afterward drew up the opinion of the Court. The instruction, that there was no implied warranty, is not now complained of, and is undoubtedly correct. See Emerson v. Brigham, 10 Mass. R. 197 ; Shepherd v. Temple, 3 N. Hamp. R. 455. Every sale of chattels contains an implied warranty, that the property of them is in the vendor. But it is well settled by authority as a general rule, that no warranty of the quality, is implied from the sale. The maxim-, caveat emptor, governs. 2 Kent’s Com. 478 ; Chitty on Contr. 133 ; Champion v. Short, 1 Campb. 53 ; Bragg v. Cole, 6 Moore, 114; Stuart v. Wilkins, 1 Doug. 20 ; Parkinson v. Lee, 2 East, 314 ; Mockbee v. Gardner, 2 Har. & Gill, 176.

But the learned justice of the Common Pleas further instructed the jury, that if there was a fraud in the sale, or an express warranty and a breach of it, in either case, the defendant might avoid the contract, by returning the ox within a reasonable time ; or, if the ox would have been of no value to the plaintiff, then without returning him. Whether the jury found their verdict upon the ground, that no fraud or express warranty was proved, or that the ox was of no value, does not appear. If therefore any part of the instructions was incorrect, the defendant is entitled to a new trial.

Where the purchaser is induced by the fraudulent misrepre*286sentations of the seller, to make the purchase, he may, within a reasonable time, by restoring the seller to the situation he was in before the sale, rescind the contract, and recover back the consideration paid, or, if he has given a note, resist the payment of it. Here was no return of the property purchased ; but if that property Was of no value, whether there was any fraud or not, the' note would be nudum pactum. The defendant’s counsel, not controverting the general rule, objects to the qualification of it. He says, that the ox, though valueless to the defendant, might be of value to the plaintiff, and so the defendant would be bound by his contract, although he acquired nothing by it. But a damage to the promisee is as good a consideration as a benefit to the promisor. If a chattel be of no value to any one, it cannot be the basis of a bargain ; but if it be of any value to either party, it may be a good consideration for a promise. If it is beneficial to the purchaser, he certainly ought to pay for it. If it be a loss to the seller, he is entitled to remuneration for his loss.

But it is apparent, that a want of consideration was not the principal ground of defence. The defendant mainly relied upon fraud or a warranty. And to render either available to avoid the note, it was indispensable, that the property should be returned. He cannot rescind the contract, and yet retain any portion of the consideration. The only exception is,' where the property is entirely worthless to both parties. In such case the return would be a useless ceremony, which the law never requires. The purchaser cannot derive any benefit from the purchase and yet rescind the contract. It must be nullified in toto, or not at all. It cannot be enforced in part and rescinded in part. And, if the property would be of any benefit to the seller, he is equally bound to return it. He who would rescind a contract, must put the other party in as good a situation as he was before ; otherwise he cannot do it. Chitty on Contr. 276 ; Hunt v. Silk, 5 East, 449 ; Conner v. Henderson, 15 Mass. R. 314.

The facts relied upon by the defendant to defeat the note, might, if proved, be used in mitigation of damages. If there was a partial failure of consideration, or deception in the quality and value of it, or a breach of warranty, the defendant *287may avail himself of it to reduce the damages to the worth of the chattels sold, and need not resort to an action for deceit, dr upon the warranty. Chitty on Contr. 140 ; Germaine v. Burton, 3 Stark. R. 32 ; Barton v. Butler, 7 East, 480; Poulton v. Lattimore, 9 Barn. & Cressw. 259 ; Bayley on Bills, (2d Amer. ed.) 531, and cases cited. But he is not bound to do this. He may prefer to bring a separate action, and he has an election to do so. The present judgment will not bar such an action. But however this may be, it does not appear, that any instructions were given or refused upon this point. The value of the property to the defendant would have been the true rule of damages. And had he desired it, doubtless, such instructions would have been given. But as he did not request them, he cannot complain of their omission.

Judgment of the Court of Common Pleas affirmed.