Erie City Iron Works v. Barber. reason thereof, will not be allowed to say he made it honestly, believing it to be true. There is reason for his liability without holding him guilty of moral turpitude. * The plaintiffs contend their case falls within exceptions to the general rule, one of which is that an action for deceit will lie against a manufacturer or seller of goods for a particular purpose, if unfit for that purpose, although he had no fraudulent intent. Jones v. Bright, 5 Bing. 533. It was there held that if a manufacturer sells goods for a particular purpose, "the law implies a warranty that it was fit and proper for that purpose." "If a party sells an article for a particular purpose, he thereby warrants it to be fit for such purpose." This and most other cases following in its wake are well collated by Mr. Biddle on Warranties in the Sales of Chattels, §§ 167-183, and the doctrine stated thus: "When a manufacturer or dealer contracts to supply an article, which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is an implied warranty that it shall be fit for the purpose to which it is to be applied, since here the buyer does not purchase upon his own judgment, but relies upon that of the seller." Without inquiry as to the limitations of this doctrine in Pennsylvania, it is plain that the seller's liability is upon his warranty. An implied warranty is neither more nor less than a contract, and the remedies for its breach are the same as for breach of an express warranty. That there may be recovery in an action in the nature of deceit does not change the character of the foundation of the right to recover. Formerly it was common to sue in this form - where the claims were on contracts of warranty, and such remedy is not obsolete in this State. The plaintiff may choose either case or assumpsit. "No matter which form of declaration be chosen the plaintiff may recover on an express warranty without either alleging or proving the knowledge of the defendant that it was false. A scienter need only be shown when the action is for deceit." Vanleer v. Earle, 26 Penn. St. 277. Therefore the fact of recovery on a contract of warranty in an action of deceit does not justify an inference that when recovery is sought on the ground of deceit the scienter need not be shown. The case of Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486, is where the vendor of a block of land, by his agent, pointed out cer Erie City Iron Works v. Barber. tain fences, and stated that the block included all the land between said fences; the representation was false, but believed to be true by the agent when he made it. It was held that the purchaser was entitled to the benefit of his contract, and could recover the difference between the value of the property actually sold and the value of the property as represented. Nothing in the facts and judgment in that case tends to show that the vendor was guilty of deceit, or was liable on that ground, though some remarks of the judge may have that tendency. The true ground for recovery in such cases was tersely stated by Chief Justice MARSHALL: "He who sells property on a description given by himself is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance." McFerran v. Taylor, 3 Cranch, 270. In Randall v. Newson, 2 Q. B. D. 102; s. c., 19 Moak's Eng. Rep. 243, one of the cases cited by the plaintiffs to support the action of deceit, it was held that the warranty extends to latent defects unknown to and undiscoverable by the vendor, which render the article sold unfit for the purpose intended. There is no gainsaying the correctness of that ruling where there is such a warranty, express or implied. If unfit, by the terms of the contract, the seller is liable for its breach. But that case does not establish the rule that a vendor is guilty of deceit and liable in damages for a tort, where he makes and sells an article in good faith, representing that it is good and fit for a specified purpose, which contained a latent defect that was unknown and undiscoverable until tried by use. Nor is such principle supported by any other case of which we are advised. We are of opinion that the jury should have been instructed that if the representation by Mr. Selden respecting the boiler was made in good faith, and that he had adequate reason to believe it was true, there could be no recovery for the alleged deceit. The evidence bearing on the question whether the defendant and its agents knew that the boiler, by reason of bad workmanship or bad iron, was defective and unfit for the purpose intended, or whether there was adequate reason to believe that both the material and workmanship was good, is conflicting, and therefore was for the jury to consider and find the facts therefrom. Deceit should not be confounded with warranty, express or implied; nor with mistake which is often Ivins' Appeal. ground for relief of a party who suffers by it against him who made it; nor with legal fraud imputed to a party who has committed no moral fraud. A number of the defendant's points were rightly refused, but that they could not be affirmed was no reason for including in the answers instruction that if the boiler was represented to be good, and was bad, the defendant was liable. "The law raises no presumption of knowledge from the mere fact that the representation is false." There is some difference between a judgment for a tort and one on contract. When it comes to execution the defendant has rights in one case that he could not have in the other. The gist of the action should not be lost in its form. If the plaintiffs have chosen to rest their case solely on an alleged fraud in fact, involving moral turpitude, they should be held to its proof as firmly as if it did not appear that there was an express or implied warranty. Judgment reversed, and venire facias de novo awarded. The husband is not the "heir or next of kin " of the wife, within the ordinary A meaning of a will.