¶1delivered the opinion of the court.
¶2This suit was for a breach of warranty of soundness in the sale of a slave, and upon the trial the court instructed the jury that the plaintiff could not recover, because there had been no offer to return the slave.
¶3Where there was a breach of an express warranty, or a fraudulent and false representation, the liability of the vendor is not defeated by a failure on the part of the vendee to return or offer to return the property. This circumstance may affect the measure of damages, but is no bar to the action. (Fielder v. Starkie, 1 H. Black. 19.) The case of Stearns v. McCullough, 18 Mo. 414, decided by this court, recognizes this rule.
¶4The judgment will be reversed and the case remanded; Judge Ewing concurs. Judge Scott absent.