delivered the opinion of the court, October 18th 1875.
It was clearly competent for the plaintiff to prove that, when he purchased the mare in November 1872, her eyes were diseased; and in order to show that the disease was not temporary but permanent and incurable, that it continued until November 1873, when one of her eyes became wholly blind and the sight of the other was greatly impaired. But evidence as to the condition of her eyes in November 1873, was not admissible per se for the *144purpose of showing that they were diseased at the time of the sale; and it should not have been received if there was no evidence tending to show what their condition was during 'the ten months immediately preceding that date. If the defendant was guilty of fraud in the sale and warranty of the mare the plaintiff had the right to rescind the contract, and upon returning or offering to return her, to recover back the price paid in an action on the case for deceit, or in an action of assumpsit or case for the fraudulent warranty: 1 Chit. PI. 137. But if there was no fraud or deceit in the sale, the plaintiff had no right to rescind the contract for the alleged breach of warranty, and to return the mare without the defendant’s consent: Kase v. John, 10 Watts 107; Sedgwick on Damages 286-7. It is true that he might sue either in assumpsit or case for the breach of the warranty: Vanleer v. Earle, 2 Casey 277; but the measure of his damages would be — not the consideration or price paid, but the difference between the actual value of the mare, and her value, if sound, with interest from the date of the sale. Where there is no fraud or agreement to return, the vendee cannot rescind the contract after it has been executed, but his only remedy is an action on the warranty. In this case it is not alleged that the defendant was guilty of any fraud or deceit in the sale and warranty of the mare, nor is there any evidence that he knew or had any reason to believe,that her eyes' were permanently and incurably diseased at the time of the sale. The p>laintiiF, therefore, had no right'to return the mare, and the defendant was not bound to take her back and refund the price. It follows that there was error in overruling the defendant’s offer to show that he refused to accept the mare when she was returned by the plaintiff, and that soon afterwards she was sold as a stray for about the same price the plaintiff paid for her ; and for not charging, as requested in defendant’s fourth point, that the horse, or the value thereof, is to be considered as the property of the plaintiff. The defendant had the right to show the price for which the mare was sold, as a stray, by the constable, as .evidence of her value at the time of the sale to the plaintiff; and he was entitled to the instruction prayed for, in order to limit the plaintiff’s recovery to the difference between the actual value of the mare, and her value, if sound, as warranted, with interest thereon from the date of her sale. The other assignments of error are not sustained, but for the reasons given, the judgment must be reversed.
Judgment reversed, and a venire facias de novo awarded.