The precise question in this case is, whether a purchaser of personal property, sold to him with an express warranty, and taken into possession by him, can rescind the contract and return the property, for breach of the warranty, when there is no fraud, and no express agreement that he may do so. It appears from the cases cited for the plaintiff that in the English courts, and in some of the courts in this country, he cannot; and that his only remedy is on the warranty. See also 2 Steph. N. P. 1296; Addison on Con. (2d Amer. ed.) 272; Oliphant’s Law of Horses, 88; Oripps v. Smith, 3 Irish Law R. 277.
But we are of opinion (notwithstanding a dictum of Parsons, C. J. in Kimball v. Curmingham, 4 Mass. 505) that, by the law of this commonwealth, as understood and practised upon for more than forty years, there is no such difference between the effect of an implied and an express warranty as deprives a purchaser of any legal right of rescission under the latter, which he has under the former; and that he to whom property is sold with express warranty, as well as he to whom it is sold with an implied warranty, may rescind the contract for breach of warranty, by a seasonable return of the property, and thus entitle himself to a full defence to a suit brought against him for the price of the property, or to an action against the seller to recover back the price, if it have been paid to him. In Bradford v. Mcmly, 13 Mass. 139. where it was decided that a sale by sample was tantamount to an express warranty that the sample was a true representative of the kind of thing sold, (and in which case there was no fraud,) Chief Justice Parker said ■( If a different thing is delivered, he ” (the seller) “ does not perform his contract, and must pay the difference, or receive the thing back and rescind the bargain, if it is offered him.” This, It is true, was only a dictum, and not to be regarded as a decisive *612authority. But in Perley v. Balch, 23 Pick. 283, which was an action on a promissory note given for the price of an ox sold to the defendant, it was adjudged that the jury were rightly instructed that if, on the sale of the ox, there was fraud, or an express warranty and a breach of it, the defendant might avoid the contract by returning the ox within a reasonable time, and that this would be a defence to the action. In Dorr v. Fisher, 1 Cush. 274, it was said by Shaw, C. J., that, “ to avoid circuity of action, a warranty may be treated as a condition subsequent, at the election of the vendee, who may, upon a breach thereof, rescind the contract and recover back the amount of his purchase money, as in case of fraud. But if he does this, he must first return the property sold, or do everything in his power requisite to a complete restoration of the property to the vendor; and without this he cannot recover.” The chief justice took no distinction between an express warranty and an implied one, but referred, in support of what he had said, (with other cases,) to Perley v. Balch, cited above.
In 1816, when the case of Bradford v. Manly was before this court, and afterwards, until 1831, the law of England, on the point raised in the present case, was supposed to be as we now hold it to be here. Lord Eldon had said, in Curtis v. Hannay, 3 Esp. R. 82, that he took it to be “ clear law; ” and so it was laid down in 2 Selw. N. P. (1st ed.) 586, in 1807, and in Long on Sales, 125, 126, in 1821, and in 2 Stark. Ev. (1st ed.) 645, in 1825. In 1831, in Street v. Blay, 2 B. & Ad. 461, Lord Eldon’s opinion was first denied, and a contrary opinion expressed by the court of king’s bench. Yet our court subsequently (in 1839) decided the case of Perley v. Balch. The doctrine of that decision prevents circuity of action and multiplicity of suite* and, at the same time, accomplishes all the ends of justice.
Exceptions sustained.