Shaw, C. J.
Replevin for a horse, on a claim by the plaintiff to rescind a contract of exchange, previously made with the defendant, on the ground that the plaintiff had been deceived by false representations of the defendant as to the character of a colt given in exchange. The question is, whether, upon the facts reported, the plaintiff can maintain the action of replevin.
In order to maintain replevin, it "s clear that the plaintiff must [552]*552prove either a tortious taking or a tortious detention of the property replevied. Page v. Crosby, 24 Pick. 215. A sale, made under false representations, is not ipso facto void, but is voidable at the election of the party defrauded. The vendor, who has parted with his property upon such false representations, may insist that no title passed to the vendee, or to any other person claiming title under him, other than a bona fide purchaser for value, and without notice of the fraud ; and in such case, the vendor may maintain replevin or trover for his property. Thurston v. Blanchard, 22 Pick. 18. But the rule thus laid down is always accompanied with this qualification, that the power of rescinding, in the case stated, is at the election of the party defrauded. Although he is imposed on, he may keep the property, and affirm the sale; or he may rescind the sale, at his option. But if he elects to rescind the sale, he must return and restore to the other party the whole of the consideration, whether money, goods or securities, received by way of consideration for the sale, which may be of any value to either party. Kimball v. Cunningham, 4 Mass. 502. Conner v. Henderson, 15 Mass. 319. Perley v. Balch, 23 Pick. 283
If the vendor holds nothing of any value to either part) c be restored, and nothing remains to be done on his part, he ma) maintain trover or replevin, without a special demand; because the taking was tortious, being obtained by fraud. Such.was the case above cited, of Thurston v. Blanchard, where the plaintiff had nothing of value to either party. So the result is the same, where, although the plaintiff has received some valuable consideration from a third party, he has nothing to restore to the defendant. Stevens v. Austin, 1 Met. 557. Such would be the case if the equivalent received in goods was worth nothing to either party. Perley v. Balch, before cited.
The reason of this rule is, that the plaintiff, as far as it is in his power, shall put the defendant in statu quo, by restoring and revesting his former property in him, without putting him to an action to recover it, before he can exercise his own right to take back the property sold, or bring an action for it.
It is conceded, in the present case, thr t the colt received by [553]*553the plaintiff was of some value, and that he was bound to return it before he could lawfully take his horse, or maintain an action of replevin for him. The question therefore is, whether, at the time the plaintiff commenced his action — taking it to be true, under the circumstances, that the action was commenced by the service of the writ — he had a good cause of action. It appears that the plaintiff, accompanying the officer, carried the colt to the defendant’s yard, where the horse was, left the colt on the defendant’s premises, and forthwith the officer took the horse on the replevin writ. The plaintiff, although he saw the defendant when on his way to the yard, gave him no notice of his purpose to rescind the contract, and made no tender of the colt. This act of carrying the colt to the defendant’s premises, and leaving him there, without declaring his purpose to the defendant, or notice to him, was not a delivery or tender of the colt to him, and did not necessarily divest his own property in the colt, nor revest the property in the defendant. It was not a return or restoration of the colt to the defendant, within the meaning of the rule requiring such return. Had he tendered the colt to the defendant, (as he could not compel the defendant to receive him,) such tender, if refused, might be considered as doing all that was necessary, on his part, to rescind the contract. So, if he had taken reasonable measures to make such tender, and it had been prevented by the defendant’s avoidance or other cause, it might have been sufficient. But in the present case, it is manifest that such tender might have been made and was not made. The court are therefore of opinion, that as the replevin writ was served, and the action commenced, before the contract was rescinded by the return of the colt, it was prematurely brought and cannot be maintained.
