross suit, it is competent for the vendor of merchandise, or' other chattels, in an action against him by the vendor for the purchase-money, to show a breach of warranty, either in bar or in mitigation of damages, as the facts may warrant. 1 Serg. & Rawle, 477; Long on Sales, 217; 7 East R. 480, 481, note; 4 Wend, 489; 8 Wend. 109.
    2. There is no difference in this respect between a warranty on the sale or on the exchange of chattels. The only question that can arise is one of fact, namely, whether a warranty was made. This being established, the same legal results follow as in the other instance.
    3. The instruction asked for by the defendant below, should not have been rejected, as the facts upon which it was predicated, and which (as by reference to the bill of exceptions) were clearly proved, constituted a total defence. 10 Wend. 513; Judd v. Dennison, 4 Wend. 489; McAllister v. Real, confirmed, in error, 8 Wend. 109; 13 Wend. 277; 13 Johns. 302; 18 Johns. 141.
    4. The instruction asked for by the plaintiff below, viz., the second instruction, should not have been granted. It was in palpable violation of law and strongly calculated to mislead the jury, inasmuch as it required the defendant, to sustain his de-fence, to prove that upon discovering the defect of the horse, or, in other words, the breach of warranty, he abandoned ownership and gave notice, to that effect, to the plaintiff.
    Neither the abandonment nor the notification was at all requisite. Even in an action by the vendee against the vendor upon a breach of warranty, it is not necessary to show a return, or an offer to return the chattels. It is only where the vendee rescinds the contract and institutes suit to recover back the whole price, that such return or offer to return, is required. 18 Wend. 425; Waring v. Mason, 12 Wheaton, 183; Thorn
      
      ton v. Winne, 2 B. &. A. 456; Street v. Blag, 1 Stark. 107; Okell v. Smith, 12 Wend. 566; Boorman et al. v. Jenkins et al., 18 Johns. 141; King et ál. v. Paddock, 7 Gill and Johns. 407.
    5. The plaintiff below (Oliver) also filed a bill of exceptions to the admission of the defendant (Ferguson) as a witness in the canse. As the decision below was in favor of Oliver, we do not know that this exception can be here taken into consideration. But if it can, we then reply briefly that the admission of the witness was in conformity with How. & Hutch. 437, § 49, which specially provides that either party, upon an affidavit of want of evidence (which affidavit in this cause, as by reference, was made or waived) can be admitted to testify in his own behalf.
    And by How. & Hutch. 429, sect. 19, all appeals from a magistrate to the circuit court are to be tried de novo upon their merits. The objection, in fact, to the defendant as a witness, was grounded not so much upon his being a party to the suit and testifying in his own behalf, as upon the principle that a party to negotiable paper shall not be allowed to impeach, the legality of its consideration. The principle, as stated, is well settled, but has not the remotest application to this case. There was no attempt to prove by Ferguson that the consideration of the note was illegal, or otherwise, in its inception, invalid. His testimony went to show merely, what the consideration was, or that it had failed. Walton v. Shelley, 1-Term R. 296; Bank of United States v. Dunn, 6 Peters R. 51.
    
      L. Madison Day, for defendant in error.
    1. The consideration of anote given for an article warranted, cannot be impeached in an action on the same, unless the purchaser on discovering the failure of the warranty, restored the article warranted or gave notice of the same to vendor.
    In this case there was no abandonment of ownership of the horse for which the note was given, or offer to restore, or notice given to Oliver, of the failure of the warranty. '
    In Butler v. Blake, 2 Harris & Johns. R. 35D, it was held, that if a vendor warrants an article, the vendee on discovering the defect must abandon ownership (except as agent) and give notice to the vendór, in order to sustain an action 'on the warranty.
    So where a party has been led to enter into a contract, by the fraud of the other party, ón discovering the fraud he must at the earliest moment after the discovery return whatever he himself has received upon the contract, in order to recover back whatever he has advanced upon the contract. Masson v. Bovet, 1 Denio R. 69.
    2. Even a court of equity will not set aside a contract, for fraud, if the party after discovering the fraud stilL retains the property and uses it as his own, and makes no offer to restore it in a reasonable time. 2 Mon. R. 18, 19.
    The principle of these cases cannot be distinguished from that which must govern the one at bar. Therefore it was not error in the circuit court to instruct the jury as asked by the plaintiff’s counsel. Nor was it error to refuse to instruct the jury, as asked by defendant’s' counsel, under all the circumstances of the case.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an action upon a promissory note for fifty dollars, brought into the circuit court of Adams county by appeal from the judgment of a justice of the peace.

