Opinion by

The original answer and amendments admit the delivery of the fasteners to appellant, and their use by him. There is no controversy as to the contract of sale; but it is maintained that there was a fraud practised by appellee in selling these fasteners, when the right to manufacture and sell was in one Putman, by reason of a patent giving to him the exclusive right to manufacture the article. If the fraud was perpetrated as alleged, and constitutes a defense for the appellant, before he can avail himself of it he must offer to return what he has purchased, and not retain it, or pay some one else for it. Putman had his remedy against the appellee for an infringement upon his patent right, and had already, as the record shows, recovered a large sum against the firm of which appellee was a member, or in such way connected; and the value of the articles sold may be embraced in that judgment, or, if sold afterwards, the appellants should have returned, or offered to do so, the articles he obtained from appellee. If it belonged to Putman, appellant should have made him a party to the action in order that the right of property might be determined.

The judgment is affirmed.