It must be understood that this decision does not proceed on the ground taken by the defendant, that the plaintiff must have demanded his horse of the defendant, and been refused, before he could bring trover or replevin. Had the plaintiff restored the colt, and thereby effectually rescinded the contract, he would have been placed in the same condition as if no contract of sale had been made; and as the possession of the horse was [554]*554obtained by unlawful means, namely, by fraudulent representa tions, he might have treated the possession of the horse, by the defendant, as tortious, by relation, from the time of the first taking, and so might have maintained trover or replevin without a demand. But the ground of the decision is, that the plaintiff had not placed himself in statu quo, by restoring the colt and effectually rescinding the contract, and therefore had not qualified himself to maintain any action for the wrongful detention of the horse.
It was argued for the plaintiff, that the right to rescind, and take back the property, in the case of goods sold under false representations, does not depend upon the assent of the parties, but is a legal right of the vendor thus deceived. This is true ; but it is a conditional right, the condition being that he shall restore the consideration. That condition, we think, was not complied with at the time this action was commenced. The case is therefore to be remanded to the court of common pleas, for a new trial in that court.
A new trial was had in the court of common pleas, before Colby, J. who made the following report thereof: In the case, as formerly presented, it having been conceded and agreed that the parties had exchanged horses, and that such exchange was fraudulent, and could have been avoided by the plaintiff; and the supreme judicial court having decided that the plaintiff should have placed the defendant in statu quo, before the commencement of the present action, and that he had not done so; the nlaintiff now contended, first, that the said exchange was conditional, and secondly, that the defendant had waived his right to insist upon a restitution of the colt. Upon these two points} there was evidence tending to prove the following facts :
That the exchange, after some previous negotiation, took place on Monday; that the plaintiff wanted the colt to matcli another horse that he owned; that the defendant represented his colt to be sound and kind; that the plaintiff said, at the time of the exchange, or transfer of possession, “if youi colt is what you represent him to be, I will exchange with you; ” that [555]
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Shaw, C. J.
Replevin for a horse, on a claim by the plaintiff to rescind a contract of exchange, previously made with the defendant, on the ground that the plaintiff had been deceived by false representations of the defendant as to the character of a colt given in exchange. The question is, whether, upon the facts reported, the plaintiff can maintain the action of replevin.
In order to maintain replevin, it "s clear that the plaintiff must [552]*552prove either a tortious taking or a tortious detention of the property replevied. Page v. Crosby, 24 Pick. 215. A sale, made under false representations, is not ipso facto void, but is voidable at the election of the party defrauded. The vendor, who has parted with his property upon such false representations, may insist that no title passed to the vendee, or to any other person claiming title under him, other than a bona fide purchaser for value, and without notice of the fraud ; and in such case, the vendor may maintain replevin or trover for his property. Thurston v. Blanchard, 22 Pick. 18. But the rule thus laid down is always accompanied with this qualification, that the power of rescinding, in the case stated, is at the election of the party defrauded. Although he is imposed on, he may keep the property, and affirm the sale; or he may rescind the sale, at his option. But if he elects to rescind the sale, he must return and restore to the other party the whole of the consideration, whether money, goods or securities, received by way of consideration for the sale, which may be of any value to either party. Kimball v. Cunningham, 4 Mass. 502. Conner v. Henderson, 15 Mass. 319. Perley v. Balch, 23 Pick. 283
If the vendor holds nothing of any value to either part) c be restored, and nothing remains to be done on his part, he ma) maintain trover or replevin, without a special demand; because the taking was tortious, being obtained by fraud. Such.was the case above cited, of Thurston v. Blanchard, where the plaintiff had nothing of value to either party. So the result is the same, where, although the plaintiff has received some valuable consideration from a third party, he has nothing to restore to the defendant. Stevens v. Austin, 1 Met. 557. Such would be the case if the equivalent received in goods was worth nothing to either party. Perley v. Balch, before cited.
The reason of this rule is, that the plaintiff, as far as it is in his power, shall put the defendant in statu quo, by restoring and revesting his former property in him, without putting him to an action to recover it, before he can exercise his own right to take back the property sold, or bring an action for it.
