THOMAS, J.
The buyer of personal property may rescind the contract and recover the consideration paid for either fraud and deceit upon the part of the seller operating to induce the purchase or for a breach of a warranty made by the seller, whether express or implied. It is true that in the case of Hafer v. Cole, 176 Ala. 247, 57 South. 757, our Supreme Court have declared that, “by the weight of authority, the vendee cannot, in the absence of fraud or an agreement giving him the right, rescind an executed contract of sale for a mere breach of warranty; his remedy in such cases being on the warranty”; yet, a decision upon this proposition was not necessary to the disposition of the case there [393]*393under consideration, as expressly there appears; consequently, we regard the statement quoted as mere dicta, and as not being intended to overrule the previous decisions of that court establishing a doctrine contrary to that declared in the excerpt quoted to be sustained by the iveight of authority. This contrary doctrine was established by our Supreme Court as far back as Burnett v. Stanton, 2 Ala. 181, which has since come frequently under review and been repeatedly reaffirmed without dissent. In Thompson v. Harvey, 86 Ala. 521, 5 South. 826, our Supreme Court said in support of it:
“Whatever may be the conflict in the authorities, it may be regarded as settled in this state that the remedy of a buyer, to avoid a contract for the breach of a Avarranty, is not restricted to cases where the Avarranty is fraudulent. This rule Avas settled long ago as the decision in Burnett v. Stanton, 2 Ala. 181, in which it was said: ‘An offer to return the chattel in a reasonable time, on the breach of a warranty, or Avhere fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy, to an offer accepted by the seller, and the contract is rescinded.’ ”
See, also, 30 Am. & Eng. Ency. Law (2d Ed.) 190, 191, note 2; Jemison v. Woodruff, 34 Ala. 146; Eagan Co. v. Johnson, 82 Ala. 237, 2 South. 302; Hodge & Williams v. Tufts, 115 Ala. 375, 376, 22 South. 422; Millsapp v. Woolf, 1 Ala. App. 604, 56 South. 22.
What is a reasonable time within which to rescind in any particular case is ordinarily a question for the jury (Millsapp v. Woolf, supra), to be determined, hoAVever, in the light of the Avell-settled principle that, if the purchaser would disaffirm the contract, the law requires him to act promptly and to restore or offer to restore, what he has received under it at the earliest practicable moment after the discovery of the cheat, un[394]*394less, of course, the thing received is absolutely worthless, or unless its restoration has. become or been rendered impossible by reason of the conduct or default of the other party. — Stephenson v. Allison, 123 Ala. 447, 26 South. 290; Hafer v. Cole, 176 Ala. 247, 57 South. 757; Hodge & Williams v. Tufts, 115 Ala. 375, 22 South. 422; Young v. Arntze, 86 Ala. 116, 5 South. 253; Pacific Guano Co. v. Mullen, 66 Ala. 582; Eastern G. R. Co. v. Chapman, 140 Ala. 440, 37 South. 190, 103 Am. St. Rep. 58; Conner v. Henderson, 15 Mass. 319, 8 Am. Dec. 103.
If, after the discovery of the fraud or breach of warranty entitling him to rescind, the purchaser uses and deals with the property as his own, or does other acts inconsistent with his right to rescind, then he is held to have elected to ratify the contract and to have waived his right to rescind (Hodge & Williams v. Tufts, 115 Ala. 376, 22 South. 422) ; and, in such event, the only remedy left him for the redress of the wrong of the seller is either a suit against such seller for damages (ex delicto, if there was fraud or deceit, and ex contractu, if there was merely a breach of warranty — Scott v. Holland, 132 Ala. 390, 31 South. 514 — -which actions may, since the Code of 1907, § 5329, be joined); or, if sued by the seller for the purchase price, an abatement protanto of the recovery by a plea of recoupment or counterclaim (Jemison v. Woodruff, 34 Ala. 146; Ward v. Reynolds, 32 Ala. 384; Brown v. Freeman, 79 Ala. 406; Eagan v. Johnson, 82 Ala. 233, 2 South. 302; 24 Am. & Eng. Ency. Law, 1157-1161; 30 Am. & Eng. Ency. Law, 195; 14 Am. & Eng. Ency. Law, 167).
