As the deterioration, in the value of the horse, was not on account of any secret injury, and as the plaintiff below voluntarily took back the horse, and delivered up the note to the defendant, without any objection or reservation, as to the condition in which the horse then was, the law holds the plaintiff concluded by that act, because he thereby rescinded the contract of sale unconditionally.
If he had, then, set up the claim which he now attempts to enforce, the defendant might have chosen to keep the horse, and abide by the first contract, which he had a right to do.
Injustice has been, done, and the judgment ought to be reversed.
Judgment reversed.