[Myers v. Hart.]

and Bailey could not tell what it was, and Spalding and Keeler differed as to it.

That the court submitted a matter to the jury without evidence of it, has become a standing assignment of error; it might be stereotyped. The jury have the unquestionable right, not only to find the facts in every case, but the inferences fairly deducible from the facts. proved; and this latter is as clearly within their power, as it is to decide on the credibility of witnesses. It has been truly said, that evidence consists, not only of what is proved, but what is not proved. We cannot say, that the facts, that Keeler said his judgment was sufficiently safe in Bradford-his testatum to Lycoming-his withdrawal of it, and the time of issuing and withdrawing it-the not showing to Elliot or the sheriff, the agreement made by Bailey-the total uncertainty about it, in all persons but Keeler, who could not be a witness to prove it, if sued for -a violation of itin short, that the whole matter from the 21st July till the 14th of August would have been withdrawn from the jury, and the whole case properly decided on a few abstract points of law.

As to the proof of Myers's insolvency, his letter estopped him from denying it to these plaintiffs. Judgment affirmed.

Kase against John.

If the sale of a chattel be absolute, with a warranty of soundness, and there be no consent by the vendor to take it back, the vendee cannot rescind the contract, but is put to his action on the warranty, unless the vendor knew of its unsoundness, and the vendee gave him reasonable notice of it.

ERROR to the common pleas of Columbia county.

Samuel John, Esq., against Simon P. Kase. This was an action on the case in assumpsit, and originated before a justice of the peace, and was brought into this court by appeal.

The plaintiff's declaration contained three counts:-the first charged the defendant with having promised to make the plaintiff' a good threshing machine that would answer the purpose well, if he would pay him 45 dollars, with an averment that he did pay him the 45 dollars, and the defendant made the machine unskilfully and it was useless. The second count was that the plaintiff had purchased a threshing machine from the defendant for 45 dollars and paid him for it, and the defendant warranted it to be good, and averring that it turned out to be good for nothing. The third count

[Kase v. John.]

was for money had and received by the defendant to and for the use of the plaintiff.

The plaintiff gave in evidence the following agreement:

"S. P. Kase agrees to make Samuel John a threshing machine at 45 dollars, which he warrants to be good and to answer the intended purpose effectually. 14th Sep. 1837."

The machine was made, delivered to the plaintiff and paid for. The plaintiff then called witnesses to prove the worthlessness of the machine, and that when it was put into operation it broke. It appeared also in evidence that the plaintiff took the machine back to Kase, the defendant, to have it repaired, when he was not at home; it was not repaired, and the plaintiff suffered it to remain there and brought this action. The defendant gave testimony on the subject of the quality of the machine, and also to show that it was broken by the negligence of the plaintiff and by accident. The court below charged the jury thus:

That in case of a breach of the warranty, the plaintiff has a right to sustain his action whether he returned the machine before suit brought or not, and the return of the machine only affects the question of damages. If returned before suit brought, the plaintiff on showing a breach of warranty may recover the whole price of the article warranted. If not, the measure of the damages is the difference between the price paid and the real value of the article so retained.

That the delivery of the machine for the express purpose of getting it repaired, and without any intimation of an intention to return it, or that the defendant might retain it as his own is not a return of the article.

But if the defendant refused or neglected for an unreasonable length of time to repair the article warranted, the plaintiff, in case. of a breach, might elect to consider the article as returned and sue for the price of the machine.

The jury are to decide whether there has been a breach of the warranty or not; whether there has been a return of it to the defendant or not; and in case they find the existence of a breach of the warranty, are to assess the amount of the damages.

Comley and S. Hepburn, for plaintiff in error, cited 7 East 274; 5 East 452; 15 Mass. Rep. 319; 2 Stark. Ev. 8S0; 12 Wheat. 183; 1 Term. Rep. 133.

Greenough, for defendant in error, cited 12 Law Lib. 177; Ross. Vend. 344.

The opinion of the court was delivered by

ROGERS, J.-There is no objection to the charge of the court, on the subject of warranty, except to so much of it as relates to the

[Kasc v. John.]

rescission of the contract. In Corrone v. Henderson, 15 Mass. Rep. 319; Hunt v. Sill, 5 East 449, it was held, that a purchaser, who is entitled to rescind a contract, must place the vendor in statu quo in order to recover the consideration paid. How far the plaintiff was in a condition to do this, may be doubted. But be this as it may, there is another objection to the charge, which cannot be easily answered, which is, that the article was not returned, if at all, with the consent of the vendor, and there is no evidence to prove that the vendor knew of the unsoundness of the article at the time he sold. In Thorn v. Wynn, 12 Wheat. 183, Mr Justice Washington sums up the cases, and the result is this. "If upon a sale with a warranty, or if by the special terms of the contract the vendee is at liberty to return the article sold, and offers to return it, it is equivalent to an offer accepted by the vendor, and in that case the contract is rescinded and at an end, which is a sufficient defence to an action brought by the vendor for the purchasemoney, or to enable the vendee to maintain an action for money had and received, in case the purchase-money had been paid. The consequences are the same where the sale is absolute, and the vendor afterwards consents unconditionally to take back the property, because in both the contract is rescinded by the agreement of the parties, and the vendee as well entitled to retain the purchase-money in the one case as to recover it back in the other. But if the sale be absolute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action on the warranty, unless it be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it in a reasonable time."

