It is claimed the plaintiff cannot maintain this suit; that by the attempt to enforce, under the warehouse receipt, his right to the winter whb.it, he elected to ratify the transaction with Hoag & Co., and thereby affirmed the title to the spring wheat in Reynolds, the defendant. The general doctrine of estoppel by election of remedies is agreed to, as claimed; but this case does not fall within the rule. At the time plaintiff presented his certificate of special deposit, and demanded his spring wheat, April 20, 1874, Hoag & Co. had wrongfully parted with it. His legal remedies then were either to sue for the value, or to follow his wheat. He did neither. But Hoag & Co. agreed to allow him $1.10 per bushel, and paid $300 in casn, and “turned out” for the balance a bin of winter wheat in their warehouse, affirming that belonged to them. In this transaction, the title to the winter wheat was warranted *920when Hoag & Co. gave the warehouse receipt. Subsequently, when informed they were not the owners, plaintiff commenced suit to settle the question. In his effort to obtain possession he failed, and the defendant in this suit was declared to be the owner. This result determined that Hoag & Co. had not fulfilled the conditions of the sale, and had not satisfied the demand of the plaintiff. The sale was not to be concluded until the winter wheat came into his actual possession. If a conditional sale and delivery of chattels is made, and the vendee fails to perform, the vendor can recover his property, or its value; and if the sale and delivery is induced by fraud, the property or its value can be recovered from the vendee, notwithstanding its manual tradition, or from any person claiming title through him. The failure of ownership in Hoag & Co., determined by the result of the replevin suit, remitted plaintiff to all the remedies he possessed when he demanded his special deposit, and this defendant, being equally guilty of a conversion, is liable. It makeB no difference, as I can perceive, that legal proceedings were taken to settle the title to the winter wheat. The demand of the plaintiff was not satisfied, as that suit determined, and the title to the spring wheat did not pass from the plaintiff by this transaction with Hoag & Co. It is urged that the acceptance of $300 in part payment, and failure to return it, is inconsistent with the effort to i eco ver in this action. Ordinarily, the party who rescinds a contract should return all he has received upon it. This Is only necessary to place himself in his original position. But here, it is manifest, Hoag & Co. could not restore the spring wheat, and plaintiff was not obliged to tender or return the $300. The plaintiff should be indemnified to the extent of his loss only, and, as Hoag & Co. were the agents of Reynolds, it was proper that judgment should be reduced pro tanto. I find no error upon a full review of the case. New trial denied.