It is conceded, in the present case, thr t the colt received by [553]*553the plaintiff was of some value, and that he was bound to return it before he could lawfully take his horse, or maintain an action of replevin for him. The question therefore is, whether, at the time the plaintiff commenced his action — taking it to be true, under the circumstances, that the action was commenced by the service of the writ — he had a good cause of action. It appears that the plaintiff, accompanying the officer, carried the colt to the defendant’s yard, where the horse was, left the colt on the defendant’s premises, and forthwith the officer took the horse on the replevin writ. The plaintiff, although he saw the defendant when on his way to the yard, gave him no notice of his purpose to rescind the contract, and made no tender of the colt. This act of carrying the colt to the defendant’s premises, and leaving him there, without declaring his purpose to the defendant, or notice to him, was not a delivery or tender of the colt to him, and did not necessarily divest his own property in the colt, nor revest the property in the defendant. It was not a return or restoration of the colt to the defendant, within the meaning of the rule requiring such return. Had he tendered the colt to the defendant, (as he could not compel the defendant to receive him,) such tender, if refused, might be considered as doing all that was necessary, on his part, to rescind the contract. So, if he had taken reasonable measures to make such tender, and it had been prevented by the defendant’s avoidance or other cause, it might have been sufficient. But in the present case, it is manifest that such tender might have been made and was not made. The court are therefore of opinion, that as the replevin writ was served, and the action commenced, before the contract was rescinded by the return of the colt, it was prematurely brought and cannot be maintained.
It must be understood that this decision does not proceed on the ground taken by the defendant, that the plaintiff must have demanded his horse of the defendant, and been refused, before he could bring trover or replevin. Had the plaintiff restored the colt, and thereby effectually rescinded the contract, he would have been placed in the same condition as if no contract of sale had been made; and as the possession of the horse was [554]*554obtained by unlawful means, namely, by fraudulent representa tions, he might have treated the possession of the horse, by the defendant, as tortious, by relation, from the time of the first taking, and so might have maintained trover or replevin without a demand. But the ground of the decision is, that the plaintiff had not placed himself in statu quo, by restoring the colt and effectually rescinding the contract, and therefore had not qualified himself to maintain any action for the wrongful detention of the horse.
It was argued for the plaintiff, that the right to rescind, and take back the property, in the case of goods sold under false representations, does not depend upon the assent of the parties, but is a legal right of the vendor thus deceived. This is true ; but it is a conditional right, the condition being that he shall restore the consideration. That condition, we think, was not complied with at the time this action was commenced. The case is therefore to be remanded to the court of common pleas, for a new trial in that court.
A new trial was had in the court of common pleas, before Colby, J. who made the following report thereof: In the case, as formerly presented, it having been conceded and agreed that the parties had exchanged horses, and that such exchange was fraudulent, and could have been avoided by the plaintiff; and the supreme judicial court having decided that the plaintiff should have placed the defendant in statu quo, before the commencement of the present action, and that he had not done so; the nlaintiff now contended, first, that the said exchange was conditional, and secondly, that the defendant had waived his right to insist upon a restitution of the colt. Upon these two points} there was evidence tending to prove the following facts :
That the exchange, after some previous negotiation, took place on Monday; that the plaintiff wanted the colt to matcli another horse that he owned; that the defendant represented his colt to be sound and kind; that the plaintiff said, at the time of the exchange, or transfer of possession, “if youi colt is what you represent him to be, I will exchange with you; ” that [555]*555the plaintiff told the defendant that he would inquire about his colt, and the defendant told the plaintiff that he might give the colt a fair trial; and that thereupon the horses were exchanged That, on the following Friday, the defendant called at the plaintiff’s house, (according to a promise to that effect, which he made at the time of the exchange,) and a trial of the colt was made in his presence; that the colt exhibited a fractious and ungovernable temper; and that the defendant, after saying that the colt never acted so before, requested the plaintiff to give him a further trial, to stop his grain, and try him in a stage coach ; that the plaintiff refused to comply with this request; that the defendant, at the same time, informed the plaintiff that he had found the plaintiff’s horse to be all that he had represented him to be, and said he would come on Monday or Tuesday following, and make all right, and settle the affair about the horses; that, on the Monday following, the defend ant sent a message to the plaintiff, that he might do as he pleased with the colt, and give him as much grain as he pleased, and use him as he pleased; that he (the defendant) should not take the colt back; that he was sick, and could not go down as he had agreed; that, after receiving this message, the plaintiff sued out the writ of replevin, and went with the officer to the defendant’s place of residence, and turned the colt into the defendant’s yard, and seized the horse before making service of the writ; as is more fully stated in the report of the former trial.
