Cushing v. Wyman , 38 Me. 589 ( 1854 )

Appleton, J.

— If a party would rescind a contract of sale, on the ground of fraud on the part of the vendee, it is his duty to return what he has received in payment, before he can maintain an action for the goods sold. Norton v. Young, 3 Greenl. 30. The plaintiff cannot retain the note of Brown & McCrillis, which he received of the defendants, and at the same time enforce his claim for the horses, which he has admitted to have been paid by that note. The defendants were liable to the plaintiff, on an implied guaranty that the amount purporting to be, was actually due. The note was of value to them, as evidence of indebtedness on the part of the makers, and should have been returned or the offer to return should have been made, before instituting the present suit. The case of Cushman v. Marshall, 21 Maine, 122, is decisive of the one now before us.

Plaintiff nonsuit.

Shepley, C. J., and Tenney, Howard and Hathaway, J. J., concurred. ;