The appellant contracted with the appellees for the .manufacture of two steam-engines, to be delivered to him in the city of Tuskaloosa. They
The want of correspondence of the purchased articles with a warranty, express or implied, and the fraudulent misrepresentation of the qualities of the articles, would not prevent the title from vesting in the purchaser by virtue of the contract of purchase, the delivery, the acceptance, and the payment and security of the purchase-money. The sale of the engines being complete, the purchaser could not, without the consent of the seller, annul or rescind the contract, unless he placed, or offered to place the seller in statu quo. To the rescission of the contract, a return or offer to return the property was necessary. — Pharr v. Bachelor, 3 Ala. 237; Borum v. Garland, 9 Ala. 452; Barnett v. Stanton, 2 Ala. 181; Dill v. Camp, 22 Ala. 249; S. C., 27 Ala. 553; Addison on Contracts, 273. There was, in this case, no return, or offer to return the defective engine. There was, therefore, no rescission, and no legal right to treat the contract as rescinded or annulled.
ITuless there was a rescission of the sale, or unless the article purchased was valueless, the purchaser could not resist the payment of the entire purchase-money of the defective article. His defense, while he retains the article purchased, extends only to an abatement of the price agreed to be paid. To entitle the purchaser to avoid the pajnnent of the purchase-money entirely, upon the ground of fraud or breach of warranty, when he holds on to the property, it is not sufficient that it is valueless for the particular purpose for which it-was bought — it must be intrinsically of no value. — Davis v. Dickey, 23 Ala. 848; Burton v. Stewart, 3 Wendell, 236; see, also, the authorities cited above; Addison on Contracts, 273.
The judgment of the court below is affirmed.