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the breach of that contract. "A warranty," says Lord Mansfield, "extends to all faults known and unknown to the seller:" Stuart v. Wilkins, 1 Doug. 20. But if the vendor say to the purchaser, "I do not know whether the horse is or is not sound, and therefore will not warrant him; all I can say is, that I have long owned him, and know of no unsoundness:" here, manifestly, is no warranty; and, if the vendor spoke the truth, no fraud. But if the vendee can show that the horse was unsound, and the vendor knew it at the time of the sale, and that in consequence of the false representations he had made the purchaser had been defrauded, the vendor would be liable, not for a breach of a contract of warranty, for he made no such contract, but for making representations which he knew to be false. In such case, the guilty knowledge of the vendor would constitute an essential ingredient in the fraud; and in an action against him, should be both alleged and proved.

To entitle the vendee to recover, under such circumstances, his action must be founded, not upon a breach of a contract of warranty, but upon the fraud practiced by the vendor; or at least, there should be a count adapted to a charge of that character. This distinction is not only consonant to reason, but has the support of numerous decisions. A leading case upon this subject is that of Williamson v. Allison, already cited. There the action was case, founded upon a warranty of some claret, and the declaration, in form, was almost identical with the present. On the part of the defendant, it was contended that the plaintiff was not entitled to recover, inasmuch as there was no proof of the scienter as laid in the declaration. But the court held, that it was sufficient for the plaintiff to prove the warranty itself, and the breach of it; and that the averment of the scienter was an immaterial averment, and need not be proved. Ever since that decision, it has been considered as an elementary principle in law, that in an action founded upon a warranty of the soundness of a personal chattel, whether the declaration be, in form, ex delicto or ex contractu, it is unnecessary to aver or prove that the vendor knew the article to be different from what it was warranted to be. And in the most approved forms no such averment is made: 2 Ch. Pl. 279. And in a subsequent case, of the same kind, founded upon a warranty of some sheep, alleged to have been made by two defendants, the plaintiff proved the warranty to have been made by one of them, but there was no evidence affecting the other; whereupon the judge directed a nonsuit. Upon an application

to set aside the nonsuit, it was claimed that the action was founded on the tort; that torts are in their nature several; and that in actions of tort, one defendant may be acquitted, and the others found guilty. Lord Ellenborough, in delivering judgment, said: "This is unquestionably true; but still it is not suf ficient to decide the present question. The declaration alleges the deceit to have been effected by means of a warranty, made by both the defendants, in the course of a joint sale by them both, of sheep, their joint property. The joint contract, thus described, is the foundation of the joint warranty laid in the declaration, and essential to its legal existence and validity; and it is a rule of law, that the proof of the contract must correspond with the description of it, in all material respects.' And the court held, that "in whatever action, be the same debt, assumpsit, or tort, the allegation of a contract becomes necessary, it must be proved as laid in all material respects;" and that in the case then under consideration, the allegation of warranty was material, and could not be rejected as surplusage: Weall v. King et al., 12 East, 452. The same doctrine has been recognized by this court, and the authority of that case sanctioned: Walcott v. Canfield et al., 3 Conn. 194.

The ruling of the judge on the circuit seems in direct conflict with these decisions. He told the jury, in substance, that it was enough for the plaintiff to prove a fraud in the sale of the horses, without proving an express warranty-or, in other words, that proof of fraud would dispense with proof of the warranty. In the cases cited, the warranty was deemed a material allegation, and one that must not only be proved, but must be proved substantially as alleged.

And such is unquestionably the true doctrine. The declaration states that, by means of a false warranty, the plaintiff was deceived in the purchase of the horses. There is no averment that any false representation or assertion was made, aside from what is contained in the warranty. Now if we strike out the averment respecting the warranty, we destroy the very foundation of the action; and there will be nothing left to sustain it. In this respect the averment is materially different from that respecting the scienter. That, as we have seen, may be entirely rejected as surplusage, and still a good declaration will remain.

