By the court,
James C. Smith, Justice.By the terms of the contract, as established by the evidence given on both sides, the defendant had a right to rescind if the mare he got of the plaintiff was not as recommended; and the jury have found that the mare was not as recommended, and that the defendant undertook to rescind within the time agreed upon for that purpose. But it appears, also, without dispute, that the defendant, in order to rescind, first took from the possession of a bailee of the plaintiff the mare which he had let the plaintiff have, and shortly after-wards delivered at the residence of the plaintiff, in his absence, the mare and the note which he had received from the plaintiff in exchange.
The jury were instructed that they might properly consider the taking of the mare in question by the defendant, and the return of the mare and note received of the plaintiff as concurrent acts, and that it was of no consequence which occurred first in the order of the transaction, provided it was one continuous transaction, and was so intended by the defendant.
The learned judge, in giving this instruction to the jury, *530expressed much doubt as to its correctness; and I am of the opinion that the exception to it is well taken.
When this case was before the court at special term, on a motion to set aside the first verdict, a construction was given to the agreement in which I fully concur, and which I think was departed from at the last trial. It was then said, in the opinion pronounced, that “ there can be no doubt that, upon such an agreement, where the property is delivered, the title vests in the purchaser and remains in him until the agreement is fully rescinded. If the right to rescind, according to the agreement of sale, accrues to the purchaser, and he exercises it properly and in time, and restores or offers to restore what he received, the title revests in the seller, and the purchaser may recover back what he paid upon the purchase or what he gave in exchange. It is altogether different from the case of an article taken on trial with the right to return at the mere option of the purchaser. In such case, the bargain is not complete.until the trial is made and the option exercised, and no title vests. But the right of rescission, from its very nature, implies a complete bargain, and a title vested in the party rescinding. The right to return or rescind here was fixed by the agreement of the parties in which each was interested, had the right equally to be heard. These views are decisive of the question before us.
The defendant could not have maintained an action to recover the possession of the mare which he let the plaintiff have, without first restoring or offering to restore all that he had received in exchange for it. If he had made such offer, the plaintiff would have had an opportunity to decide for himself, as he had a right to do, whether he would accept the offer, or leave the defendant to his legal remedy. Be might think the contingency had not arisen which, by the terms of the contract, gave the defendant a right to rescind, or that the mare which he let the defendant have, had been injured by his fault or negligence. If, for these *531reasons, though unfounded, or for any other satisfactory to him, he preferred to retain possession of the mare, and leave the defendant to his action, it was competent for him to do so. The title to the mare passed to the plaintiff by the original exchange, and the defendant’s right to rescind springs exclusively from the contract, which, in this respect, is in the nature of an agreement by the plaintiff to sell the mare to the defendant on the happening of the specified contingency. If the defendant can avail himself of the right of rescission in the mode adopted by him, and thus transfer the title from the vendor to himself, it seems to foil oiv that in every case of an executory contract for the sale of personal property, the vendee may compel its performance, by seizing and carrying away the property from the possession of the vendor, and subsequently tendering him the purchase money.
The mare and the note which the defendant returned, were not delivered to the plaintiff personally, but were left in his absence, at his father’s house, where he resided, and i t does not appear that he accepted them, or in any manner treated them as his.
I do not think these ex parte acts of the defendant were sufficient to divest the plaintiff of his title to the mare which he acquired by the exchange.
It seems to me equally clear that the defendant was bound to pay or tender the sum which the plaintiff paid for him to his creditor, Horace Stoddard, and that the tender after suit brought was unavailing.
The jury were instructed that such payment or tender was not necessary, for the reason that the plaintiff’s agreement to pay the defendant was void by the statute of frauds. This ruling assumes that the agreement was unexecuted, but even on that hypothesis it seems to me erroneous.
The evidence shows that at the time of the trade, the defendant was indebted tp the plaintiff's brother, Horace *532Stoddard, for repairing a wagon; that the plaintiff agreed, as a part of the trade, to pay the debt, if it did not exceed one dollar ; that immediately after making the agreement, the parties went together to the shop of Horace Stoddard, to ascertain the amount; that they informed him they had agreed to trade horses, and the plaintiff told him that he was to pay the debt as a part of the “ boot-money,” and that Horace could look'to him for pay; that Horace charged it to the plaintiff; and that the parties shortly after exchanged horses.
By an arrangement between the three, the debt due from the defendant to Horace Stoddard was extinguished at the request of the plaintiff, in consideration whereof the plaintiff agreed with Horace to pay it, and the plaintiff, by assuming the debt, must be considered as having paid that amount to the defendant. (5 T. R., 174; Wilson agt. Coupland, 5 Barn. & Ald., 228; Heaton agt. Angin, 7 N. H., 397.) And the plaintiff’s undertaking is not to pay the debt of a third person, within the meaning of the statute of frauds. (4 Cow., 432; 2 Den., 45; 3 Barb., 209; 6 Duer, 564; 2 Bosw., 392; 19 Barb., 258; 23 Barb., 610, S. C. affirmed; 21 N. Y. R., 412.)
But the agreement was not unexecuted. It appeared by the defendant’s showing, that the plaintiff had in fact paid the debt to Horace Stoddard, by making a turn with him, before the defendant tendered him the amount.
I think there should be a new trial, costs to abide the event.