* PPEAL from probate court. The opinion states the point. Wm. G. Foulke and Crawford & Dallas, for appellant. George Junkin, for appellees. GREEN, J. We are of opinion that the learned court below has pronounced the true construction of the testator's will, in the final decree. The subject of the testamentary provision was an aggregate of personal and real estate. The objects of the testator's bounty were his heirs and next of kin. By the will he had given all the *To same effect, Wilkins v. Ordway (59 N. H. 378), 47 Am. Rep. 215. See Dodge's Appeal, post, 519. Ivins' Appeal. residue of his estate to his three daughters absolutely and in fee simple. By the codicil he made a radical change, and gave the residue to a trustee, in trust to keep the real estate in repair and rented, and the personal estate securely invested, and to pay the net income of the whole to the daughters, and to hold the principal in one third parts in trust for the uses and purposes declared by the last wills of his daughters respectively, and in default of wills, for the use of child or children of the daughter; "in default of such will, and child and children or issue of such, then the principal to go to the heirs and next of kin of the daughters so dying, as provided by the intestate law of Pennsylvania." In this provision there are apt words which define with technical precision each of two classes of beneficiaries, to-wit, heirs and next of kin. It has been so often held that when technical words are used in a will or other instrument they must have their technical meaning, unless a contrary intent appear, that it would be a mere affectation of learning to cite the authorities. On the question of intent, in this case, the will and codicil abound with evidence that the intention of the testator corresponded precisely with the strict legal meaning of the words used. The distinction between real and personal estate is constantly preserved, both in the words which refer to them descriptively and in those which relate to their disposition. Thus the residue being composed of personalty and realty, he gives and devises it, absolutely and in fee-simple. He gives the personalty absolutely, and he devises the realty in fee-simple. This is the fifth clause of the will, and by the same species of concentrated and elliptical expression, he directs in the third clause of the codicil the same residue, given and devised to his daughters, to be "given to, and be vested in," the trustee absolutely and in fee-simple, in trust to repair and rent the real estate and securely invest the personal estate, for the use of his daughters. Then when he provides for the contingency which has happened, to-wit, the death of a daughter without a will, children or issue, he directs that the principal shall go to the heirs and next of kin of the daughter so dying. It is impossible to doubt, from this language, that the distinction between real and personal estate was constantly in the mind of the testator, and that he intended that the part of the principal which consisted of realty should go to the heirs, and the part which consisted of personalty should go to the next of kin. We think we would be doing violence to the manifest intention of the testator if Ivins' Appeal. we held to any other construction. There is no occasion here to give an untechnical meaning to technical words, as was done in the cases referred to in the appellant's argument, in which the word "heirs was held to have the same meaning as next of kin, or distributees, or persons entitled under the intestate law. Such a course is sometimes necessary to effectuate a testamentary result, to prevent a will from becoming practically inoperative. Thus if a testator gives personalty to a class of persons whom he names as heirs, the law in aid of his intent will consider the word as descriptive of the persons who would take as the representatives by law of the deceased person. This doctrine is illustrated in various forms and circumstances in Patterson v. Hawthorn, 12 S. & R. 112; Buckley v. Reed, 15 Penn. St. 83; Gibbons v. Fairlamb, 26 Penn. St. 217; Eby's Appeal, 84 Penn. St. 241, and other cases. These cases however do not at all conflict with those of the other class which hold that where technical words are used, and there is a subject to which they may apply, the technical meaning must prevail. Thus in Clark v. Scott, 67 Penn. St. 446, where a testamentary disposition was made quite similar to the one we are considering, this rule was strictly applied. On page 451 SHARSWOOD, J., said: "The testator, Thomas P. Ash, after devising his residuary estate, real and personal, to several persons, declared that in case of the death of either of them before him, the devise or bequest should not lapse, 'but shall go to, and be taken by the heirs, executors or administrators of said legatees or devisées so dying, in the same manner as if the same had been specifically devised.' He was evidently aware of the distinction between real and personal estate. He has used throughout his will the words legally appropriate to each. All his legacies of mere personalty are by the words 'give and bequeath,' but when he comes to the residuary clause in which he blends both his real and personal estate, he is careful to use the words 'give, devise and bequeath,' and adds a limitation to heirs, executors, administrators and assigns.' We may infer then that in the substituted gift for the apsed devise the word 'heirs' was used in none other than its legal technical meaning. Apart however from this very important assistance at arriving at the true intention of the author of the disposition, it is a canon of construction settled in many cases, that the word 'heirs' shall receive its appropriate technical sense, unless there is some language or expression which shows that it was used in the broader and more popular sense. Other illustrations of this |