The opinion of the Court, after a continuance nisi, was drawn up by
Weston C. J.If the defendant would rescind the contract, out of which the note in controversy grew, on the ground of fraud, he should, as soon as he discovered the fact, have given notice to this effect, to the plaintiffs, assigning or offering to assign to them what he received, or the proceeds of it. This is required by the uniform current of authorities.
From the view we have taken of the cause, we do not regard as material the testimony of Edward P. Baldwin, the admissibility of which was objected to by the counsel for the plaintiffs. The de*18fendant, retaining the consideration, cannot treat the note as fraudulent and void. It is not necessary to resort to the ingredient of fraud, to do justice to the defendant. The facts reported and found by the jury, from testimony not objected to, independent of any direct false representations, are quite sufficient to sustain the verdict. It is not necessary then to decide the question raised as to tire competency of the testimony upon which the jury found, that such false representations were made.
The note acknowledges that value was received, which is prima facie evidence of the fact. But between tire original parties, the consideration is open to inquiry. It might perhaps have been difficult, from the nature of the property, to estimate the exact value of what the defendant received; but we are relieved from that difficulty, by the express agreement of the parties. The value fixed, was the one half of what the plaintiffs paid to Nathaniel Match, which half was two hundred and fifty dollars. This valuation, settled by compact between the parties, must be conclusive as to the consideration received. The rate paid to Hatch, was the measure of value, proposed by the plaintiffs and accepted by tire defendant. When, therefore, the defendant promised to pay one thousand dollars, acknowledging the receipt of so much in value, he evidently acted under a mistake. He had in truth received but one fourth part of that smn. The other three fourths, supposed to have been received, never had any real existence. It is not material to inquire from what cause the mistake originated. Whether it was mutual, or whether it was occasioned by the practices of the plaintiffs, the defendant is equally entitled to be relieved from its injurious consequences. The jury have, as we think, very equitably and properly, charged him only to the extent of die consideration received.
Judgment on the verdict.
NOTE.
The question, whether in an action for the recovery of the price of an article, sold with warranty of its goodness, or in relation to which there was a fraudulent misrepresentation, the defendant maj' give in evidence the breach of warranty, or fraud, in reduction of the plaintiff’s claim, without having returned the article, seems to have been, as yet, undecided in this State.
*19Kimball v. Cunningham, 4. Mass. R. 502; Conner v. Henderson, 15 Mass. R. 319, before the separation of this State from Massachusetts, and Norton v. Young, 3 Greenl. 30, since, are cases where the party attempted to rescind the contract and avoid it entirely, and have no application to this inquiry. The case of Lloyd v. Jewell, 1 Greenl. 352, was an action on a noto given for the purchase money of land conveyed by deed with covenants of warranty of title, and a failure of title to pari of the premises was set up to reduce the damages. The decision of the Court, that this evidence was inadmissible for that purpose was placed on the ground, that the only remedy was on the covenants of the deed, and denies, that the principle now under consideration applies in that case.
In Massachusetts no case has been found decisive of the question. Rice v. Goddard, 14 Pick. 293, in which the authority of Lloyd v. Jewell is denied, and, Dickinson v. Hall, ibid. 217, merely decide, that an entire failure of consideration is a good defence to an action for the purchase money. The decision in Parish v. Stone, 14 Pick. 198, is founded on the same principle, as Stevens v. McIntire, and does not profess to decide the subject of this inquiry.
In New York the affirmative has been fully established by a series of decisions. Beecker v. Vrooman, 13 Johns. 302; Sill v. Rood, 15 Johns. 230; Hills v. Banister, 8 Cowen, 31; M'Allister v. Reab, 4 Wend. 483, and the same case in the Court of Errors, 8 Wend. 109. Other cases in this country have been noticed affirmatory of the principle. Miller v. Smith, 1 Mason, 437; Steigleman v. Jeffries, 1 Serg. & R. 477; 2 Kent's Com. 3d Ed. 476, and cases cited in note a; Shepherd v. Temple, 3 N. H. Rep. 455, where it was held, that proof, that the article sold was of no value to the purchaser, furnished a good defence in an action for the price, without a return of the article.
On the other side, in some of the States, decisions have been made in the negative. 2 Kent's Com. 3d Ed. 474.
In England the authorities are in some degree conflicting, hut the latest, which have been found on the subject, and which are of very high authority, seem to settle the law' there in accordance with that in New York. Among them are Street v. Blay, 2 Barn. & Adol. 456, (22 Com. L. Rep. 124); Poulton v. Lattimore, 9 Barn. & Cr. 259, (17 Com. L. Rep. 373); and Pearson v. Wheeler, 1 Ryan & Moody, 303, (21 Com. L. Rep. 446).
Circuity of action and multiplicity of suits are always to be avoided, where justice can ho done without them; and on the whole view of the cases, the true principle is believed to be this;—
In an action for the recovery of the price of an article sold, where the seller lias warranted its goodness, or in relation to which he has made a fraudulent misrepresentation, the breach of warranty, or fraudulent misrepresentation, may be given in evidence to reduce the damages, although the article has not been returned.
Where an exchange has been made, under similar circumstances, and an action is brought for the difference money, the same rule would follow; and some of the cases cited are of that description.