The opinion of the court was delivered by
Peck, J.The fact that, at the time of the contract of exchange between the plaintiff and defendant, the colt which the plaintiff let the defendant have had not been entirely paid for by the plaintiff to Bemis, the conditional vendor, cannot, under the circumstances disclosed, defeat this action. Although it does not appear whether the small balance due Bemis had become payable or not, at the time of the contract between the parties to this suit, yet, as by the contract between the plaintiff and Bemis the colt was to remain Bemis’s property till paid for, the plaintiff, under that contract, had no right to dispose of the colt until the full price was paid. But the plaintiff had an interest in the colt at the time of the contract of exchange, and the contract was bind*555ing on the plaintiff; and the only ground upon which the defendant could claim, at the trial, the right to avoid the. contract must be, either that he had been damnified, or that he was liable to be damnified, by reason of the outstanding claim of Bemis. The defendant never was damnified by reason of that claim. He was never disturbed in his title or possession, nor was his title or right of possession ever called in question by Bemis or any one deriving title or right under him. Before the defendant had interposed any objection to the contract on account of this defect- of title, the plaintiff paid to Bemis the balance his due, and thus perfected the title in the defendant, so that at the justice trial in this case, when the defendant first set up this objection, the plaintiff had obviated it by perfecting the defendant’s title, and putting it beyond the contingency of any claim on the part of Bemis. The fact that it was done after this suit was commenced mates no difference. Therefore if the defendant ever had any cause for avoiding the contract, it was a cause from which he has not been, and cannot hereafter be, damnified, and which was fully removed before he asserted the right to avoid the contract on account of it. This objection cannot avail the defendant as a defense. There is a further reason why this defense cannot prevail. The defendant has never offered to rescind the contract, not even at the trial. The defendant cannot retain the colt and thereby affirm the contract and enjoy the full benefit of it, and at the same time interpose this objection to shield himself from liability for fraud and false warranty in the very contract under which he acquired title and is enjoying the property. The defendant therefore was not entitled to the charge he requested on this point. The other exception is not insisted on.
Judgment affirmed.