It will not be necessary to discuss all the questions raised in this case.
The main question is, whether, under the circumstances which the evidence tended to show, the plaintiff, without rescinding the contract and placing, or offering to place, *22the defendant in statu quo, was entitled to recover under the common indebitatus count, for goods sold and delivered, the value of the horse and colt, less the ten dollars he had received.
The horse received by the plaintiff in exchange being at the time in defendant’s possession, there can be no doubt that a warranty of title on the part of the defendant was implied in the contract of exchange, as it would have been upon a sale; and the plaintiff might have sued upon that contract, of which the implied warranty was just as much a part as if it had been express; and in thus declaring he would be affirming and not rescinding the contract, and would not therefore be bound first to tender back the money he had received upon it, nor to demand the property he let the defendant have, nor to do any other act in disaffirmance of the contract. But to sustain such an action, it must be based upon the contract of exchange itself, of which the implied warranty is a part; as it is this only which creates the obligation, and no other or different contract ean be implied while that is in force and the rights of the parties dependent upon it.
It is also, I think, clear enough that the existence of the chattel mortgage as an encumbrance upon the property, and the taking of the property from the possession of the plaintiff under it, — if the assignment was valid, — which we need not here discuss, — would, though the contract of exchange had been executed, have authorized the plaintiff to have rescinded the contract; and by returning, or offering to return,'the money he had received, he would, according to the authorities in Massachusetts, Maryland, and Maine, and perhaps some other states (Story on Sales, last ed., Sec. 421 and cases cited), have had the right to sue, either upon the contract of exchange, or for goods sold and delivered; though according to the general current of authority in other states, he must sue and declare specially upon the warranty, when the contract has been executed so as *23to pass the property. — Story on Sales, ubi supra, and cases cited.
But whenever the action can be maintained .upon the common counts for goods sold and delivered, or to recover back the consideration on the ground that there has been a breach of warranty, it is upon the ground that the contract of sale or exchange being rescinded, there is then no express contract existing, and the law will imply one to pay the price, or what the goods are worth, according to the equities of the case arising upon the condition in which the parties are left upon such rescission. But while the original contract is in force, none can be implied.
And as to recovering back the consideration, or the value of the horse and colt, it must be remembered that here was not a total failure of consideration, even admitting the failure of title of the horse received by the plaintiff to have been total and complete, for he still had the ten dollars, and there was no defect of title to that. The defendant has not therefore failed, or refused in toto to perform every part of his contract, so as to authorize the plaintiff to treat it as rescinded, while he keeps part of the consideration.
So far as this was in the nature of a sale for cash, the defendant has performed his contract by payment. The duty which remained for the defendant to do, was not, under the contract, the payment of an agreed sum of money, but to keep the plaintiff indemnified against a failure or defect of title; and this is the real nature of the plaintiff’s right of action, viz.: to recover damages for the breach of that portion of the defendant’s contract.
But there is, as it seems to me, another reason why the judgment should be reversed. The contract was executed when made; the property in the horse vested in the plaintiff, subject, as was afterwards discovered, to a chattel mortgage upon this and other property for two hundred dollars. Admitting the due execution of a valid assignment of it to Long, and his seizure of the horse to be rightful, there is *24no evidence that this horse, or the other mortgaged property taken by Long, was ever sold, nor any evidence of the value of the other property taken under the mortgage; there is nothing, therefore, which shows the real amount of the actual incumbrance upon the horse, for the plaintiff had. a right to redeem before Long took possession, and even within any reasonable time afterwards. — Flanders v. Chamberlain, 24 Mich., 305; Lucking v. Wesson, 25 Mich., 443. For aught that appears, the other property had been, or might be, sold for enough to pay the whole mortgage debt; and it is fairly to be inferred that it would pay a considerable part of it. True, the plaintiff might, as I have stated, have rescinded the contract on this ground. But he did not rescind. In no form of action, therefore, would the value of the horse and colt traded to defendant constitute the measure of damages, without showing that the real and actual incumbrance upon the horse was equal to or exceeded the value of the horse and colt received by the defendant. In other words, without showing the value or disposition of the other mortgaged property, or some ground of actual necessity for throwing the whole mortgage debt upon thejhorse the plaintiff had received, or a portion of it equal to the value of the horse and colt received by defendant.
The court therefore erred in charging that the value of horse and colt would be the measure of damages.
The judgment must be reversed, with costs, and a new trial awarded.
The other Justices concurred.