(dissenting).
I am unable to concur. Plaintiff purchased Battle Pioneer as a herd bull on April 30, 1955. All bulls sold by defendant were unconditionally guaranteed to be breeders. This warranty was not restricted as to time. The-main issue in the case was whether or not Battle Pioneer *356was or-was not a breeder. Although this issue was determined adversely to the seller, plaintiff was not allowed to rescind the- sale on the ground he failed to give notice of the breaph of warranty within a reasonable time after he had knowledge of such breach. . ;•
Where goods have been delivered to the buyer he cannot rescind the sale if “he fails to notify the seller within a reasonablé time of the election to rescind.” SDC 54.0169(3). In my opinion plaintiff fully complied with this provision. As -the warranty was not restricted to any stated' time period plaintiff was entitled to a reasonable time in which to test the breeding qualities of the bull. The normal gestation period of a cow is nine months. The record shows plaintiff began testing the bull as soon as possible in July, 1955. The final test period continued through January, 1956. On February 23, 1956, plaintiff notified defendant of his election to rescind.
The finding of the trial court that plaintiff knew or should have known the bull was not a breeder by the end of September, 1955, unduly restricted defendant’s unlimited warranty. Under the circumstances a buyer of breeding stock should not be required to elect to rescind a sale on mere suspicion the animal is not a breeder. Humbert v. Larson, 99 Iowa 275, 68 N.W. 703.
Soon after the bull was put to pasture with the cows in July, 1955, plaintiff’s son questioned its breeding ability. Plaintiff, however, was not reasonably certain of this defect until late in January, 1956. If, as the court says, plaintiff knew or should have known the bull was not a breeder in September, 1955, it is difficult to understand why he continued testing the bull from November, 1955, to February 1, 1956.
In reviewing the evidence on this point we are necessarily required to view the evidence most favorable to defendant. However, the construction of the evidence should not be more favorable than defendant’s own testimony. On direct examination defendant was asked the following question: “Now, in your opinion, based on your experience, Walter, what is a reasonable time in which a defect or *357potency or nonbreeding qualities can be noticed in a bull?” In response defendant testified in effect it would take six months to determine that question and six months would be a reasonable time in which to determine the same. According to defendant’s own testimony, it would appear a purchaser of breeding stock is entitled to at least six months in which to determine whether or not a bull is a breeder. Plaintiff should not be penalized by a shorter period.
This case is not unlike that of Wilson v. Doolittle, 114 Kan. 582, 220 P. 508, 509, in which the'cburt said: “Defendant was entitled to a reasonable time to test out the matter of sterility before repudiating the contract of sale, and the fact that he may have expressed doubts and objections about the breeding qualities of the animal before repudiating the contract, and continued to use him thereafter, did not preclude a rescission of the contract if the continued use was a necessary test of the qualities of the jack.” Likewise the following rule stated in Yol. 2 of Black on Rescission, § 546, p.1348, is applicable here: “The defense of laches, interposed to defeat the, right to rescind the contract for fraud or other sufficient cause, should not be entertained unless it is made to..appear that it would be inequitable to deny it, and while one seeking to rescind is ordinarily required to act with reasonable promptness, a liberal exténsion of this rule is allowable where the delay has not been willful nor exercised for an unfair purpose. Hence the cases generally agree that delay in taking steps to rescind a contract — even though so long-continued that otherwise it would amount to laches— will not prevent the granting of relief to the rescinding party where it is still possible to restore the other 1 party to his former status, or where that status has not' been changed, and where he has not been misled to his prejudice and will not be in any way injured by the rescission, and where no equities have intervened.”
Plaintiff elected to rescind within a reasonable time after the sale. The delay was not willful nor exercised by the plaintiff for any unfair purpose. The delay was occasioned solely in the process of testing the animal *358for its breeding qualities. Throughout the trial defendant testified the bull was of the kind and quality represented. Accordingly, he would not be harmed by a rescission of the sale.