¶1The action is to recover $135 paid to the defendants under the following circumstances:
¶2About July 28, 1896, the plaintiff purchased a gray horse from the defendants, who keep a sales stable. The price was $150, on which the plaintiff paid $60, and gave his note at two months for the balance, $90'; at the same time executing an agreement that the title to the horse should remain in the defendants until it was fully paid for. It was agreed at the time of the purchase that if the horse did not suit the plaintiff he might.send it back and get another, as the defendants had plenty of horses on hand, and that the plaintiff might keep on sending back until he obtained a horse that would suit him:
¶3The gray horse was sent to the plaintiff’s stable, and on the night of its arrival kicked down the stall and the stable door. The plaintiff sent it back, and got a brown horse instead at the same- price. When this brown horse was hitched up next morning in the plaintiff’s stable it kicked in the front of the wagon. This horse was also returned, and a third horse taken in its place at $165, the defendant giving another note for the extra $15. The third horse was examined by Dr. Doyle, a veterinary surgeon, and on his recommendation was likewise returned. Whereupon the plaintiff got a fourth horse at $200, giving a note for $35 more. According to the evidence the fourth horse proved “ tender forward; ” and it was on that account returned. In each instance the return was made promptly.
¶4The plaintiff, concluding that he had experimented enough on his own judgment, sent Dr. Doyle to the defendants’ stable to pick out a horse for him. Doyle went to the stable and said he desired a horse for a poor man who wanted it as cheap as pos- *538' sible, and that he expected his tiian there shortly. ■ Doyle examined the defendants’ horses' and picked out óne, and the defendants fixed the price at $135. When the plaintiff came Doyle said to the defendants, “ This is my man.” The horse- was hitched up to one of the defendants’ wagons, tried and fonnd to be satisfactory. The plaintiff paid the defendants $75 in cash, which, with the $.60 in cash previously' paid, made the full purchase price, $135. He thereupon asked, for the horse, but the defendants said, he could not have it until'he paid $60 more, as the $60 previously paid did not count on that transaction. The plaintiff demanded the return lof the $75 paid and' the notes which he had given, but the defendants refused to give up the money, the horse or the notes, and afterwards explained to the witness Tierney that the reason .was that the plaintiff had fooled them by sending a veterinary surgeon around to pick out a horse; that they had the money, and they were going to keep it.
¶5It appears by the evidence that the defendants sold- the first four horses at better prices iban those agreed to be paid, by the plaintiff.
¶6The defendants’ theory seems to be that the first foiir transac-tions represented so many independent sales, and that the balance .on each of them was due. This is a mistake. According to the plaintiff’s evidence (which the justice believed to be true, and which We accept as settling the facts) the defendants were obliged to keep on furnishing horses to the plaintiff until he was satisfied; that,was their contract, the only control reserved by the defendants being as to the price on the exchange. In fact each transaction was a substitution of one-horse for another, leaving the contract in full force.
¶7Even if this were not so, the acts of the parties evidence a rescission as to the first four horses, leaving the plaintiff in a position to demand the return of the $60 paid and the three notes given. Collins v. Brooks, 20 How. Pr. 327; Sturtevan v. Orser, 24 N. Y. 538; Grouse v. Wolf, 4 Misc. Rep. 535; 54 N. Y. St. Repr. 132; S. C., 34 N. Y. Supp. 703; Fulton v. Met. Life Ins. Co., 4 Misc. Rep. 76; 53 N. Y. St. Repr. 172; Coon v. Reed, 1 Hilt. 511.
¶8When Dr. Doyle selected the $135 horse, and the defendants closed the sale to the plaintiff by accepting the $75 which he paid on the substitution of horses, the plaintiff by force of the contract was entitled to have the $60 previously paid applied *539on account of the purchase, and also to a return of the three notes. The defendants’ refusal to deliver the $135 horse gave the plaintiff, under the circumstances, a clear right to a return of the $135, and this in effect is what the justice decided. Vide, supra.
¶9The judgment was right, and must be affirmed. •
¶10Daly, P. J., and Bischoff, J., concur.
¶11Judgment affirmed.
¶12e