cnnunmza v. THOMPSON. 47
_ The counsel for the plaintiffs insisted that the defendants could have
no remedy in this action, by way of counter-claim, for damages sus-
tained; but on the trialthe warranty was regarded by the court and the
-counsel for the defendants as an ordinary express warranty for the quality
of goods sold. When there is a breach of such a warranty, the buyer
may bring his action at once, after receiving without returning the goods,
and their actual value only will be estimated in assessing damages; or
he may avail himself of a counter-claim by way of recoupment, in an
action brought against him by the vendor for the price. _ v
If the purchaser, in a reasonable time after discovering a breach of
warranty, returns the goods, the sale will be annulled, and he may suc-
cessfully defend himself in an action by the seller for the price. In no
_ case can the purchaser keep the goods, if they have any value, and have
the contract rescinded, as rescission requires the entire contract to be
avoided, and the parties placed in stem quo. Lyon v. Bertram, 20 How.
149; Smeltzer v. White, 92 U. S. 395; Hurst v. Everett, 91 N. C. 399.
Since I have had an opportunity of more carefully considering the
terms of the contract between the plaintiffs and defendants, in relation to
the machinery, I am strongly inclined to the opinion that the defendants
were not entitled to their defense by way of counter-claim in this action.
The warrantyconstitutes a part of the contract, and the terms are so exy
pressed as to contain mutual and dependent covenants, and provide the
remedy to besought by the defendants, should the machinery be de-
fective, and fail to do good work, with careful and skillful management.
As the remedyywas expressly agreed upon by the parties, and as it
secured the defendant against all fraud and injury, and its requirements
were not unjust or unreasonable, in construing the contract with Qrefer-
ence to the subjecvmatter, and in the light of surrounding circumstances,
we mayvwell presume that it was the intention of the parties that the
means of relief provided -for were to be the primary remedy, and the de-
fendants were to have noother remedy, unless they first performed the
duties and obligations which they had assumed in their written covenant.
The evidence on the trial tended to show that the defendants had not
complied with their express covenant, and that the plaintiffs had fur-
‘ rushed the machinery in good order, and were able, ready, and willing
to perform all the obligations of their warranty. As the questions of law
arising upon my present construction of the contract were not zfully
argued before me, I will not express a decided opinion, upon the subject,
— but I am inclined to think that, even if therewere defects in the capacity
and construction of the machinery, the defendants were not entitled to
their counter-claim defense and remedy, as the liability of the plaintiffs
cannot be extended beyond the express provisions of their covenant of
warranty, which were accepted by the defendants under their hands and
seals. It certainly would be no wrong or hardship on the iclefenrlants to
require them to do what they expressly covenanted to do, before they
could have a remedy at law against the plaintiffs, who have not {had the
opportunity of performing their obligations in the manner agreedjupon
tby both parties in their joint instrument of contract. There is a well·