This is an action to recover damages for a breach of warranty, in the sale of an article of machinery, called a condenser, bought by the plaintiff of the defendant and alleged to be defective.
One ground on which the defence was rested, in the court below, was, that the plaintiff, on discovering the defects in the condenser, should have given the defendant notice of them, in a reasonable time ; and by neglecting to give such notice, had waived all objection on account of these defects, and was therefore barred of a recovery in this action.
This defence admits that the plaintiff has sustained the injury of which he complains, but assumes that by his silence, he has voluntarily relinquished the right to recover a compensation.
There are three conditions in which the purchaser of a personal chattel may have remedy against the seller. These it may be proper to state, in order to test the validity of this defence. They are
1. Where there is a warranty.
2. Where there is fraud on the part of the seller.
3. Where the sale is on condition, express or implied, that the purchaser, in a certain event, may disaffirm the sale and return the article.
But if the sale is absolute, bona fide, without warranty and for a specific price, the vendee has no 2'emedy for defects in the property. Dean v. Mason, 4 Conn. Rep. 428.
The actions in which these remedies are sought, by the vendee, aré either where he is sued for the price of the article, or sues the vendor for its defects, orto recover back the price, when he has paid for it.
If the property is warranted, and the action is by the vendor against the vendee to recover the price, the defects may be shewn in mitigation of the demand. By proving the warranty and the defects, the vendee may reduce the demand, by a deduction equal to the loss he has sustained by the violation of the warranty. This ground of mitigation is authorized by *421law merely to prevent circuity of action. Cormack v. Gillis, cited 7 East, 480 ^^m¿& King v. Boston, Id. 481. note (a.) Street v. Blay, 2 ??? 456. Where an action is on a quantum valebat^^/Jnum meruit, no price being agreed, the defects in the article, in a suit against the vendee for the price, may be given in evidence, on the ground that they are directly involved in the issue, as shewing the worth of the property for which the suit is brought. Basten v. Battei, 7 East, 479. And in the absence of any warranty or fraud, if no price is agreed, the only opportunity for the vendee to shew the defects in the property, is, when he is sued for its value. But if the price is agreed by the parties, and there is no fraud or warranty, the defects in the property, cannot be proved, in a suit against the vendee for the price, to diminish the damages ; for, the same reasons which preclude a recovery in a cross action, where there is neither fraud nor warranty, apply equally to this defence.
And when the vendee is sued for the stipulated price, he may prove, that by the terms of the contract, he had the right, expressed or implied, to rescind it, and return the property. When this defence is made, he is bound to shew, that the event on which he was entitled to disaffirm the contract, has actually happened, and that notice has been given to the plaintiff, in a reasonable time, that the contract was rescinded, and of the reasons for which it was done. After these events have happened, and notice is duly given that the contract is rescinded, the vendor may take back the property, but cannot recover the consideration ; but the vendee, if he has paid it, may recover it back. Return of the property to the vendor, or notice of its defects, is never necessary, except to enable the vendee to withhold, or recover back, the price, upon the actual disaf-firmance of the contract, and thereby revesting the title in the vendor. In most cases, notice to the vendor, is sufficient; for it is, in general, the duty of the vendor himself to take the property back, when the vendee has notified him of his refusal to keep it, for sufficient reasons ; unless the terms of the contract or other circumstances make it the duty of the ven-dee to redeliver it to the vendor.
In Towers v. Barrett, 1 Term Rep. 133. the condition was expressed in the contract. It was agreed, that if the wife of the vendee did not approve a horse and chaise which he had *422purchased, he might return them to the vendor. They were disapproved, and for that reason, reRirned and left on the premises of the vendor, who refus^^^^^kive them. This action was then brought, by the vern^^^^^cover back the price which he had paid for them. TK^court held, that the plaintiff had legally availed himself of the condition to rescind the contract, and might recover back the consideration money which he had paid. See also Power v. Wells, Doug. 24. n. [8] Cowp. 818. Weston v. Downs, Doug. 23. Payne v. Whale, 7 East, 274. Lewis v. Cosgrave, 2 Taun. 2. Fortune v. Lingham, 2 Campb. 416. Solomon v. Turner, 1 Stark. Ca. 51.
