It is very evident that the defendant was not bound to accept the wood, as it was not of such a quality as the contract called for. . It is also apparent that in such a case the defendant is entitled to a reasonable time to exercise his choice. And I think the defendant was in time, when he went to the plaintiff’s premises the next day and made the examination necessary to qualify him to make his election with' discretion and judgment.
The only point of difficulty is, that the plaintiff’ had" already drawn away three loads of the wood, and made no offer to return it. One load might have been burned up before the defendant was aware of the quality of the remainder ; but when the last load was taken there was no *255difficulty in offering to restore that, and to pay for what had already been used.
And it may be a question whether the title to the wood did not pass when it was measured to the defendant, and no objections made by the defendant, and no objections made by. the defendant’s hired man, who was the defendant’s agent, for the purpose of measuring the wood, and who accepted one load from the pile after it was measured. But waiving the discussion of this question, and allowing the defendant until the next day to examine and accept the wood, I think the referee was right in holding that the receipt of three loads by the defendant without returning or offering to return it, was in law an acceptance of the whole quantity.
The question of fraud does not arise upon the pleadings, but the whole case turns upon the receipt of a part of the wood by the defendant, without offering to restore it to the plaintiff. When a vendee desires to rescind the contract of sale, he must restore or offer to restore to the vendor whatever he has received under it, and a retention of the property by the purchaser, in the absence of fraud, is deemed in law an admission on his part that the contract has been performed. (Reed v. Randall, (29 N. Y. Rep. 358.) If the vendee desires to rescind, he must rescind in toto. It must be done in a reasonable time and wholly. (Chitty on Contracts, 635, 636.)
The case might be different if the quality of the article could-only be known after the trial, and the part received had been used for that purpose, so that it could not be returned; or if the article had no value. (Chitty on Contracts, 398.)
It is clear that the doctrine of Reed v. Randall, is not at variance with the law as it has always been understood, so far as it requires a return of the property in order to rescind the contract of purchase. This was always the law of contracts. So far as that case denies to the purchaser *256the right to damages, because the article delivered under the contract of sale is not what the contract required it to be, it may he considered as not wholly in accordance with the opinion of some of the judges in other and analogous cases. The vendee, it seems to me, ought to have his election, either to return the article because it is not what the contract called for, and thus rescind the sale, or to retain it and recover his damages for a breach of the contract of sale. It is quite obvious, to my mind, that the retention of the article sold should not, in all cases, be deemed a waiver of the conditions of sale. But while the rule declared in Reed v. Randall is regarded as authority by the court in which it was laid down, it is the duty of the Supreme Court to adhere to it. "Without reference to that rule, the defendant is liable in this action for the purchase price of the wood in question. If he had sought to recoup his damages because the wood was not what the contract called for, then the doctrine of Reed v. Randall would have been in point to defeat such a defense. If he had set up the fraud of the plaintiff in mixing in rotten and wet wood, I think the evidence would have tended to establish it, and the damages might have been recouped, according to all the authorities.
[Onondaga General Term, June 30, 1868.Poster, Mullin and Morgan, Justices.]
The result is, that the defendant is required to pay the whole contract price for the wood, without reduction on ‘account of its quality, he having received a portion of it, and not having offered to return that portion when he desired to rescind the sale.
The judgment should be affirmed.
Judgment affirmed.