Furthermore, even when the purchaser offers to restore the property and demands of the seller a rescission of the contract, and does so promptly and unreservedly, immediately upon the discovery of the fraud or breach of warranty, it is his duty, in the event the sell[395]*395er refuses to accept the property, in order to make the rescission complete, either to leave the property on the premises of the seller, or, in the event he does not do so, but retains possession, to hold such possession merely as the bailee of the seller and put the property to no use whatever of his own. If the purchaser does the latter, however slightly, he conclusively abandons his right to the rescission that was so demanded. — Samples v. Guyer, 120 Ala. 614, 24 South. 942; Hodge & Williams v. Tufts, 115 Ala. 376, 22 South. 422.
In this state, while knowledge on the part of the seller of the falsity of the representations made by him with respect to the property is essential to the maintenance of an action of deceit by the purchaser, unless such representations were fraudulently or recklessly made, which is the legal equivalent of knowledge (Code, § 2469), yet, neither knowledge nor its stated equivalent on the part of the seller is necessary to’ the right of the purchaser to rescind the contract of sale on account of false representations or misrepresentations. In the latter case the good or bad faith of the seller is immaterial. Any false statement of a material fact by the seller, however, innocently made, if relied upon by the buyer in ignorance of its falsity and which materially influences him to enter into the contract, constitutes such a fraud in law as will authorize a rescission. Code, §§ 4298, 4299; Hockensmith v. Winton, infra, 66 South. 954; Hafer v. Cole, 176 Ala. 247, 57 South. 757; Sou. Loan & Trust Co. v. Gissendaner, 4 Ala. App. 530, 58 South. 737; 14 Am. & Eng. Ency. Law (2d Ed.) 22.
In the case at bar it appears without conflict that the parties made a horse trade; the defendant (who is the appellant) swapping to the plaintiff (appellee) his mule for the latter’s mare, without boot. Some several days after'the exchange of animals between them the [396]*396mare became lame, and the defendant, promptly upon the discovery of such fact, carried her to plaintiff’s house, some several miles distant, and, tendering her to the plaintiff, informed him of her condition and demanded his mule, stating, in effect, that the plaintiff, at the time of the trade, had represented or warranted the mare to be sound and all right, when she was not, iin the particulars as stated.
The evidence for defendant tended to show that the mare, to plaintiff’s knowledge, but without defendant’s knowledge, had been lame quite frequently during the two years that plaintiff had owned her, and recently before he. swapped her to defendant, and that such lameness was due to some inherent and latent cause which still existed at the time he swapped her to defendant, and that such cause produced the lameness that developed in the mare a few days after defendant so traded for her.
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THOMAS, J.
The buyer of personal property may rescind the contract and recover the consideration paid for either fraud and deceit upon the part of the seller operating to induce the purchase or for a breach of a warranty made by the seller, whether express or implied. It is true that in the case of Hafer v. Cole, 176 Ala. 247, 57 South. 757, our Supreme Court have declared that, “by the weight of authority, the vendee cannot, in the absence of fraud or an agreement giving him the right, rescind an executed contract of sale for a mere breach of warranty; his remedy in such cases being on the warranty”; yet, a decision upon this proposition was not necessary to the disposition of the case there [393]*393under consideration, as expressly there appears; consequently, we regard the statement quoted as mere dicta, and as not being intended to overrule the previous decisions of that court establishing a doctrine contrary to that declared in the excerpt quoted to be sustained by the iveight of authority. This contrary doctrine was established by our Supreme Court as far back as Burnett v. Stanton, 2 Ala. 181, which has since come frequently under review and been repeatedly reaffirmed without dissent. In Thompson v. Harvey, 86 Ala. 521, 5 South. 826, our Supreme Court said in support of it:
“Whatever may be the conflict in the authorities, it may be regarded as settled in this state that the remedy of a buyer, to avoid a contract for the breach of a Avarranty, is not restricted to cases where the Avarranty is fraudulent. This rule Avas settled long ago as the decision in Burnett v. Stanton, 2 Ala. 181, in which it was said: ‘An offer to return the chattel in a reasonable time, on the breach of a warranty, or Avhere fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy, to an offer accepted by the seller, and the contract is rescinded.’ ”
See, also, 30 Am. & Eng. Ency. Law (2d Ed.) 190, 191, note 2; Jemison v. Woodruff, 34 Ala. 146; Eagan Co. v. Johnson, 82 Ala. 237, 2 South. 302; Hodge & Williams v. Tufts, 115 Ala. 375, 376, 22 South. 422; Millsapp v. Woolf, 1 Ala. App. 604, 56 South. 22.