The condition th^t the vendee may return the property, on a certain event, is implied in the case of “ executory contracts ; as where an article is ordered from a manufacturer, who contracts that it shall be fit for a certain purpose, and the article sent as such is never completely accepted by the party ordering it.” Street v. Blay, 2 Barn. & Ald. 456. See also Okell v. Smith & al. 1 Stark. Ca. 107. The latter was an action for the price of 16 copper pans for the manufacture of vitriol. After several trials, the defendants found, that they were not sound, and would not answer the purpose. Bayley, J. held, that it was a question for the jury, whether the defendants had used the pans more than was necessary for a fair trial; and after a fair trial, if they found them insufficient, and gave notice to the plaintiff, he was bound to take them away. If in this case, there was any condition annexed to the sale of the condenser, it was of that character.
Such are the cases cited by the defendant’s counsel.
The case of Hopkins v. Appleby, 1 Stark. Ca. 477. was a suit to recover the value of a quantity of barilla ; an article used for the manufacture of soap. The defendant paid into court what he thought it worth, and defended on the ground that it was not of the stipulated quality. Lord Ellenborough held, that the “defendant should have seasonably notified the plaintiff of its defects; and having omitted to do so, he could not set up those defects as a defence in that action.
Percival v. Blake, 2 Car. & Payne, 514. was assumpsit for the price of an iron vat, which had been found defective. Abbott, Ch. J. held, that where the defects were not discovered and notice given in a reasonable time, the defendant *423could not avail himself' of them in answer to an action for the price, unless some deceit had been practiced by the
In Milner v. Tucker, 1 Carr. § Payne, 15. it was held, by Burrough, J., that if goods were supplied not conformable to the order, the buyer must return them in areasonable time, or he will be bound to pay for them ; and that, if a man take an article, and keep and use it as his own, although it was not according to contract, he is bound to pay for it. The article was a chandelier.
In Cash v. Giles, 3 Carr, & Payne, 408. which was an action to recover the price of a threshing machine, which proved unfit for use, it was held, by Park, J., that it was the duty of the defendant either to have immediately returned it, or given immediate notice to the plaintiff to fetch it away, as it was of no use; but by having kept it several years, he had waived all objections to its goodness, and was bound to pay for it. This, however, refers to objections as then offered, by way of defence against an action for the price, and does not imply that the buyer could not maintain a cross action upon the warranty, if there was any. He had, indeed, foregone his time for rescinding the contract, but had not cut himself off” from any remedy to which he was entitled on its affirmance. And in Groning & al. v. Mendham, 1 Stark. Ca. 257. which was an action for the price of clover seed sold by sample, the defendant contended, that the seed delivered did not accord with the sample ; but it was held, that before he could go into such a defence, he must prove that he had offered to return the seed, upon discovering its inferiority.
Upon these cases the defendant has relied, to shew, no recovery can be had on the warranty, because notice was not seasonably given of the defects in the condenser. If this were a suit against the vendee to recover the price, or against the vendor to recover back the consideration paid, those and other cases might be considered as relevant. They refer to those cases where the vendee either claims, or defends, on the ground, that the contract has been rescinded, and is no longer open. Such proof, in the present suit on the warranty,instead of aiding, would defeat the action ; for the suit is upon the contract, and could not be sustained, if that had been rescinded ; and notice of the defects is never necessary, except for the purpose of nullifying the sale and revesting the vendor *424with the title. If the plaintiff has not repudiated this con- - tract in a reasonable time, the only consequence is, that he has ratified it. This the present suit assumes, and is brought in affirmance of the sale.
A sale may also be rescinded, by the vendee, in a reasonable time, if the vendor is guilty of fraud in misrepresenting the article sold. But in all cases of fraud or warranty, where the vendee has the right of disaffirmance, he may keep silence, and bring his action, in affirmance of the sale, either for the fraud or upon the warranty. After a full acceptance by the vendee, with knowledge of the defects in the property, or neglect to obtain that knowledge, his right to annul the sale is extinguished, but his other remedies are unimpaired.
There has been some diversity of opinion among eminent jurists, whether a vendee, to whom an absolute sale has been made with warranty, upon discovering defects in the property, could return it to the vendor and rescind the contract, when there was no fraud in the transaction. In Curtis v. Hannay, 3 Esp. N. P. Ca.83. an affirm ative decision on this point was made at Nisi Prius, by Lord Elclon. Mr. Starkie adopts the same opinion, in his treatise on Evidence, part 4. p. 646. But in 1831, these opinions are considered, by the court of K. B., and expressly disapproved. Street v. Blay, 2 Barn, Adol. 456. They unanimously held, that if the sale was unconditional and without fraud, the vendee could not rescind the contract and return the property, without the concurring assent of the vendor. Thus the law is settled upon this point, in that country.
