The defendant agreed to pay for the horse, or return it the next day. He did not return it. He was therefore bound by his agreement to pay for it, unless, for sufficient cause, he rescinded it, and returned the horse within a reasonable time in substantially the same condition it was in when he received it. Whether it was then in the same condition, was a question raised in the case. This was one of the essential elements of recision, and was excluded by the instructions requested. They were therefore properly refused. Under the instructions requested, the jury would have been erroneously required to find for the defendant whether there was any rescission and return or not. If they had been given without material qualifications a verdict for the defendant must have been set aside.
They were properly refused on another ground. There was, so far as appears, no evidence of unsoundness except the bunch upon the leg, to which the attention of Royce was called. There was no evidence that the plaintiff attempted to conceal it, or that its existence was not equally open to both parties; and this being the case, the defendant could not rely upon the plaintiff's warranty. Hanson v. Edgerly, 29 N.H. 343, 352; 2 Kent Com. 483. If the plaintiff's representation did not amount to a warranty, — if they went no further than to furnish the foundation for an action on the case for deceit, — they would not be a bar to the plaintiff's recovery; for the deceit, if any, consisted in the representation as true of facts which were equally open to both parties. In such cases the maxim caveat emptor applies. Hanson v. Edgerly, supra; Page v. Parker, 40 N.H. 71; Big. Fr. 3, 30, 64, 87. The instructions requested omitted the qualification that the defendant had not equal means of knowledge. Without this qualification they contained an erroneous statement of the law, and presenting, as they did, a partial and incorrect statement of the law applicable to the case, were properly refused. Marshall v. Oakes, 51 Me. 308; Sawyer v. E. S. Co.,46 Me. 400; Darby v. Hayford, 56 Me. 246; White v. Jordan,27 Me. 370; Johnson v. Knowlton, 35 Me. 467; Vaughan v. Porter, 16 Vt. 266; Underwood v. Hart, 23 Vt. 120; Thornton v. Thornton, 39 Vt. 122; Stowe v. Heywood, 7 Allen 118; Beers v. H. Railroad, 19 Conn. 570; Marlborough v. Sisson, 23 Conn. 54; Doughty v. Hope, 1 N.Y. 79; I. S. L. Railroad v. Horst, 93 U.S. 291; Ordway v. Sanders, 58 N.H. 132.
Judgment on the verdict.
CLARK, J., did not sit: the others concurred. *Page 184