| Vt. | May 15, 1859
Two questions arise upon the auditor’s report: 1st, had the defendant a right to rescind the contract ? 2d, if he had the right, did he so exercise it as to enable him to defend against this suit ?
I. The report shows that the plaintiff was to deliver the defendant mess pork; that the pork he delivered was not mess pork, but was of a different description or hind, and not merely of a different or inferior quality; and that when delivered it was
After thus receiving the property and crediting the plaintiff for it on book, and using- a part, though but a small part of it, the defendant could not rescind the contract for a mere inferiority in the quality of the article. The difference must be one of kind or description. The article must turn out of a different description in kind or class from the article named in the contract. .
It appears from the auditor’s report that mess pork has a pre^ cise meaning in trade, and comprises only that pork that is taken from the sides of the hog between the shoulders and the hams, and no other part of the animal; and that the pork delivered contained neck, rump and shoulder pieces, in quantity about one-quarter of the whole. It would seem that this was a difference in kind, and not merely in quality, and that the defendant might well say this is not the article the plaintiff was to deliver.
Again, he could not rescind the contract if at the time of the delivery of the article he could have discovered, by the use of ordinary diligence, that it was not of the kind he bargained for. But it would seem that the pork was packed in barrels and the barrels headed up, and that without, unpacking he could not discover the defect; and that in a short time he did discover the defect, and then immediately gave notice to rescind and return the property.
Nor could the defendant rescind the contract unless both parties could be put in the same situation in which they were when the contract was made. This seems to be a rule which has been adhered to with great strictness. Hence, when one of the parties has derived a benefit from the enjoyment of the contract, as in the leading case of Hunt v. Silk, 5 East 449 ; or may have been injured by the other party’s use and possession of the property, though but for a short time, as in Been v. Blandford, 2 Y. & Jerv, 278, there the contract cannot be rescinded. Hence,
In Muller v. Eno, 3 Ducr 421, it is held that an implication of warranty, attached to a purchase ‘of goods, should last no longer than is reasonably necessary for the examination of the articles.
In Lyon v. Bertram et al., 20 How. 150, the cases on this subject are reviewed by Judge Campbell, and the doctrine sustained that if, upon a sale with warranty, the vendee receive a part of the goods sold, and sell them, and then discover the defect, he cannot then rescind the contract and refuse to receive the remainder. His remedy would be by showing his damages in a suit against hito; or by commencing an action himself for the breach of contract. But in applying these general principles to the facts of this case, the court do not concur in opinion, and do not therefore pass upon this point, as there is anothet point in regard to the manner in which the right to rescind was 'exercised, (granting it to exist) that is decisive of the case in favor of the plaintiff.
If the defendant had the right to rescind, he was bound to exercise the right so as to restore th'e plaintiff to the condition in which he was when the contract was made. Even if it was the 'fault of the plaintiff that the pork was so packed as to 'conceal the defect and oblige the defendant to use some of it before he could discover the defect, and that it was thus owing to the plaintiff’s wrongful act that the defendant could not upon rescinding return the whole of the property as he received it; still, it was his duty not only to rescind and to return the property on hand, but also to restore to the plaintiff the value in money of the part he had used. This, perhaps, was all he could do to restore the plaintiff to his former condition, but this much, at least, he was required to do. It was not enough to offer to pay for the half barrel he had sold; he should have tendered to the plaintiff the value of the property he had thus used. This he did not do. He said to the plaintiff that he would pay him for the pork he had used, but he did not tender or offer him any sum whatever by way of payment. The plaintiff was no.t bound to rely on the defendant’s promise to pay him. He had a right to treat the
Judgment affirmed.