Hayes v. Woodham , 145 Ala. 597 ( 1906 )

TYSON, J.

An offer to return the horse in a reasonable time, if there \v.as a breach of the Avarranty or a fraud practiced on the plaintiff, after the breach or fraud was discovered, is equivalent in its effect upon the remedy to an offer accepted by the seller, and the contract is rescinded. In other Avords, such an offer made Avithin a reasonable time after a discovery of the fraud or breach of AA’arranty, Avas just as effectual to rescind the contract of exchange as if the defandant had accepted it. — Bur-nett v. Stanton, 2 Ala. 189 ; Jemison v. Woodruff, 34 Ala. 143, 146 ; Dill v. Camp, 22 Ala. 259 ; Rand v. Oxford, 34 Ala. 476 ; Samples v. Guyer, 120 Ala. 611, 24 South. 942.

We need only apply this principle to see that under the testimony offered by plaintiff, if believed by the jury, there was a rescission of the contract of exchange by him, and that the legal title to the mule sued for Avas reinvested in him by his offer to return the horse, and the title to the horse reinvested in defendant. The, subsequent possession of the horse by plaintiff, taken as it was from the commons, and the uses made of it by him, without more, cannot defeat his right of recovery in this action. The principle governing this phase of the case is clearly stated in Rand v. Oxford, supra, in this language: “When the purchaser of a chattel, for a sufficient reason, makes a tender of the property to the seller with a view to rescission, and the seller refuses to receive it, the purchaser may abandon the property; but he is not bound to do so. He may, if he choose, retain the possession; and in that event he is considered merely the bailee of the seller, and that relation becomes at once the rule and measure of his rights and responsibilities.” — Bennett v. Fail, 26 Ala. 615, 610 ; Dill v. Camp, supra. What was said in Samples v. Quyer, supra, when read in connection with the averments of the replication, which were being reviewed, is not opposed to this principle.

The giving of the affirmative charge by the court for defendant was error.

Reversed and remanded. All the justices concur.