Here it is an absolute contract of sale with warranty, and without any right reserved to return the article, nor is there any evidence either of the return of it, or any consent of the vendor to take it back. The whole evidence negatives any such idea, for the return was for purposes of repair, and not with any intention of rescinding the contract. The vendor was as much, and no more, bound to repair the machine as any other person would have been, and if there was any unreasonable delay in repairing it, the remedy is another way, and not by considering it as equivalent to a consent to rescind the contract, and thereby enable the vendee to consider the contract at an end. Here, then, was neither an express nor implied consent of the vendor to take back the article, nor any proof that the vendor knew that it was defective, and indeed whether it was in truth, is a matter of much reasonable doubt. It depends much on the credit to be attached to the statements of the witness. It was doubted whether there be a difference between the manufacturers in this respect and other vendors, that the former might be presumed to know it was unsound, although such a presumption does not arise as to others, But I perceive no warrant for the distinction in this particular in any of the cases, and we think it would

[John v. Kase.]

be mischievous to visit him with the consequences of fraud, from a presumption which, in numerous cases, would be at war with the truth.

Judgment reversed, and a venire de novo awarded.

Myers against Drake.

The relation of buyer and seller is not a confidential one; and each party is supposed to judge of his own ability to perform his part for himself. In an action for a breach of a contract, the declarations of the plaintiff, that he knew at the time of making it that the article contracted for could not be procured, cannot be given in evidence in mitigation of damages.

ERROR to the common pleas of Luzerne county.

John Myers against Charles B. Drake. On the 4th September 1838, the defendant contracted with the plaintiff to deliver to him 100 bushels of clover seed by the 1st of February following, for 800 dollars. The defendant did not perform his contract, and on the trial of this action upon it, the defendant offered to prove "the declarations of the plaintiff immediately after the contract was entered into, that he did not expect that the defendant would deliver the seed, for that he had received information that the clover seed could not be had, and knew it at the time the contract was made, and that the witness communicated this information to the defendant.

The court (Jessup, president) overruled the evidence and sealed a bill of exceptions.

The jury found a verdict for the plaintiff for 625 dollars 33 cents.

Butler, for plaintiff in error.

Woodward, for defendant in error.

PER CURIAM.-The evidence was offered in mitigation of damages, and properly rejected. There is a settled rule of compensation in every case like the present, which the unconscionableness of the bargain ought not to be suffered to disturb. There even was nothing unconscionable in making a bargain which the party supposed the other could not fulfil except at a sacrifice. The relation of buyer and seller is not a confidential one; and each of the parties is supposed to judge of his ability to perform his part for himself. A contract to perform an impossible thing may be void; but it never is impossible to procure and deliver an article of commerce which may be had in the market in some quarter of the

[Myers v. Drake.]

world. The evidence was offered, however, not to avoid the contract, but to reduce the damages for a breach of it; and the hardness of the bargain ought not to have that effect. Judgment affirmed.

Williams against Brobst.

The holder of a negotiable note, by an agreement with the maker, and for a valuable consideration, extended the time for its payment, and afterwards endorsed the same to a third person without giving notice of such agreement: Held, that he was liable to the endorsee, without demand of payment from the maker, protest or notice.

ERROR to the common pleas of Columbia county.

Christian Brobst, endorsee of David Williams, against David Williams. The plaintiff's cause of action was thus declared upon: "David Williams, late of the county aforesaid, was summoned to answer Christian A. Brobst of a plea of trespass on the case, &c. And whereupon the said Christian, by James Pleasants, his attorney, complains that whereas a certain Azariah Davis, heretofore, to wit, the 11th day of August in the year 1837, at Columbia county aforesaid, did make his certain note, in writing, with his proper hand subscribed, bearing date the day and year last aforesaid, and by the same note, the said Azariah Davis, then and there promised to pay the said David Williams, or his order 50 dollars, on or before the 1st November, (meaning the 1st November then next ensuing,) for value received. And whereas, the aforesaid David Williams, afterwards, to wit, on the 1st day of September, A. D. 1837, at Columbia county aforesaid, (the aforesaid 50 dollars in the note aforesaid mentioned to him being unpaid,) by his certain endorsement, with his proper hand on the note aforesaid made, did order and appoint the contents of the same note, to wit, the said 50 dollars, to be paid to the said Christian A. Brobst, for value received; and the said Christian in fact saith, that after the said endorsement, so as aforesaid made, to wit, on the 1st day of November, A. D. 1837, at Columbia county aforesaid, he, the said Christian, did show the note aforesaid, and the endorsement aforesaid thereon made to the aforesaid Azariah Davis, and then and there requested the said Azariah to pay the contents of the said note, to wit, the said 50 dollars, to the said Christian A. Brobst, according to the tenor of the said note and the said endorsement thereon; but the said Azariah Davis, the said 50 dollars, or any part thereof, to the said Christian A. Brobst, hath not paid, but the same to him to