#### John Buchenau, Pltff in Error *v.*Patrick Horney, Deft in Error.

ERROR TO LA SALLE. •

A party cannot rescind a contract of sale and at the same time retain the consideration he has received. If he rescinds, he must return the property purchased, in as good condition as when he received it, unless it is entirely worthless.

A tender is *stricti juris,*and must he clearly proved.

A contract of sale cannot be affirmed as to part and rescinded as to the residue.

A vendor, if a sale is to be rescinded, must be put in as good a condition as he was before the sale, by a return of the property.

This was an action of assumpsit brought by plaintiff in error, against defendant in error, at November term, 1849, La Salle Circuit Court, Spring, Judge of the Cook County Court, presiding. The case was submitted to a jury for trial, when a verdict was found for the defendant. A motion for a new trial was overruled.

Bill of exceptions shows that on the trial, the plaintiff read the note declared on in evidence, and rested his cause.

The defendant called Edward Fanning, who testified that about the time of the date of the note, defendant and witness *339were in plaintiff’s bakery. Defendant asked, where he could buy a team; witness stated that plaintiff had one to sell. Plaintiff and defendant then made a bargain for the sale of a team, wagon and harness. Defendant asked witness to draw a note, lie drew one, and defendant refused to sign it; witness drew another which defendant refused to sign, and then witness left. Kotliing was said at the time in relation to the ownership of the property. That the horses had been used by Conrad Dash in his life time, and that said Dash had been in possession of the hoi'ses and wagon up to the time of his death, claiming ownership. The widow of Conrad Dash was the sister of plaintiff. She was insane at the time that plaintiff had acted in selling the property, and in paying the debts and funeral expenses of said Dash.

Defendant then called Henry Deuehart, who testified that lie.' was present at the giving of the note. That the note was given for a span of horses, wagon- and harness, sold by plaintiff to-defendant. That during the negotiation for the sale, nothing was said about the ownership of the property. This was in the evening. The- next day, at 3 or 4 o’clock in the afternoon, defendant came to the bakery of the plaintiff with the team, and told witness lie had brought back the team. Witness asked *“*what team ?” Defendant said, “ the team you sold me.” Witness replied, “ I sold you no team. I have nothing to do with it.” The plaintiff was not present at that time. Defendant then, hitched the team to a post in front of the residence of Mr. Tyler a neighbor of plaintiff. The place where the team was hitched, was as convenient a place to hitch a.team as any in the vicinity of plaintiff’s bakery, and on the evening of that day witness communicated the fact that the team had'been brought back to the plaintiff. Conrad Dash had those horses and wagon in his possession, claiming ownership prior to, and up to the time of his death. On cross-examination, witness stated that when the team was brought back by defendant, as above stated, witness was casually in the bakery of plaintiff, and was not employed by, or authorized to do business for plaintiff, and when the team was - so returned, one of the horses was entirely ruined and spoiled', by having one of his legs corked, and the cord badly cut.

It was admitted that no letters of administration had been-issued on the estate of Conrad Dash.

*340Glover & Cook, for Pltff in Error,

There was no fraud; there might have been an implied warranty or title, but the plea sets up fraud and not warranty, and .the allegatee and probatee must agree. 24 Wend, 102; 19 John. R., 77; Stanly *v.*Norris, 4 Blackford, 353; Thompson *v.*Ashton, 14 J. R., 317; Evertson’s ex. *v.*Mills, 6 J. R., 138. There was n© return of the property. Norton *v.*Young, 1 Greenleaf, 30; Coxe, 174; 10 East, 101; 18 Conn., 18; 15 Wend, 638. The plaintiff was not bound to take the property injured in value. 23 Pick., 283; 1 Dcnio, 69.

E. S. Lelahl, for Deft in Error.

Treat, C. J.

A party cannot rescind a contract of sale, and at the same time retain the consideration he has received. He cannot affirm the contract as to part, and avoid the residue, but must rescind it in *toto.*He must put the other party in as good a condition as he was before the sale, by a return of the property purchased. There may be an exception where the subject matter of the sale is entirely worthless. But if it is of any benefit to the seller, the purchaser must restore it before he can put an end to the contract. In this case, the defendant rested his defence solely on the ground that there was fraud in the sale, and that he had disaffirmed the contract by restoring the property. The proof failed to show that it was returned. The defendant called at the plaintiff’s shop and stated to a person, casually there, that he had brought back the team, and then fastened it in the vicinity. He did not declare the purpose for which it was brought back, or for whom it was intended. The plaintiff was soon after informed that the team was there, but he was not apprised of the purpose for which it was left. He was not even notified that the defendant was dissatisfied with his purchase. It does not appear that he ever took charge of .the property, or attempted to exercise the least' control over it. The defendant should have tendered the property to the plaintiff or Ms agent, and at the same time made known his object in so doing. A tender is *stricti*juris, and oright to be made out clearly. But if there was a tender of the property, the plaintiff was *341under no obligations to receive it. It was not in the condition in which the defendant received it. He did not offer to place the plaintiff in as good a condition as he was before he parted with the property. One of the horses had in the meantime become valueless. On either ground, the verdict was unauthorized, and a new trial should have been granted.

The judgment is reversed, and the cause remanded.

*Judgment reversed.*