United States v. Tillotson. as agent of the war department, and Samuel Hawkins, was ever a consummated agreement, binding on the United States, in virtue of an original authority given to him, *or was a preliminary agreement, dependent for its validity upon the ratification of the war department; and if that [*182 was withheld (which there was direct evidence to prove), the agreement was a mere nullity. The bill of exceptions does not in terms find, that the agreement was such a consummated agreement. It merely states, that " on or about the 7th of June 1820, Col. James Gadsden, then acting as the agent for fortifications at Mobile Point, and thereto duly authorized by the said war department, did enter into an agreement or contract with the said Samuel Hawkins, touching the foregoing contract with the said Benjamin W. Hopkins, and the erection of the fort therein provided for," etc. The word "thereto" may be applied either to the next antecedent, the agency of fortifications, or to the subsequent clause, stating the agreement. It may mean, having a due authority, as agent for fortifications, or having a due authority to enter into the agreement. The recital in the agreement itself, that Col. Gadsden entered into it, "in pursuance of the instructions of the secretary of the war department," would not be decisive of the point, supposing it to be entitled to the fullest weight, as matter of recital. But the case does not rest here: in another part of the record, evidence is introduced on the part of the United States, to establish, that the agreement so made had never been ratified on the part of the war department; and also to show, that it was understood by that department, that without such ratification, the contract was not obligatory. We allude to that part of the record, where it is stated, that the agreement, as soon as executed at Mobile Point, was transmitted to the war department, and that a letter was written by the authority of that deparment, under date of the 10th July 1820, to the defendants, as Hawkins's sureties, inclosing a copy of the agreement, and requesting them, if they would sanction it, to send certificates of the fact, and "signify their approval, and authorize it to be carried into effect "-and it is added, "should you object, the contract will be carried on as before," that is, the original contract. It is further found by the case, that the agreement was not ratified by the secretary of war, nor ever acted upon, except so far as it may appear to have been ratified and acted upon by the said transcript" (of the treasury accounts) contained in the record. [*183 It appears to us, that, taking this evidence together, it was not a conceded point, but a matter of controversy between the parties, whether the agreement was obligatory upon the United States, and had become absolute by the assent of all the persons who had authority to perfect the same. This being so, it was a matter of fact, to be decided by the jury, and the charge of the court was erroneous, in withdrawing it from the consideration of the jury. For this reason, it is our opinion, that the judgment of the circuit court was erroneous, and ought to be reversed and the cause be remanded, with directions to award a venire facias de novo. Judgment reversed. 115 THORNTON, Plaintiff in error, v. WYNN, Defendant in error. Promissory notes.-Promise by discharged indorser.- Warranty on sale of horse. An unconditional promise, by the indorser of a bill or note, to pay it, or the acknowledgment of his liability, after knowledge of his discharge from his responsibilty by the laches of the holder, amounts to an implied waiver of due notice of a demand from the drawee, acceptor or maker.1 Upon a sale, with a warranty of soundness, or where, by the special terms of the contract, the vendee is at liberty to return the article ɛold, an offer to return it, is equivalent to an offer accepted by the vendor; and the contract being thereby rescinded, it is a defence to an action for the purchase-money, brought by the vendor, and will entitle the vendee to recover it back, if it has been paid. So, if the sale be absolute, and the vendor afterwards consent, unconditionally, to take back the article, the consequences are the same. But if the sale be absolute, and there be no more subsequent consent to take back the article, the contract remains open, and the vendee must resort to his action upon the warranty, unless it be proved, that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it, within a reasonable time.2 *184] *ERROR to the Circuit Court for the District of Columbia. This cause was argued by C. C. Lee, for the plaintiff in error;(a) and by Worthington, for the defendant in error. (b) January 21st, 1827. WASHINGTON, Justice, delivered the opinion of the court. This was an action brought by the defendant in error against the plaintiff in error, in the circuit court for the district of Columbia, and county of Washington, upon a promissory note given by one Miller to Thornton, and by him indorsed to Wynn. The declaration contains a count upon the note, and also the common counts for money laid out and expended, and for money had and received. At the trial of the cause, upon the general issue, the defendant below took two exceptions to the opinion of the court, which are to the following effect. The first states, that the plaintiff gave in evidence the note and indorsement mentioned in the declaration, and in order to dispense with the proof of the (a) 2 H. Bl. 609; 1 Moore 535; 3 Camp. 57; 11 East 114; 4 Dall. 109; 4 Taunt. 93; 1 Esp. 261; 6 East 110; 1 H. Bl. 17. (b) 1 T. R. 405; 2 Id. 703; 1 Esp. 302; 12 East 171; 4 Cranch 141; 2 Johns. 1; 7 Mass. 449; 5 Id. 170; 11 Johns. 180; Peake's Cas. 203; 1 Taunt. 12 ; 2 T. R. 713; 15 East 275; Cowp. 888; 1 Doug. 24; 1 T. R. 133; 7 East 274; 2 Taunt. 2; 14 Johns. 416; 2 East 320. 