It is however said that there might have been a warranty in this case, although the defendant said he would not warrant. It is undoubtedly true, that no particular form of words is required to constitute a warranty respecting a personal chattel:

Salmon v. Ward, 2 Car. & P. 211; S. C., 12 Eng. Com. L. 94. And had the judge submitted the question to the jury to say, from the evidence, whether, in point of fact, the defendant had not made the warranty, as set forth in the declaration, notwithstanding the assertion that he would not warrant, we are not prepared to say that he would have erred. Such question would have been a question of fact, peculiarly within the province of the jury. But the difficulty is, he did not so leave the question, but informed the jury that under certain circumstances proof of such contract was unnecessary.

Again, it is said, that the defendant is liable for his fraud, although he made no warranty. And this is also true. But here the difficulty again is, that the declaration is not adapted to the case. It should have been founded upon the false representations, which he made, and not upon a warranty which, for aught that appears, he never made. Had the plaintiff declared in assumpsit instead of case upon the warranty, it would hardly be claimed that the action could be supported, by merely proving a fraud in the sale. Indeed, this precise point has been so decided by this court: Dean v. Mason, 4 Conn. 428 [10 Am. Dec. 162]. That was an action of assumpsit upon a warranty, respecting the quality of some deer skins. The plaintiff failed to prove an express warranty; and the question was, whether he could recover either upon the ground of fraud or an implied warranty; and the court held that he could not. Hosmer, C. J., in delivering the opinion of the court, said that, "according to the most approved precedents, it was an action on the contract of warranty, and nothing more;" and he held the evidence of fraud inadmissible. The remarks of Van Ness, J., in Evertson v. Miles, 6 Johns. 138, were cited with approbation. "When the plaintiff does not go for a breach of contract, but grounds his action on deceit and fraud in the sale, the fraud must be averred and charged as a substantive allegation. To admit proof of it, without such averment, would be going wide of the issue, and taking the party by surprise." And Chapman, J., who differed from the other members of the court, only upon the subject of an implied warranty, said "the principles adopted by the court, in deciding that fraud in a sale will not support a count on an express warranty (I mean where there is no implied one), I fully concur in. The form of the action should be adapted to the nature of the injury. The defendant in an action on the warranty is not informed of the nature of the plaintiff's claim, and of course can not be prepared to make his defense."

This case conclusively shows, that in the case under consideration the plaintiff can not recover without proof of an express warranty; and had the declaration been in assumpsit, evidence of fraud on the part of the defendant, in the sale of the horses, would have been inadmissible, and have furnished no ground for a recovery. In the opinion of a majority of this court, the same reasoning and the same rule apply, when the declaration is in tort, and is founded solely upon a breach of a contract of warranty. We therefore advise a new trial.

2. Another question has been made, as to the amount of damages which the plaintiff may recover. And we are of opinion, that as the action was brought to recover damages for the mere breach of a contract, he is entitled only to such damages as he has sustained, by reason of such breach, without reference to his costs and expenses in prosecuting his suit.

New trial to be granted.

STORRS and ELLSWORTH, JJ., were of the same opinion.

HINMAN, J., delivered a dissenting opinion, in which CHURCH, C. J., concurred.

SCIENTER AS TO UNSOUNDNESS NOT NECESSARY IN CASE OF EXPRESS WAR. RANTY: See Thompson v. Tate, 3 Am. Dec. 678; Beeman v. Buck, 21 Id. 571. IN ACTION FOR BREACH OF WARRANTY, EVIDENCE OF FRAUD, if there is no substantial allegation of fraud, is inadmissible: Dean v. Mason, 10 Am. Dec. 162. And proof of fraud in such a case will not warrant a recovery: West v. Emery, 44 Id. 356. And when a vendor sells an article, sound or unsound, the fact that he knows it to be unsound, if he makes no false representations, will not render him liable: West v. Anderson, 21 Id. 737. The vendor's scienter in such a case is immaterial: Hyatt v. Boyle, 25 Id. 276. If there is an express warranty, the fact that the purchaser knows the article to be unsound will not exempt the vendor from liability: Stucky v. Clyburn, 34 Id. 690.