In Fielder v. Starhin, 1 H. Bla. Rep. 17. which was an action on the warranty of a mare, the defendant obtained a rule to shew cause why the verdict should not be set aside, on the ground that the plaintiff had not returned the mare, or given seasonable notice of her unsoundness. The court of Common Pleas held, unanimously, that no notice or return was necessary to be shewn in an action on the warranty. Heath, J. adds, that if the action had been for money had and received, an immediate return must have been shewn.
Thornton v. Wynn, 12 Wheat. 183. was an action against the defendant, who had indorsed a note to the plaintiff in payment for a race horse sold to him with warranty. Evidence was exhibited to shew, that the horse was incurably unsound, *425and wholly unfit for the object for which he was purchased ; and that the defendant, as soon as the defects were ascertained, offered to'return him to the plaintiff, who refused to take him back. The court charged the jury, that if they found these facts true, they constituted no defence, unless the defects were known to the plaintiff, at the time of the sale. Upon a writ of error, the supreme court of the United Slates unanimously affirmed this opinion. They held, that nothing but fraud in the sale, or a conditional contract, would authorize the vendee to rescind the agreement.
When the sale is conditional or fraudulent, the vendee may waive his right of rescinding it, by his own choice or neglect. This action for damages is not impaired, by the loss of that right. The vendor can never complain, that the vendee has not rescinded the contract. We are, therefore, of opinion, that this objection to the plaintiff’s right of recovery is groundless.
Another exception taken at the trial, was the variance between the contract stated in the declaration and that shewn by the evidence. The proof consists wholly of a written correspondence between the parties. From this it appears, that the contract was for all the machinery mentioned in the first count, and at the price there stated, to wit, a jack, a picker, a condenser with Cards attached to it, and 72 feet of machine cards, for 445 dollars. That sum is composed of the prices of the respective articles, and ten dollars for the transportation of the whole. The price of the condenser with the cards attached, is set at 75 dollars. This was all one contract. It was to sell and transport to the plaintiff’s mill all these articles, and put them up, for 445 dollars. There was no agreement to sell a condenser alone, and put it up, for 75 dollars, as is averred in the second and third counts ; but the further sum of ten dollars for transportation, was a compensation extending to the whole. A contract with all its stipulations need not be set out in the declaration, but those parts only which are material to the action. But nothing can be omitted which constitutes any part of the consideration. The several articles were furnished, in this case, at the stipulated price, in consideration that the plaintiff took them all. He was bound to take the whole, if any. He could not refuse part, and recover damages for a refusal to deliver the residue. *426The contract, therefore, stated in the second and third counts, - that the defendant sold the plaintiff the condenser at 75 dollars, is fatally variant from the contract proved.
The first count avers, that the machinery was agreed to be delivered “in six weeks” from the 10th day of September, 1838. The evidence is, that it was to be delivered ‘⅛ about six weeks” from that time. A contract to deliver in about six weeks would be fulfilled, by a delivery the day after six weeks had elapsed ; but a contract to deliver “ in six weeks” from a given time, is broken, by a single day’s delay after that period has expired. This cannot be controverted. The contract, therefore, stated in the first count, and that proved, are not identical, but variant. We regret this, but cannot relax the important and unyielding rule, which is applicable to the point.
It has been said, that as there is no complaint in the declaration,that the property was not delivered in time, this part of the contract is immaterial in this case, and within the rule which dispenses with a statement of those parts of the contract which are not material to the action. But here is a misstatement of an important stipulation, which always constitutes a variance, although an omission might be no ground of exception.
We consider the declaration as unsustained by the evidence, and therefore, grant a new trial.
Williams, Ch. J., and Church and Storrs, Js., were of the same opinion. Waite, J.The plaintiff in this case brought his action upon the warranty of certain articles of inachinery sold to him by the defendant. On the trial, the defendant claimed, that no recovery could be had, on the ground of variances between the allegations and proof.
By the law of this state, if the evidence will support either count, the defendant’s claim for a new trial cannot prevail. Wolcott v. Coleman, 2 Conn. Rep 324. The principal variance between the allegations in the first count and the evidence, relates to the time when the machinery was to be delivered. The averment is, that it was to be delivered in six *427weeks from the 10th day of September, 1838: the evidence is, that it was to be delivered in about that time.
