| Ill. | Jan 15, 1869
delivered the opinion of the Court:
King exchanged his horse for a mare belonging to the plaintiff in error, Daniel Ellington, defendant in the court below. The trade was made with Addison Ellington, acting as agent for his father, Daniel. The mare proving unsound, King, about two weeks after the trade, took her back to Addison, who was living with an uncle, a mile and a-half from his father, and requested him to take her and return the horse. Addison replied, his father had the horse, and plaintiff must go to him. This plaintiff did not do, and did not at any time offer to the defendant to return the mare or demand his horse. King brought replevin and obtained a verdict and judgment.
On the trial, the court gave the following instruction for the plaintiff:
“If the evidence shows the defendant, Ellington, recognized the agency of his son in making the trade, then a demand from the son, whose agency was recognized and continued by defendant, with power to deliver said horse, w-as all the demand necessary in order to authorize a recovery in replevin.”
This instruction is seriously faulty, in assuming, as it does, that the agency of the son continued after the trade, so as to authorize him to rescind the contract. .The mere fact that the father had authorized the son to sell the mare did not also authorize him to rescind the contract at a subsequent period, and after the father had received possession of the horse taken in exchange.
The court also erred in so qualifying the instructions asked by the defendant as to dispense with proof of a demand in case defendant had obtained the horse by fraud. If such was the fact, the plaintiff had the right to rescind the contract, but he could only do so by offering to return what he had received, and demanding what he had given. He could not retain the mare and at the same time recover the horse. Buchanan v. Horney, 12 Ill. 338.
The judgment is reversed and the cause remanded.
Judgment reversed.