1 Sigerson v. Matthews, 20 How. 495; Sherman v. Clark, 3 McLean 91; Morris v. Gardner, 1 Cr. C. C. 213; Perry v. Rhodes, 2 Id. 47; Bank of Columbia v. Marshall, Id. 631; Ross v. Hurd, 71 N. Y. 14. But such promise will not render the indorser liable, unless made with full knowledge of the fact, that he has been discharged. Crain v. Colwell, 8 Johns. 384; Griffin v. Goff, 12 Id. 423; Baer v. Leppert, 5 Hun 453; Richard v. Boller, 6 Daly 460. Whether the promise was made, with such knowledge, is a question of fact, upon the evidence. Moyer's Appeal, 87 Penn. St. 129. And such promise casts upon the indor ser the burden of proving that it was made, without knowledge of his discharge by the plaintiff's laches. Loose v. Loose, 36 Id. 538. 2 Where a horse is sold with warranty, the purchaser has no right to rescind and return the animal to the vendor, on the ground of a breach of warranty, in the absence of fraud; his only remedy is by action for the breach of the warranty. Freyman v. Knecht, 78 Penn. St. 141. If, however, the vendor artfully conceal a known defect, with intent to deceive, this is such a fraud as entitles the purchaser to rescind and recover back the price. Croyle v. Moses, 90 Id. 250, Thornton v. Wynn. ordinary steps of diligence in presenting and demanding the note of the maker, and giving notice to the indorser, the plaintiff offered evidence to prove, that, a few weeks before the institution of this suit, the note in ques tion was presented to the defendant, who, being informed that Miller, the maker, had not paid the note, said, "he knew Miller had not, and that Miller was not to pay it; that it was the concern of the defendant alone, and Miller had nothing to do with it; that the note had been given for part of the purchase-money of a certain race-horse called Ratler, and that the defendant offered to take up the said note if the plaintiff's agent would give time, and receive other notes mentioned in payment ;" to the admission and competency of which evidence the defendant objected; but the court overruled the objection, and *admitted the evidence as competent to support this action, without any further proof of demand upon the maker or notice to the indorser. [*185 That the said evidence being so admitted by the court, the defendant offered evidence to prove, that the said note was given for part of the purchase-money of the said race-horse, then celebrated for his performances on the turf, sold by the plaintiff to the defendant, and the said Miller, the drawer of the note, for $3000, of which $2000 had been paid; that the plaintiff, at the time of so selling this horse, warranted him sound, and declared him capable of beating any horse in the United States, and recommended the purchasers to match him against a celebrated race-horse in New York, called Eclipse; that he also gave a representation of his pedigree, which he described as unexceptionable, and promised to produce his pedigree and send it to the defendant. And the defendant then offered evidence to prove, that the said horse, at the time of the said sale, was utterly unsound, and broken down, and had been broken down, whilst in the plaintiff's possession, and was reputed and proven by persons in the neighborhood of the plaintiff, who afterwards communicated the same to the purchaser; and was wholly unfit for, and incapable of, the action and fatigue necessary to a race-horse; and that the plaintiff had wholly failed to procure and furnish the pedigree of the horse, as he had agreed, and that a pedigree was an essential term in the purchase of the horse, or ordinarily is so, in the purchase of such horses, without which this horse was worth nothing; and that the said Miller, as soon as it had been ascertained by repeated trials that the horse was incurably unsound, offered to return him to the plaintiff, who refused to take him back, although the former offered to lose what he had already paid for the horse, which offer was made after the note fell due. Whereupon, the court instructed the jury, at the prayer of the plaintiff, that if they should be of opinion, from the said evidence, that the said horse was, at the time of the said sale, utterly unsound and broken down, and had been broken down, whilst in the plaintiff's possession, and was wholly unfit for, and incapable to, the action and fatigue necessary to a race-horse, [*186 but that the said facts were not known to the plaintiff, at the time of the said sale, the said facts are not a sufficient defence in this action to prevent the plaintiff from recovering. Upon these instructions of the court, the jury found a verdict for the plaintiff, and the cause now comes before this court upon a writ of error. This bill of exceptions presents two questions for the decision of this The first is, whether the evidence offered by the plaintiff, an court. Thornton v. Wynn. admitted by the court, dispensed with the necessity of proving a demand of payment of the maker of the note, and due notice to Thornton of nonpayment; and, secondly, whether the court below erred or not, in stating to the jury that the alleged breach of the warranty of the horse, if proved to their satisfaction, was not a sufficient defence in this action, to prevent the plaintiff from recovering, unless the facts stated in the bill of exceptions. were known to the plaintiff at the time of the sale. In the argument of the first question, the counsel on both sides considered the evidence offered by the plaintiff as presenting a double aspect. 