This is an appeal by the defendant from a judgment entered upon a verdict of a jury in favor of the plaintiff.- The action was instituted by the plaintiff -to recover from the defendant the sum of $280, which he had paid to the defendant upon the purchase of a team-of horses, and which the plaintiff claim-s was rescinded by consent. ■ The answer was a general denial. At the conclusion of-plaintiff’s evidence the defendant moved the court to direct a verdict in his favor, which motion was denied, and, the motion not being renewed at the conclusion of ail the evidence, the same must be deemed waived. Haggarty v. Strong, 10 S. D. 585, 74 N. W. 1037; Brace et al. v. Van Eps, 12 S. D. 191, 80 N. W. 197; Seim v. Krause, 13 S. D. 530, 83 N. W. 583; Torrey v. Peck, 13 S. D. 538, 83 N. W. 585.
■ It is contended, by the defendant that- the verdict of the jury, finding as it did, in. effect, that there was a rescission of the contract by mutual -consent, was not supported by the evidence. It is disclosed by the evidence that" the plairlt-iff purchased of the de*141fendant a team of hprses for, the ,suni of $2$o, .which ,was paid; that a fe wdays after the- purchase of the horses the plaintiff, discovered that one of the horses, was not sound, and thereupon returned them to the defendant’s farm and left them with the son of the defendant, .informing him as to. the reasons for returning the same; that the horses were retained by the defendant, and no notice given by him. to the-plaintiff that he-did pot accept them. The court in its charge to the jury instructed them as follows: “Was this transaction between the plaintiff and defendant rescinded by consent of the parties What constitutes a rescission by consent? It is simply a returning to the party the property which was bought,' and, if the other party accepts and retains it, that would be- sufficient evidénce from which the jury might imply an assent to a rescission of the contract. * * * But there could be no question. * * * that if the -party receives- back the property, and kept it without any objection at'all, without notifying the'other party that he would not accept it back by way of rescission, provided he knew'when it was returned to him that that was what the party was attempting to do, to rescind the contract, if he kept it; knowing that fact, it would amount to a rescission.” No exception was taken to this instruction of the -court; hence for the purpose of this decision this must be regarded as the law of the case. Brown v. McCaul, 6 S. D. 16, 60 N. W. 151. But independently of this rule, however, we are of the opinion the instruction was correct, and that the defendant by his failure to notify the plaintiff that he did not accept, the horses, and. by retaining, them, did in effect consent to the rescission of the contract. . ■
It is not essential that the defendant- in express terms consent to the rescission of the contract, but such consent may be implied from his acts or conduct, and where, as in the case at bar, th.e defendant .receives back the .property, sold and-retains, tlie .same without objection or notice to-the other, party .that he.-refused to accept the same, his ■ -consent will be presumed, and the law. raises an implied agreement on the part of the seller to refund the consideration paid,for the- property. The learned, author on th,e subject of Sales (24 Am. & Eng. 'Enc. of Law, .1097.); says :■ “Consent to ’-escission may -be either express or implied from- the- language and *142conduct of the parties” — and in -support of which a- large number of authorities are cited. ' We are' of the opinion that the jury in this case was fully justified in finding from the evidence that-there was such'a consent on the part of the defendant, and,'the contract being so rescinded by his consent, he became - liable to the plaintiff for the amount he had received in payment for the horses.
The judgment of the circuit court-and order denying a new trial are affirmed.