Upon the evidence of these facts, the judge ruled, and proposed to instruct the jury, “ that if the horses were exchanged merely for the purpose of trial, or that it was to be no exchange if either horse did not come up to the representation of his character and qualities, it was incumbent on the plaintiff to return the colt, received of the defendant, previous to the commencement of the present action; that the message, sent by the defendant to the plaintiff, was no waiver of the right of the defendant to be put in statu quo before the commencement of this action, (coupled with the fact that the plaintiff actually undertook to return the colt before its commencement,) but was a [556]*556mere remitter to his legal rights.” Upon these rulings and in structions, under the direction of the court, a verdict was returned for the defendant, and the plaintiff alleged exceptions.
F. Hilliard, for the plaintiff.
The bargain was conditional, and the property did not pass, but the possession only. Marston v. Baldwin, 17 Mass. 606. Towers v. Barrett, 1 T. R. 136. Duncan v. Cafe, 2 Mees. & Welsh. 244.
There was evidence of an offer, or something equivalent to an offer, by the plaintiff, to return the defendant’s colt, and of a waiver, by the defendant, of a return. The jury should have passed upon this evidence. See Thornton v. Wynn, 12 Wheat. 189. But an offer to return is not prerequisite to an action, in case of fraudulent representations. Notice to the defendant that the bargain is rescinded is sufficient. Cozzins v. Whitaker, 3 Stew. & Port. 329. Kellogg v. Denslow, 14 Connect. 421. Steigleman v. Jeffries, 1 S. & R. 477. Rutter v. Blake, 2 Har. & Johns. 353. Cash v. Giles, 3 Car. & P. 407. Okell v. Smith, 1 Stark. R. 107. Poulton v. Lattimore, 9 Barn. & Cres. 259. Fitt v. Cassanet, 5 Scott N. R. 902, and 4 Man. & Grang. 898. Fisher v. Samuda, 1 Campb. 190.
If no offer was made by the plaintiff to return the colt, it was oecause the defendant promised to meet him at a future day, and make all right; and this was a waiver, by the defendant, of a tender, or offer to return. Brigham v. Clark, 20 Pick. 43. Swan v. Drury, 22 Pick. 485. Frazier v. Cushman, 12 Mass. 279. Borden v. Borden, 5 Mass. 67. Northfield v. Taunton, 4 Met. 436. Gilmore v. Holt, 4 Pick. 258. Jackson v. Jacob, 3 Bing. N. R. 869. Perry v. Smith, 1 Car. & Marshm. 554. M’Nish v. Coon, 13 Wend. 26.
Wilkinson, for the defendant.
A conditional sale stands on no different ground from a fraudulent sale. In both, the contract must be rescinded, and the vendor put in statu quo, before an action will lie. The evidence shows neither a rescission of the bargain, nor an agreement to rescind it. The effect of the interview of the parties, when a trial was made of the colt, was to leave matters as they found them.
The points arising on these exceptions were argued and decided at October term 1845.
[557]*557The defendant had not disabled himself to return the plaintiff's horse, and was not liable to an action until the plaintiff had rescinded the contract, and put him in statu quo. That his message to the plaintiff, that he would not take back the colt, did not give the plaintiff a right to sue without returning the colt, is shown by the case of Pomroy v. Gold, 2 Met. 500.