What is a reasonable time within which to rescind in any particular case is ordinarily a question for the jury (Millsapp v. Woolf, supra), to be determined, hoAVever, in the light of the Avell-settled principle that, if the purchaser would disaffirm the contract, the law requires him to act promptly and to restore or offer to restore, what he has received under it at the earliest practicable moment after the discovery of the cheat, un[394]*394less, of course, the thing received is absolutely worthless, or unless its restoration has. become or been rendered impossible by reason of the conduct or default of the other party. — Stephenson v. Allison, 123 Ala. 447, 26 South. 290; Hafer v. Cole, 176 Ala. 247, 57 South. 757; Hodge & Williams v. Tufts, 115 Ala. 375, 22 South. 422; Young v. Arntze, 86 Ala. 116, 5 South. 253; Pacific Guano Co. v. Mullen, 66 Ala. 582; Eastern G. R. Co. v. Chapman, 140 Ala. 440, 37 South. 190, 103 Am. St. Rep. 58; Conner v. Henderson, 15 Mass. 319, 8 Am. Dec. 103.
If, after the discovery of the fraud or breach of warranty entitling him to rescind, the purchaser uses and deals with the property as his own, or does other acts inconsistent with his right to rescind, then he is held to have elected to ratify the contract and to have waived his right to rescind (Hodge & Williams v. Tufts, 115 Ala. 376, 22 South. 422) ; and, in such event, the only remedy left him for the redress of the wrong of the seller is either a suit against such seller for damages (ex delicto, if there was fraud or deceit, and ex contractu, if there was merely a breach of warranty — Scott v. Holland, 132 Ala. 390, 31 South. 514 — -which actions may, since the Code of 1907, § 5329, be joined); or, if sued by the seller for the purchase price, an abatement protanto of the recovery by a plea of recoupment or counterclaim (Jemison v. Woodruff, 34 Ala. 146; Ward v. Reynolds, 32 Ala. 384; Brown v. Freeman, 79 Ala. 406; Eagan v. Johnson, 82 Ala. 233, 2 South. 302; 24 Am. & Eng. Ency. Law, 1157-1161; 30 Am. & Eng. Ency. Law, 195; 14 Am. & Eng. Ency. Law, 167).
Furthermore, even when the purchaser offers to restore the property and demands of the seller a rescission of the contract, and does so promptly and unreservedly, immediately upon the discovery of the fraud or breach of warranty, it is his duty, in the event the sell[395]*395er refuses to accept the property, in order to make the rescission complete, either to leave the property on the premises of the seller, or, in the event he does not do so, but retains possession, to hold such possession merely as the bailee of the seller and put the property to no use whatever of his own. If the purchaser does the latter, however slightly, he conclusively abandons his right to the rescission that was so demanded. — Samples v. Guyer, 120 Ala. 614, 24 South. 942; Hodge & Williams v. Tufts, 115 Ala. 376, 22 South. 422.
In this state, while knowledge on the part of the seller of the falsity of the representations made by him with respect to the property is essential to the maintenance of an action of deceit by the purchaser, unless such representations were fraudulently or recklessly made, which is the legal equivalent of knowledge (Code, § 2469), yet, neither knowledge nor its stated equivalent on the part of the seller is necessary to’ the right of the purchaser to rescind the contract of sale on account of false representations or misrepresentations. In the latter case the good or bad faith of the seller is immaterial. Any false statement of a material fact by the seller, however, innocently made, if relied upon by the buyer in ignorance of its falsity and which materially influences him to enter into the contract, constitutes such a fraud in law as will authorize a rescission. Code, §§ 4298, 4299; Hockensmith v. Winton, infra, 66 South. 954; Hafer v. Cole, 176 Ala. 247, 57 South. 757; Sou. Loan & Trust Co. v. Gissendaner, 4 Ala. App. 530, 58 South. 737; 14 Am. & Eng. Ency. Law (2d Ed.) 22.
In the case at bar it appears without conflict that the parties made a horse trade; the defendant (who is the appellant) swapping to the plaintiff (appellee) his mule for the latter’s mare, without boot. Some several days after'the exchange of animals between them the [396]*396mare became lame, and the defendant, promptly upon the discovery of such fact, carried her to plaintiff’s house, some several miles distant, and, tendering her to the plaintiff, informed him of her condition and demanded his mule, stating, in effect, that the plaintiff, at the time of the trade, had represented or warranted the mare to be sound and all right, when she was not, iin the particulars as stated.