Is that variance material and fatal ? It might have been, had the plaintiff sued for not delivering the machinery within the stipulated time. But that is not the present case. The plaintiff does not complain of the non-delivery, hut of the quality, of one of the articles delivered.
It is not denied but that the consideration for the defendant’s promise, is truly stated. The variance is only in that promise.
The rule is now perfectly well settled, that in declaring upon a contract, it is not necessary to set out all the promises made by the defendant, but only such as the plaintiff claims to have been broken. If he goes further, and states such as are not material to the questions in issue, he is liable to censure. Indeed, one reason for the decision in Bristow v. Wright was, in the language of Lord Mansfield, to “ prevent the stuffing of declarations, with prolix, unnecessary matter.” Doug. 668.
Thus, in an action on the warranty of a horse, the allegation was, that he was worth 80/., and a young horse ; the proof, that he was worth 80/. was sound, young, and had never been in a harness. It was held, that there was no variance ; that the plaintiff was only required to state truly those parts of the defendant’s promise of which he complained. Miles v. Sheward, 8 East 7.
So in an action upon a warranty of a quantity of bacon sold, it was simply averred, that the defendant promised that it was prime bacon. The bill of sale produced, shewed the promise to have been, that it was prime singed bacon of Strangeman’s manufacture. And this was holden to be no variance. The court said, that the plaintiff must state all that relates to the point of which he complains ; and beyond that he need not go. Cotterill v. Cuff, 4 Taun. 285.
This doctrine has not only been repeatedly recognized, by the English courts, but has received the sanction of this court. Thus, Hosmer, C. J., in giving his opinion in Curley v. Dean, 4 Conn. Rep. 265. says: “ The promise sought to be enforced need not be co-extensive with the one actually made; it being sufficient to state so much of the contract only as evinces *428the engagement on which the plaintiff grounds his action.” See Packer & al. v. Palmer, 4 B. Ald. 387.
In this case, the plaintiff grounds his action upon a breach of the warranty of one of the articles which he purchased of the defendant. It was only necessary for him to set out so much of the defendant’s contract as shewed the warranty. The time and manner of the delivery was not the ground of complaint, and need not have been stated; and all that relates to that subject is surplusage.
But it is said, that although it was noi necessary for the plaintiff to have stated that part of the contract, yet having done it, he is bound to prove it as alleged. This probably presents the most serious question in the case.
Had the plaintiff declared upon a deed, or an instrument in writing, setting it out as such, in the declaration, perhaps according to the authority of Bristow v. Wright, the variance might be fatal. But I apprehend an examination of the more modern authorities will shew, that the present case does not fall within the rule recognized in that case. Doug. 665.
In a note to that case, it is said, that it is now settled, that the strictness of that case holds only in cases of records and-written contracts.
Buller, one of the judges by whom that case was decided, afterwards admitted, that the correctness of that decision had been sometimes doubted. Peppin v. Solomons, 5 Term Rep. 496. In another case, he remarked, that the court had repeatedly said, that case was not an authority beyond the cases of contracts, and added, perhaps the rule laid down in that case would be found to extend to all cases of records and written contracts. Gwinnet v. Phillips, 3 Term Rep. 646.
And Judge Gould, in giving his opinion in Bulkley v. Landon, 2 Conn. Rep. 413. speaking of the case of Bristow v. Wright, and the cases there cited, said, they had placed the rule beyond debate, that a record or written instrument, when alleged in pleading, must be proved precisely as set out, unless the statement of it is so entirely impertinent that the whole of it might be struck out, without injury to the pleadings.
So the supreme court of the United States, in speaking of a variance between a contract as alleged and proved, said, it will be recollected, that this does not purport on the face of the declaration to be a description of a written instrument, *429clearly irn-J nor the recital of a deed or record in haec verba plying a distinction between a written instrument, described in the declaration, and a parol contract. Ferguson v. Harwood, 7 Cranch 408.
If, then, the rule laid down in Bristow v. Wright is limited in its operation to records, deeds, and written instruments, the present case will not fall within it, although founded upon a contract. For although the contract is proved, by the correspondence between the parties, yet there was no* written contract within the language used. And there is very good reason for such limitation, aside from the authorities cited. For if a party recites a record, deed or written instrument in his declaration, there may be more propriety in holding him to greater strictness, than when he declares upon a parol contract, to be proved, often times, by the vague and uncertain recollection of witnesses at the trial.
