This action is on a warranty of soundness and freedom from disease on a sale of certain hogs by the defendants to the plaintiff. There were also joined to the count on the warranty the common money counts. On the trial there was conflicting evidence in respect to the warranty, upon *472which no question arises here. But it was claimed by the plaintiff that if he had not proved the warranty he was still entitled to recover on the money counts, on the ground of a failure of the consideration paid for the hogs, as he had proved, as he claimed, that at the time of his purchase of them they were all affected with a disease, of which in the course of three or four weeks they all died, and so they were of no value whatever at that time, and there was therefore an entire failure of the consideration; and the court, on the plaintiff’s request, charged the jury that if they found the facts on this part of the case to be as claimed by the plaintiff, he was entitled to recover upon the money counts the price paid by him for the hogs, with the interest thereon from the time he bought them..
This part of the charge we think erroneous. The rule of the common law is, that where there is no express warranty, and no fraud' in the sale of personal property, the purchaser tabes the risk of its quality and condition. He must therefore suffer all losses arising from latent defects equally unknown to both parties. This rule, which with us was definitely settled by the case of Dean v. Mason, 4 Conn., 432, is now too well understood as prevailing wherever the courts profess to be governed by the principles of the common law to require to be supported by the citation of authorities. But it is impossible to give full effect to this rule upon the idea that the charge in this case was correct, since it follows as a necessary inference from the rule that the total worthlessness of the article sold is as much at the risk of the purchaser, as can be any partial defect which only impairs to some extent its value. In other words, the rule itself would be abrogated in all those cases where the defect in the quality is such as to render the article worthless. But the plaintiff cites in support of a different doctrine the general principle to be found in the text books, that where the consideration of a contract fails the contract may be avoided, and if money has been paid for a consideration which has thus failed it may be recovered back. But the difficulty in the plaintiff’s case is, that there is no failure of consideration where the purchaser *473gets precisely what he agreed to purchase. Where the purchase is of chattels having a commercial value in the market, like live stock, it can not be said of them that they are wholly worthless while the quality of them is unknown, or a secret disease by which they are affected is undeveloped. At the time of this purchase the animals appeared to be free from disease and to be sound. Presumptively the fair market price for such animals was paid for them. They were then of value at the time of the purchase, and as the purchaser takes the risk of the quality where that is equally unknown to both parties, the secret defect which was afterwards developed should have been guarded against by insisting upon a warranty, unless the purchaser expected and intended to suffer any loss arising therefrom. The plaintiff has referred us to no case which supports his view of the law. This of itself is a strong argument against him; and there are also direct authorities to the effect that the total worthlessness of a chattel sold does not amount to a failure of consideration where the purchaser gets what he contemplated when he made the purchase; as where putrid fish wholly unfit for use as food were sold, and there was no warranty of the quality, the plaintiff claimed to recover the purchase money on the ground of the failure of the consideration; but the court said that if, instead of stock fish, the defendant had delivered a quantity of saw dust, the price might have been recovered back; but that stock-fish were delivered, and the defendant could not be permitted to try whether they were fit for use in an action for money had and received. Fortune v. Lingham, 2 Campb., 416. See also Mason v. Chappell, 15 Gratt., 572, to the same effect. Indeed there are many cases where this ground could have been successfully taken if it had been supposed to be tenable, as in Moses v. Mead, 1 Denio, 378, and other cases cited by the defendant’s counsel on their brief.
We advise the superior court to grant a new trial.
In this opinion the other judges concurred ; except Park, J., who having tried the case in the court below, did not sit.