232; Montgomery Co. v American Emigrant Co. 47 la. 91; Armstrong. etc. Co. v. Kosure, 66 Ind. 545. A buyer must return the thing sold, unless it is entirely worthless. Babcock v. Case, 61 Penn. St. 427; Dill v. O'Rerrell, 45 lnd. 268. See Brewster v Burnett, 125 Mass. 68. One advancing money on a sale may rescind and recover the money if the seller fails to comply. Howe Machine Co. v. Willie, 85 Ill. 333. See Green v. Stuart, 7 Baxter, 418. Where a contract is entire, and the buyer is not willing to accept partial performance, he may reject and recover the price paid. Whincup v Hughes, L. R. 6 C. P. 78; Jenness v. Wendell, 51 N. H. 63; Smith v. Lewis, 40 Ind. 98. But if he accepts, he must seek some other remedy. Mansfield v. Trigg, 113 Mass. 350; Young, etc Co. v. Wakefield, 121 Mass. 91. See Beetem v. Burkholder, 69 Penn. St 249.

If the thing to be done on the one side as the consideration of the agreement on the other side, is to be done at several * times, a failure at one time will not generally authorize the other party to treat the whole contract as rescinded; although, even in such continuing cases, this partial failure may be so destructive of the contract as to give the other party the right to consider it as wholly rescinded.(c) 2

It is a general rule, that a party having a right of rescission because of the fault or act of the other, should make known his rescission, as soon as may be after he knows his right to rescind.(cc) rescind a contract on the ground of fraud, for the purpose of recovering what he has advanced upon it, must restore the other party to the condition in which he stood before the contract was made; yet. where the party who practised the fraud has entangled and complicated the subject of the contract in such a manner as to render it impossible that he should be restored to his former condition, the party injured, upon restoring, or offering to restore, what he has received, and doing whatever is in his power to undo what has been done in the execution of the contract, may rescind it and recover what he has advanced. See further upon this point, per Tindal, C. J., in Fitt v. Cassanet, 4 Man. & G. 908; Blackburn v. 8mith, 2 Exch. 783; Junkins v. Simpson, 14 Me. 364; Coolidge v. Brigham, 1 Met. 647; Peters v. Gooch. 4 Blackf. 616; Turnpike Co. v. Commonwealth, 2 Watts, 483; Brown v. Witter, 10 Ohio, 142; Johnson v. Jackson, 27 Miss. 496; Allen v.

Edgerton, 8 Vt. 442; Luey v. Bundy, 9 N. H. 296; Stevens v. Cushing, 1 N. H. 17; Perley v. Balch, 22 Pick. 288; Downer v. Smith, 32 Vt 1; Lewis v. White, 16 Ohio, 444.

(aa) McCrilila v. Carlton, 37 Vt. 139.

(b) And if one party has derived all the intended benefit from a contract, the agreement to rescind the contract will not bar the plaintiff from some remedy. Thus, to an action for goods sold and delivered, it is no defence that the goods were sold in pursuance of a special con tract which was afterwards rescinded and annulled by both parties. Edwards v. Chapman, 1 M. 4 W. 281, Parke, B., saying: "A duty arises from the contract of sale, which cannot be got rid of without an accord and satisfaction."

(66) Coffee v. Ruffin, 4 Cold. 487.

(c) See supra, n. (z). And see Battle v. Rochester City Bank, 3 Comst 88.

(cc) Central Bank v. Pindar, 46 Barb. 467.

1Burge v Cedar Rapids, etc, R. Co. 82 la. 101.

2 A. contracted to make successive deliveries of goods of a certain width, weight, and quality to B., and the two first deliveries were deficient in width and weight, and it appeared that A. must procure new machinery to fulfil the conditions, which would involve delay, and B. rescinded the contract It was held, that he was justified in so doing. King Phillip Mills v. Slater, 12 R. I. 82, where cases of independent agreements in contracts were examined and criticised.

Replevin may be maintained for goods sold under false and fraudulent representations, the contract of sale being rescinded. (cd)

A defendant, who is a wrong-doer, cannot set up the right of a third person to bar the claim of the plaintiff. (d)

Redhibition is a term borrowed from the civil law, and sometimes used by our courts. In a case in Louisiana, it is said to be the avoidance of a sale on account of some vice or defect of the thing sold, rendering it either useless, or so far diminishing its value to the purchaser, that it must be supposed he would not have bought the thing with knowledge of the defect. (dd)