The hardship of that rule was felt by Lord Mansfield himself, in giving his opinion, and has often since been complained of, not only by suitors, but by judges. Ferguson v. Harwood, 7 Cranch, 408. Gwinnet v. Phillips, 3 T. R. 646. Peppin v. Solomons, 5 T. R. 497. Sheehy v. Mandeville, 7 Cranch, 478.
And in modern times, more liberal and rational rules have been adopted, and decisions extending the rigour of the law of variance, have been overruled, and the law placed upon more just and equitable principles.
Thus, in an action against a sheriff for a false return, the declaration stated a judgment recovered in Trinity term. The judgment produced was rendered in Easter term. And this was holden not to be a fatal variance. Abbott, Ch. J. Whatever may have been the rule upon this subject in ancient times, a distinction is now established between allegations of substance and allegations of matter of description. The former require to be substantially proved ; the latter must be literally proved. If, therefore, the allegation that the plaintiff, by judgment, recovered, &c., be an allegation of substance only, it was sufficient to prove any judgment to warrant the writ. And although the plaintiff alleged a judgmentprout patet per recordam, it was holden to be an unnecessary averment, and might be rejected as surplusage; and that, if it could be altogether struck out of the declaration, without injuring the *430plaintiff s cause of action, it was quite clear, that the proof , \ , , . ,,r , necessary to support such an allegation (when material) need not be given. Stoddart v. Palmer, 3 B. & C. 2.
So in an action against a sheriff for taking insufficient pledges in a replevin bond; the declaration alleged, that the plaintiff distrained the goods of one Field, who afterwards, at the next county court, before certain persons, then suitors of said court, appeared and levied his plaint. The record, when produced, shewed, that the court was holden before persons different from those named in the declaration. The court held the variance immaterial. Bayley, J. referring to some modern cases, said, in them, “the court had put questions of this nature upon a reasonable and beneficial ground ; and as far as they could, have prevented parties from being turned round in matters of form, which had no connexion with the justice of the case.” Draper v. Garrat & al. 2 B. & C. 2.
Such, at the present time, seems to be the law upon the subject of variance. Let us apply it to the case under consideration.
The plaintiff sues for a breach of warranty as to the quality of a particular article of machinery purchased of the defendant. He states truly and correctly the consideration for the defendant’s promise, and so much of that promise as he claims to have been broken. He was bound to do no more. He has, however, gone further, and attempted to state the time within which the articles were to be delivered ; and upon examining the correspondence of the parties, a single word is omitted, relating to the time of delivery. But at the same time, he states, that the articles were delivered by the defendant, and received and paid for by the plaintiff, under, and in pursuance of, the agreement of the parties. The variance, therefore, is of no sort of importance as regards the merits of the controversy. It affects not, in any manner, the promise for the breach of which the plaintiff sues. The substance of the averment, (the sale and delivery of the articles,) is admitted in the declaration.
The plaintiff sets out no deed or instrument in writing; and therefore, does not bring his case within the harsh rule of Bristow v. Wright. The time of the delivery of the articles» in this case, surely could be no more important than the time of the rendition of the judgment in the case cited.
*431The remarks of the late Chief Justice Marshall, seem to apply to this case with peculiar force: “ Courts,” said he, “ being established for the purpose of administering real justice to individuals, will feel much reluctance at the necessity of deciding a cause on a slip in pleading, or on the inadver-tance of counsel. They can permit a cause to go off on such points only, when some rule of law, the observance of which is deemed essential to the general administration of justice, peremptorily requires it.” Sheehy v. Mandeville, 7 Crunch, 208.
Upon the trial of this cause, I could not but feel that it would be productive of manifest injustice to prevent the plaintiff from proceeding with his cause, in consequence of a variance so unimportant and immaterial. And after a careful and deliberate examination of the authorities upon the subject, I cannot find any conflict between the law and the justice of this case. I can discover nothing, which, in the language of Mr. Justice Bailey, will prevent this court from doing what, in modern times, courts have repeatedly done, place the question upon reasonable and beneficial grounds, and not turn a plaintiff round upon a mere matter of form, having no con-nexion with the justice of the case.
Upon the other points I concur in the opinion expressed by the majority of the court. I would, therefore, not advise a new trial.
New trial to be granted.