The opinion of the court was delivered by
Redfield, J.The questions of law arising in this case are nice, and not free from diificulty ; and they ,are embarrassed with inferences of facts, — which can, with propriety, only be drawn by the auditor.
1. As the facts stand, the first inquiry is, could West compel jCutting to have taken the tea back? We think not. There is no ¡pretence of any fraud on the part of Cutting, or of any agreement to take the tea back. The tea “ was not good,” — a very uncertain definition of quality, and one which has been once held by this court to have no meaning, in a contract as to the quality of stoves; but the most, which could be made of it, is a warranty and a breach of it; which will only enable the vendee to recover damages for the breach, but will not entitle him to rescind and recover back the considera*539tion. This is well settled, both in this country and England Thornton v. Wynn, 12 Wheat. 183; 6 U. S. Cond. R. 508.
2. Was there any contract of absolute rescinding, so as to make Catting a debtor, either for the money, or for the tea, unless called fori We think not. There was no claim for the money. The defendant said he should have some good tea soon and would replace it; and to this West assented; — for by the report it does not appear but that he was personally present; and if he were not, it would make no difference; but we must take it as it is, — to this taking tea again he assented.
3. Was Cutting, then, to carry the tea to West ? The term “ replace,” used by the auditor, is not intended to determine this, we take it; for if so, he could have been more explicit, and would have been, if that had been his intention; — but this is either the language made use of, or its equivalent. We do not attach any such importance to it, as we might in a written contract; for here we cannot know, that he used that word. If he said he would let Mr. West have some tea again, or pay him that amount, five dollars, in tea, or he should have some tea that would suit, — which is more probable, perhaps, — ten witnesses, who heard it, would use, each, different language in relating it, and the auditor still different from all, perhaps ;— so that all we understand the auditor to find on this point is, that the defendant said he would pay the plantiff in tea again, and the plaintiff acceded to it.
We think it obvious, then, that the defendant was not bound to deliver the tea, until called for, (unless there was some understanding to that effect, — and if so, it should be found by the auditor,) for two reasons; — 1, It is wholly inconsistent with the uniform custom and course of business in the country, — so much so, as to be almost ludicrous; — 2, One quality of what was such tea as the defendant bought and sold had been sent and returned ; there was, then, an improbability, that he would send again; he would naturally choose to have the plaintiff see it and suit himself. This, then, seems to us the exact legal obligation of the defendant, at the time the tea was returned, as the facts are reported by the auditor.
4. If this is the legal obligation, then, of the defendant, we do not see how it becomes an obligation to pay money by mere lapse of time. If the defendant were to send the tea, doubtless he should *540send it in a reasonable time; and if he fail, he is liable in this form of action. But if the plaintiff is to call and take it, then the defendant is not liable, until called upon, or until he consents to let it go in account, — which is not found, and is not an inference of law, and not a probable inference of fact, if the defendant had at the time no account against the plaintiff.
But the important facts, in regard to this case, should be more definitely found by the auditor. We think there must have been some definite understanding of the parties, at the time, in regard to this item; and that should govern, and it can be found by auditors; we think more proper, that the case should be determined upon the understanding of the parties, at the time, than upon any mere technical legal intendment. For this purpose the case will be referred to auditors in this court.
Judgment reversed, and case referred to auditors.