| Miss. | Oct 15, 1887
delivered the opinion of the court.
This is an action by attachment brought by the appellee against the appellant to recover damages for the breach of a warranty in the sale of a jack.
The ground of attachment alleged is, that the defendant “fraudulently incurred the obligation for which suit is brought.” At the return term the defendant traversed the ground of attachment, and on this issue a verdict ivas found in favor of the plaintiff.
On the trial of this issue, evidence was introduced tending to show that the plaintiff, after having notice of the falsity of the warranty, and after he had for some time held possession of the jack, paid to the defendant the purchase price. On the other hand, the plaintiff introduced evidence tending to show that while he had been in possession of the jack, (during which time he refused to serve mares, by reason of which the plaintiff doubted his value,) he was further deceived by the defendant and his agent, who secretly manipulated and physicked the jack, thereby inciting him to service, by which plaintiff was relieved of his doubts, and that it was while this deception continued that he made the payment of the purchase price. It was further shown that some weeks after payment had been made, the plaintiff tendered the jack to defendant and demanded restitution of the purchase price, and this tender being declined by the defendant, the plaintiff placed the jack in a livery stable as the property of defendant, and some time after this,
The appellant contends that the plaintiff, by paying the purchase price after knowledge of the falsity of the warranty, waived the fraud and thereby lost all right of action resting on the same; and further, that by disposing of the animal to the stable keeper in payment of the feed bill, he disabled himself from returning it to the defendant, and is therefore precluded from rescinding the contract.
Neither of these positions is fatal to the right of action asserted by the plaintiff. On the trial of the issue traversing the ground of attachment, and also upon the issue in chief, the jury was distinctly informed that if the plaintiff consummated the purchase after notice of the falsity of the facts warranted, he could not rescind. By its verdict the jury negatived the fact of such knowledge, and for this finding there is ample support in the testimony.
It is not true that one who is the victim of a fraud, and who, discovering the facts, rescinds the contract, and offers to return the property, which is refused by the seller, is obligated to keep the property for the seller until the end of the controversy between them* so that he may return it to him upon recovery of the purchase priee. A purchaser who is defrauded by the seller, and who, in the lawful exercise of his right to rescind tenders the property to the seller, who refuses to receive it, is under no other obligation to him than to retain the property as his agent and bailee, and after notice of his intention, may, in good faith, dispose of the same for account of the owner. Swann v. West, 41 Miss. 104" court="Miss." date_filed="1866-10-15" href="https://app.midpage.ai/document/swann-v-west-8257770?utm_source=webapp" opinion_id="8257770">41 Miss. 104.
If he sells the property otherwise than in good faith, the extent of his liability would be the fair market value of the same.
We assent to the proposition advanced by appellant that a plaintiff may not attach for one cause of action, and having sustained his writ, declare for another. Wright v. Snedecor, 46 Ala. 92" court="Ala." date_filed="1871-06-15" href="https://app.midpage.ai/document/wright-v-snedecor-6508036?utm_source=webapp" opinion_id="6508036">46 Ala. 92 ; Ligon v. Bishop, 48 Miss. 527.
' But there is no variance between the cause of action for which the attachment was sued out, and that declared in the declaration.
The case was, we think, fairly submitted to the jury by the instruction of the court, and the evidence supports the verdict on the attachment issue, and measurably that on the issue in chief. On the latter issue the recovery was somewhat too great, in that nothing was allowed to the defendant as the value of the jack. The plaintiff, as we have said, might, after tender of return and refusal to accept by the seller, have either kept the animal until after trial, as the agent of the owner, or might, in good faith, after notice to the owner, have sold the animal for his account. But it was not within his power to give it away or to wantonly sacrifice it by turning it over to the keeper of the stable for the price of a few days’ keep. Having done so, the measure of his recovery is the difference between the purchase price paid by him and the reasonable value of the jack, less the expense of keeping him. For the error in the extent of the recovery, the judgment is reversed, and a new trial awarded. This will not affect the verdict on the attachment issue, which is not disturbed..
Judgment reversed.