The evidence for defendant tended to show that the mare, to plaintiff’s knowledge, but without defendant’s knowledge, had been lame quite frequently during the two years that plaintiff had owned her, and recently before he. swapped her to defendant, and that such lameness was due to some inherent and latent cause which still existed at the time he swapped her to defendant, and that such cause produced the lameness that developed in the mare a few days after defendant so traded for her.
The plaintiff denied making any representations or warranty as to the soundness of the mare, and declined to accept her from defendant or to restore to him the mule. The defendant thereupon returned with the mare to his home, and, without even putting her to any use or work of his own or doing any other act inconsistent with his right to disaffirm the sale — so far as appears — he, a few days later, on seeing the plaintiff pass his house on the mule en route to Halevville, followed him on the mare. When the plaintiff reached Haley-ville and had dismounted, hitched the mule, and gone on up town, the defendant seized the mule, without plaintiff’s consent, and rode her home, leaving the mare hitched at Haleyville in her place. The plaintiff declined to take the mare (which was later seized and sold by the town authorities as an estray), and brought this suit in detinue against the defendant for the mule.
[397]*397From what we have said it is clear that, in the event the plaintiff made either a false representation or false warranty with respect to the condition of the mare, covering the defect in question (the only seriously controverted issue in the case), and the defendant, in ignorance of its falsity, ivas induced to make the trade, and within a reasonable time thereafter tendered the mare to the plaintiff and demanded a rescission of the contract, then by operation of law, although the demand was refused, the ownership of the mare became reinvested in the plaintiff, and the title to the mule restored to the defendant, together with the right in him to immediate possession, which title and right continued in him, notwithstanding he retained possession of the mare, provided he did no act inconsistent with a- holding as the mere bailee for the exclusive benefit of plaintiff (Hayes v. Wooclham, 145 Ala. 599, 40 South. 511), and which title and right the law allowed him to assert by taking possession of the mule at any time he could do so without committing a breach of the peace or a trespass upon the premises of another. — Street v. Sinclair, 71 Ala. 110; 23 Am. & Eng. Ency. Law, 973, 975.
Charge numbered 1, given at plaintiff’s request, was therefore erroneous, if for no other reason than that it, in effect, denied to defendant the right of rescission and recovery, unless the jury believed that the statements or representations which defendant’s evidence tended to show that plaintiff made at the time of the trade as to the condition of the mure amounted or rose to the dignity of a warranty. As before seen, a material false statement, though it may not be sufficient to constitute a warranty, would, if relied upon by the defendant in ignorance of its falsity and operating materially to influence him to enter into the contract, amount to legal fraud, though mistakenly or innocently made, and [398]*398would authorize, equally with a warranty, a rescission of the contract.- — -Code, § 4298; Hafer v. Cole, supra.
Charges 2, 5, 7, and 9 given at the request of plaintiff were, as seen, correct expositions of the law as applicable to the case.
Charge 6 was misleading, and should have been re-, fused.
Charge 4 given at plaintiff’s request did not aptly express the proposition of law intended (Seaboard Air L. Ry. Co. v. Taylor, 9 Ala. App. 628, 64 South. 187), and on another trial its verbiage should be changed so as to avoid the possibility of a construction that it was meant to assert that, if the jury believed that any witness willfully and knowingly swore falsely, they might, in their discretion, disbelieve all the witnesses.
The court committed no error in declining to give the charges numbered 1, 2, 5, 6, 9, 10, 11, 12, and 15 requested by defendant and assigned as error. With respect to each, except charge 9, nothing more need be said than that it either ignores or assumes the existence of one or more of the conditions upon which defendant was entitled to recover, as is too apparent, in the light of the principles of law and the tendencies of the evidence as stated in the opinion, to necessitate a further discussion or pointing out. Charge 9 was abstract, if not otherwise defective. The plaintiff was competent, we think, to testify to the value of the mule sued for. • — Code, § 3960; Millsapp v. Woolf, 1 Ala. App. 599, 56 South. 22.
Nor Avas there error on the part of the court in allowing plaintiff’s witnesses to state that defendant, after seizing the mule in Haleyville, mounted her anrode her off in a run, whipping and urging her forward. This was part of the res gestse of the taking.
[399]*399The other errors insisted upon in brief are not likely to arise on another trial.
For the error pointed out, the judgment is reversed. Reversed and remanded.