It has appeared to me that the complaint in this case might well be' sustained on the first ground taken by the counsel for the plaintiff. He contends that where a number of articles are bought at the same time, and a separate price agreed upon for each, although they are all included in one conveyance or bill of sale, yet the contract, for a sufficient cause, may be rescinded as to part, and the price paid be recovered back, and it may be enforced as to the residue. This is certainly the doctrine of the case of Johnson v. Johnson, 3 Bos. & Pul., 162. And that case is cited, and at least impliedly approved in Miner v. Bradley, 22 Pick., 457. To the same effect is the case of Manning v. Humphreys, 3 E. D. Smith, 218.
Of course a different rule prevails where the contract of sale, covering several articles, is not severable, but is entire. There the party is not at liberty to rescind the contract as to *80a part of the articles, and treat it as subsisting as to the residue. In that case, if, for any reason, be would rescind the contract, be must do it in toto. Weed v. Page, 7 Wis., 503. Now the question arises, Do the allegations of the complaint bring the case witbin the principles of the decisions' first above cited? According to those, averments, the parties themselves agreed upon the amount to be paid for the exclusive right to manufacture the “ Self-Rising Elour.” Eight hundred dollars was the sum fixed upon for that right. That sale is distinct from the one relating to the articles of personal property; and, witbin the principles of Johnson v. Johnson and Manning v. Humphreys, the plaintiffs can recover the price of that article without offering to restore the others. They have paid eight hundred dollars upon a consideration which has failed, and they are .entitled to recover that sum from the defendant in an action for money bad and received. Cushing v. Rice, 46 Maine, 303; Jones v. Ryde, 1 Eng. C. L., 166; Ketchum v. Stevens, 19 N. Y., 499; Hurd v. Hall, 12 Wis., 112; Lawton v. Howe, 14 id., 241.
The chief justice, however, thinks that the complaint shows a cause of action for a failure by the defendant to fulfill the contract which be made, and that the action can more properly be rested upon that ground. It seems to me tbat.the action can be maintained upon that ground, as well as for a failure of consideration. the defendant represented that be. owned the exclusive right of manufacturing and selling the Self-Rising Elour and the recipe witbin the state, and .that be acquired this right from D’Wight & Co., by an agreement made between them and bis son for bis own benefit. This right be undertook to convey to the plaintiffs for a specified sum, but failed to comply with bis contract. It is alleged that be bad not the right which be attempted to sell, and that the pretended written agreement of Dwight & Co. was not a genuine agreement, but was *81spurious and void. The action may be regarded as proceeding upon an express or implied warranty of title to an agreement and exclusive right which the defendant sold as his own.
Chancellor Kent, in 2 Com., p. 478, says: “In every sale of a chattel, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession ,of the article, and he sells it as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. A fair price implies a warranty of title; and the purchaser may have a satisfaction from the seller, if he sells the goods as his om, and the title proves deficient. This was the rule also of the-civil law in all cases, whether the title wholly or partially failed. In most of the United States the rule of the common law is understood to be, that the mere fact of a sale of chattels implies a warranty of title to the thing sold. See cases in notes to Chitty on Contracts, p. 389, and 1 Parsons on Contracts (5th edition), pp. 573 et seq. But it seems that in England the rule is different, and that there is no implied warranty of title on a sale of goods; and if there be no fraud, the vendor is not liable for a bad title, unless there is an express warranty, or an equivalent to it by declarations or conduct. Morley v. Attenborough, 3 Wels., Hurl. & Gord., 500. Yet even in this case, Parií, B., says, if a tradesman in the way of trade sells goods at his shop, he must be considered as warranting the title; and he cites a number of English authorities which hold that where one in possession of a personal chattel sells it, the bare affirming it to be his own amounts to a warranty. In Hurd v. Hall and Lawton v. Howe, supra, the chief justice holds that there is an implied warranty of title in the sales of written instruments or things in action, where the vendee does not obtain what he bargained for, and his views are supported by many *82authorities. See also the cases referred to by Judge Red-field in his notes to Dumont v. Williamson, Am. Law Reg., April, 1866, where he shows that the undoubted weight of authority still is, that one passing a note or bill by mere delivery, assumes an implied obligation in all cases, unless there is something to show a different purpose, that the same is genuine, and what it purports to be on its face, and that he has the legal right to transfer the title to the instrument.
These principles in regard to the sales of personal property and choses in action seem to me applicable to the facts stated in the complaint; especially when we consider the representations of the defendant. He represented that he owned the exclusive right which he offered to sell, and that he acquired it by the -written agreement therein mentioned. In Jones v. Ryde, 5 Taunt., 488 (1 Eng. C. L., 166), C. J. Gibbs says, if he who negotiates a note, or other instrument of like nature, which passes by indorsement, does not indorse it, he does not incur the liability which an indorsement would bring upon him; but this declining to indorse the instrument does not rid him of that responsibility which attaches on him for putting off an instrument as of a certain description, which turns out not to be such as, he represents it. This remark is founded in good sense and morality, and applies to the case set forth in the complaint, with great force.
It has been suggested that it was the duty of the plaintiffs to know, when they purchased the exclusive right mentioned, that, from the nature of things, no such right could exist or be conveyed. Eor myself, I am not prepared to say that it is an utter impossibility for a person, by any combination of chemical agencies, to produce an article of self-rising flour for which he would be entitled to a patent under the patent laws of the United States. The country is full of patents of one kind and another — some of which would seem to be for things of as little value or beneficial use as *83such a patent would be. It does not seem to me at all analogous to the case where a person should attempt to sell and convey the exclusive right to breathe the air, or warm in the sunshine, or do any other thing that all have a right to do. The impossibility of securing an exclusive right to manufacture “ Hecker Bros.’ Self-Rising Elour,” is not so perfectly obvious, that we can say no prudent man would contract for the right. And unless it is so, it seems to me we cannot pronounce the contract void for its inherent absurdity.
Under the code practice, it has not seemed to me very important to inquire whether this should be treated as an action to rescind the contract of sale for the exclusive right and reclaim the price paid, or as an action for a breach of warranty. The facts stated will sustain an action on either ground. The only damages claimed for a breach of the contract are the consideration paid. The defendant did not and could not comply with that part of the contract by which he undertook to convey the exclusive right. As there was nothing received by the plaintiffs, there is nothing to be returned to make the rescission complete. According to the complaint, no title to the exclusive right to manufacture the Self-Rising Elour ever passed to the plaintiffs. Even if the action be founded on the warranty of title, ought not the defendant at least to make restitution of the price of the exclusive right which he did not and could .not sell ? It appears to me he should. Pothier states that by the Erench law, while a clause in the contract by which the seller stipulates that he will not be liable to warranty, prevents any claim against him for the buyer’s damages resulting from his inability to defend him against creditors and to fulfill his' promise to cause him to have the thing, yet this does not discharge him from liability to a restitution of the price. Treatise on Contracts, part 2, chap. 1, Art. 7 et seq. It seems to me, such a rule might well be applied to the facts stated in the complaint, even if the. action be founded upon the warranty. *84Rut tbe question of damages is not properly before us, and I have made these suggestions in answer to some objections taken, that in an action for a breach of warranty of title the price paid for a thing utterly valueless to the vendee could not be recovered back. See Scranton v. Tilley, 16 Texas, 184, and cases cited on page 194.
I think the complaint states a cause of action, and that the demurrer was improperly sustained.
By the Court. — The order of the circuit court is reversed and the cause remanded for further proceedings.
Mr. Justice DowneR dissents.