This case, after another trial, again comes before the court, on exceptions from the court of common pleas, upon a state of facts materially different from the former. In the former case, it was held that the possession of the plain tiff’s horse having been obtained by the defendant by fraud, the original taking was tortious, and therefore trover or replevin would lie without a demand. But it was further held, that the plaintiff, in order to rescind the contract, must restore and refund the consideration; and as the consideration was the defendant’s colt, he must redeliver or tender back the colt, that the defendant might be placed in statu quo, without the necessity of bringing an action ; and that placing the colt on the defendant’s premises, without notice of his purpose to rescind the contract and restore the colt, was not such restoration; that notice of such purpose given to the defend ant afterwards, on his return home, was insufficient for the purposes of this action ; because it occurred after the writ of replevin was served, and of course after this action was brought. There was then no evidence of any communication between the parties, from the time of the exchange of horses, to the delivery of the defendant’s colt at the barn yard, where the replevin writ was served.
In the present case, there was evidence tending to show the following facts: [Here the chief justice stated the evidence, as above reported by Colby, J.]
Upon this evidence, the learned judge ruled, and proposed to instruct the jury, “ that the message, sent by the defendant to the plaintiff, was no waiver of the right of the defendant to be put in statu quo before the commencement of this action, (coupled .with the fact that the plaintiff actually undertook to return the colt before its commencement,) but was a ••emitter 1 [558]*558his legal rights.” If, as we understand this last clause, it was a direction that the message only remitted the plaintiff to his legal right, to recover back the horse, upon tender of the colt before the action was commenced, we think it was not correct. We are of opinion that these facts, if proved to the satisfaction of the jury, would have warranted them in finding, either that an offer to restore the colt had been made by the plaintiff on Friday —an answer to which had, by mutual consent, been postponed to Monday or Tuesday — and that the message was an answer refusing such tender, (Jackson v. Jacob, 3 Bing. N. R. 869,) or that it was an express waiver of any further tender. Where one would otherwise be required to make a tender, and the person to whom it is to be made expressly declares that he will not accept it, as a general rule, and especially in case of a chattel, the formality of a specific tender is dispensed with and waived. Borden v. Borden, 5 Mass. 67. Frazier v. Cushman, 12 Mass. 279.
We think, therefore, that the jury should have been in structed, that if the parties met on Friday to try and examine the colt, and the plaintiff then gave notice to the defendant of his intention to restore the colt and take back the horse; and if the defendant agreed to meet the plaintiff on Monday or Tuesday, and make all right, and settle about the horses; and on the Monday following, the defendant sent a message to the plaintiff, that he would not take back the colt; it was a waiver of any further tender, and the plaintiff had a right to maintain trover or replevin for his horse.
As to the fact that the plaintiff put the colt on the defendant’s premises, (indicating an intention to make a tender, which this court have considered insufficient,) it was highly proper that he should do so, and was beneficial to the defendant, because it afforded him facility in regaining his property, without the necessity of an action or even of a demand. But, as it regarded his right of action for the horse, it was a work of supererogation ; because that right was already complete, by the previous offer to the defendant and his refusal to acceptor by.his waiver of a specific tender of the colt.
[559]*559But it was argued for the defendant, that a tender of the colt should have been made simultaneously with a demand for the horse, in order that the defendant might restore the horse without an action, and thus avoid expense.
This argument was urged in the former case, and the answer was then made, with which we are now satisfied, that as the horse was obtained, in the first instance, by fraud, the original taking was tortious, and amounted in law to a conversion, at the election of the party defrauded, and therefore no demand of the horse, by the plaintiff, was necessary to enable him to bring an action. He was only to restore the colt received in exchange ; and if he did this, or the defendant gave him notice that he would not accept the colt if offered, before the writ of replevin was served, his right of action was complete.
Verdict set aside, and new trial granted.