The opinion of the court was delivered by
Rogers, J.
There is no objection to the charge of the court, on the subject of warranty, except to so much of it as relates to the *109rescission of the contract. In Corrone v. Henderson, 15 Mass. Rep. 319; Hunt v. Sill, 5 East 449, it was held, that a purchaser, who is entitled to rescind a contract, must place the vendor in statu, quo in order to recover the consideration paid. How far the plaintiff was in a condition to do this, may be doubted. But be this as it may, there is ■ another objection to the charge, which cannot be easily answered, which is, that the article was not returned, if at all, with the consent of the vendor, and there is no evidence to prove that the vendor knew of the unsoundness of the article at the time he sold. In Thorn v. Wynn, 12 Wheat. 183, Mr Justice Washington sums up the cases, and the result is this. ^If upon a sale with a warranty, or if by the special terms of the contract the vendee is at liberty to return the article sold, and offers to return it, it is equivalent to an offer accepted by the vendor, and in that case the contract is rescinded and at an end, which is a sufficient defence to an action brought by the vendor for the purchase-money, or to enable the vendee to maintain an action for money had and received, in case the purchase-money had been paid. The consequences are the same where the sale is absolute, and the vendor afterwards consents unconditionally to take back the property, because in both the contract is rescinded by the agreement of the parties, and the vendee as well entitled to retain the purchase-money in the one case as to recover it back in the other. . But if the sale be absolute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action on the warranty, unless it be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it in a reasonable time. V
Here it is an absolute contract of sale with warranty, and without any right reserved to return the article, nor is there any evidence either of the return of it, or any consent of the vendor to take it back. The whole evidence negatives any such idea, for the return was for purposes of repair, and not with any intention of rescinding'the contract. The vendor was-as much, and no more, bound to repair the machine as any other person would have been, and if there was any unreasonable delay in repairing it, the remedy is another way, and not by considering it as equivalent to a consent to rescind the contract, and thereby enable the vendee to consider the contract at an end. Here, then, was neither an express nor implied consent of the vendor to take back the article, nor any proof that the vendor knew that it was defective, and indeed whether it was in truth, is a matter of much reasonable doubt. It depends much on the credit to be attached to the statements of the witness. It was doubted whether there be a difference between the manufacturers in this respect and other.vendors, that the former might be presumed to know it was unsound, although such a presumption does not arise as to others, But I perceive no warrant for the distinction in this particular in any of the cases, and we think it would *110be mischievous to visit him with the consequences of fraud, from a presumption which, in numerous cases, would be at war with the truth.
Judgment reversed, and a venire de novo awarded.