On the trial below, the defendant in that court showed that the consideration of the note was the difference or boot given by him to the plaintiff there in an exchange of horses; that the plaintiff warranted the horse which he delivered in exchange to the defendant to be an Ariel colt, that is, sired by the horse Ariel, and to be but three years old, but that in point of fact, the horse was not an Ariel colt, and was five years old; and that also, in point of fact, the horse was not as valuable as the horse delivered in exchange to the plaintiff by the defendant by the sum of forty-five dollars, and that the loss to the defendant by the failure of the warranty was about seventy-five dollars.

Upon this state of facts, the court below refused to charge the jury for the defendant as follows, to wit: —

“ If the jury believe from the evidence that the consideration of the note sued upon in this cause, was'an exchange of horses between the plaintiff and defendant, and that the horse received by the defendant from the plaintiff was warranted by the latter to be an Ariel colt and only three years of age, and that said horse was not in fact an Ariel colt, and was’ five years old instead of three, and that the failure of the warranty in these respects made a difference in the value of said horse of the amount of the note sued upon, then the consideration of such note has failed, and they must find for the defendant.”

And the court gave the following charge upon the application of the plaintiff.

“That a promissory note always imports that a valuable consideration was given for the same, and that to defeat a recovery on the same by the maker, the defendant must make a clear showing that the same was given without a consideration or that the same has failed ; that the jury must have evidence before them that the defendant on discovering that the horse was not of the description warranted, abandoned ownership and gave notice to the plaintiff of the defect of the horse, or they must find for the plaintiff.”

Under the plea of non assumpsit which was pleaded in this action, although no notice of special defence was given, the defendant had a right to set up a breach' of warranty made upon the exchange of the horses, and for which the note was giyen in part consideration, provided that defence extended to a total failure or want of consideration of the note, and worked in bar of the whole recovery. The facts show that a total de-fence was in view, and that the evidence of the defendant was offered with that design. 1 Chitty Pl. 47; Brewer v. Harris, 2 S. & M. 88; Maverick v. Gibbs, 3 McCord, 315; King and Mead v. Paddock, 18, J. R. 143. The admissibility of such a defence, springing out of the transaction which gives birth to the cause of action, has arisen from the obvious policy that it prevents a multiplicity or circuity of action.

The point taken for error in the charge granted to the plaintiff has been repeatedly decided. In the case of Steigleman v. Jeffries, 1 S. & R. 477, which was an action upon a promissory note given for the price of a quantity of buhr-stones, the de-fence was that the stones were warranted of good quality, and that they proved not to be as warranted. The court of common pleas charged the jury that the defendant could not avail himself of the breach of warranty, unless he had returned the stones, or given notice to the plaintiff to take them away. But the supreme court of Pennsylvania, held that the defendant could avail himself of the defence without returning the articles or giving notice to the plaintiff to take them away. See also, Borrekins v. Bevan and Porter, 1 Rawle, 23; Cozzens v. Whitaker, 3 Stew. & Porter, 322; Waring v. Mason, 18 Wend. 425.

The cases in which a party must return or offer to return the property in a reasonable or limited time, are cases where he wishes to rescind the sale and recover back the whole price paid, or cases of conditional sales, where the thing about to be sold is taken on trial, with liberty to the purchaser to return it, if he dislikes it, in a stipulated period. j

It will hence be seen that in this case the court below erred in refusing the defendant’s charge and in granting that of the plaintiff.

The plaintiff in error adverts in his brief to a question as to the admissibility or competency of the defendant below, Ferguson, as a witness in the cause. The record does not show that any such point was made upon the trial, and therefore it can receive no comment from this court.

Judgment reversed, and new trial awarded.  