1st. As authorizing a conclusion, in point of fact, that the note of hand on which the suit is brought, was made and passed to Thornton, without consideration, and merely for his accommodation; and 2d, As amounting to a promise to pay the note, or at least to an admission by Thornton of his liability to pay it, and of the right of the plaintiff to resort to him, whether it was made solely for his accommodation, or was given for value in the ordinary course of trade. As to the first, the counsel treated the note throughout as an accommodation note, and submitted to the decision of this court the question, whether the indorser of such a note was entitled to call for proof of a demand of payment of the maker, and notice to himself? Whether this question was ever raised in the court below, or in what manner it was there treated, does not appear from the bill of exceptions. It is possible, that that court may have intended nothing more by their direction to the jury, than to sanction the admissibility of the evidence, and its sufficiency to authorize a verdict. for the plaintiff, *without other proof of demand and notice, provided *187] the jury should be of opinion, that it warranted the conclusion that the note was given without consideration. But such is not the language of the court, as stated in the bill of exceptions. The jury were informed, that the evidence was competent to support the action, without such further proof of demand and notice, without leaving the inference of fact that the note was given without consideration to be drawn by the jury. Had the court distinctly stated to the jury, that this was such a note, and therefore, that further proof of demand and notice was unnecessary, the incorrectness of the direction could have been doubted by no person, since the court would, in that case, have inferred a fact from the evidence, which it was competent to the jury alone to do. And yet it seems difficult to distinguish the supposed case, from the one really presented by the bill of exceptions, upon the hypothesis, that the court below decided anything as to the particular character of this note, since it is very obvious, that no question of fact was submitted to the consideration of the jury. It is, therefore, due from this court to the one whose decision we are revising, to conclude, that that decision did not proceed upon the assumption that this was a note drawn for the accommodation of the indorser. It remains to be considered, whether the direction was correct upon the other aspect of the evidence. It is now well settled, as a principle of the law-merchant, that an unconditional promise by the drawer or indorser of a bill, to pay it, after full knowledge of all the circumstances necessary to apprise him of his discharge from his responsibility, by the laches of the holder, amounts to an implied waiver of due notice of a demand of the drawer or acceptor, and dispenses with the necessity of proving it. Such Thornton v. Wynn. are the cases of Borradaile v. Lowe, 4 Taunt. 93; Donaldson v. Means, 4 Dall. 109; and others which need not be cited. So if, with the knowledge of these circumstances, he answer, that the bill "must be paid," "that when he comes to town, he would set the matter right,' ""that his affairs were then deranged, but that he would be glad to pay it, as soon as his accounts with his agents was settled," or "that he would see it paid," or if he pay a part of the bill; in all *these cases, it has been decided, that [*188 proof of regular notice is dispensed with. 2 T. R. 713; Bull. N. P. 276; 2 Camp. 188; 6 East 16; 2 Str. 1246. The principle upon which these decisions proceed is explained in many of the above cases, and particularly in that of Rogers v. Stevens, 2 T. R. 713. It is this, that these declarations and acts amount to an admission of the party, that the holder has a right to resort to him on the bill, and that he had received no damage for want of notice. See also Stark. on Evid. 272. The same principle applies with equal force to promissory notes, which, after indorsement, partake of the character of bills of exchange, the indorser being likened to the drawer, and the maker to the acceptor of a bill. The case of Leffingwell and Pearpoint v. White, 1 Johns. Cas. 99, is that of a promissory note, where the indorser, before it became due, stated, that the maker had absconded, and that, being secured, he would give a new note, and requested time. The court say, that the defendant had admitted his responsibility, treated the note as his own, and negotiated for further time. for payment, by which conduct he had waived the necessity of demand of the maker, and notice to himself. Taylor v. Jones, 2 Camp. 105; Vaughan v. Fuller, 2 Str. 1246; and Anson v. Bailey, Bull. N. P. 276, were all cases of actions on promissory notes against the indorser. In this case, the defendant below, upon being informed that Miller, the maker of the note, had not paid it, observed, that he knew he had not, and that he was not to pay it; that it was the concern of the defendant alone, and that Miller had nothing to do with it, it having been given for part of the purchase-money of a horse. These declarations amounted to an unequivocal admission of the original liability of the defendant to pay the note, and nothing more. It does not necessarily admit the right of the holder to resort to him on the note, and that he had received no damage from the want of notice, unless the jury, to whom the conclusion of the fact from the evidence ought to have been submitted, were satisfied, that the defendant was also apprised of the laches of the holder, in not making a regular demand of payment of the note, by which he was discharged from his responsibility to pay it. The knowledge of this fact formed an indispensable part of the plaintiff's [*189 case, since, without it, it cannot fairly be inferred, that the defendant intended to admit the right of the plaintiff to resort to him, if, in point of fact, he had been guilty of such laches as would discharge him in point. of law. For anything that appeared to the court below, from the evidence stated in the bill of exceptions, the admissions of the defendant may have been made, upon the presumption that the holder had done all that the law required of him, in order to charge the indorser. That due notice was not given to the defendant, he could not fail to know; but that a regular demand had been made of the maker of the note, could not be inferred by the court from the admissions of the defendant. For the reasons above |