VENDOR'S LIABILITY FOR FRAUD WHEN THERE IS NO WARRANTY: See McFarlane v. Moore, 3 Am. Dec. 752; Westmoreland v. Dixon, 9 Id. 763; Hanks v. McKee, 13 Id. 265; Hughes v. Robertson, 15 Id. 104; West v. Anderson, 21 Id. 737. On the other hand, see Whitefield v. McLeod, 1 Id. 650; Moore v. Turbeville, 5 Id. 642; Williams v. Hicks, 19 Id. 693; Stewart v. Dugin, 28 Id. 348; West v. Emery, 44 Id. 356, and notes.

FRAUD OR WARRANTY ESSENTIAL TO RECOVERY FOR DEFECT OF ARTICLE PURCHASED: See Osgood v. Lewis, 18 Am. Dec. 317; Hyatt v. Boyle, 25 Id. 276; Kingsbury v. Taylor, 50 Id. 607, and notes. Unsoundness or fraud may be given in evidence, as a defense or in mitigation of damages, in a suit on an original contract of sale either upon a warranty or upon a fraudulent misrepresentation of its value: McCorkle v. Doby, 47 Id. 560.

MEASURE OF DAMAGES FOR BREACH OF WARRANTY in sale of chattel: See Cary v. Gruman, 40 Am. Dec. 299, and the note thereto.

MERRIAM V. HARTFORD ETC. R. R. Co.

[20 CONNECTICUT, 354.]

DELIVERY TO AND ACCEPTANCE BY COMMON CARRIER ARE ESSENTIAL to make him liable for goods, but the acceptance may be either actual or Constructive.

GENERAL RULE IS, THAT GOODS SHOULD BE DELIVERED INTO CARRIER'S HANDS, or those of his servants or authorized agents, to render him able therefor.

DEPOSIT OF GOODS ON CARRIER'S WHARF WITHOUT NOTICE to and acceptance by him, or his servants or agents, is generally insufficient to charge him with them; but if such deposit be made pursuant to a previous arrangement between the parties, or to a known habitual usage on the carrier's part to receive goods so deposited, it is good.

OBJECTION NOT TAKEN AT THE TRIAL of an action against a carrier for loss of goods deposited on his wharf for carriage without notice, upon proof of a particular usage to receive goods so deposited, that the court did not leave it to the jury to say whether or not the plaintiff in fact acted upon the faith of the usage, will not be heard on a motion for a new trial, where the defense was rested solely on want of notice.

WIFE IS COMPETENT WITNESS FOR HER HUSBAND, on the trial of civil actions, under the Connecticut statute.

EVIDENCE OF WITNESS'S GOOD CHARACTER FOR TRUTH, WHERE HE HAS NOT BEEN IMPEACHED, though generally incompetent, is admissible to corroborate him where he is a stranger residing in another state; but evidence of his general good character in other respects is not admissible. CASE for negligence in the transportation and delivery of goods, alleged to have been delivered to the defendants at New York for carriage to Meriden, Connecticut, and to have been lost. The principal question was as to whether or not there was a sufficient delivery of the goods to the defendants to make them liable therefor. There was evidence on the part of the plaintiff tending to show that the goods were delivered, properly marked, by one Crawford, a carman, at a certain dock in New York, exclusively used by the defendants; that the defendants' steamboat was lying at the dock at the time, and that the carman called to some one on board, who seemed to be in authority, and told him there was some freight for Meriden, to which the latter replied, "All right." There was also evidencetending to show a usage, on the part of the defendants, to receive and transport all freight delivered upon their dock, properly marked. The court instructed the jury, that a delivery to the carriers, or to some person authorized by them to receive the goods, was essential, and left it to them to determine from the evidence whether the person to whom Crawford said he gave notice was authorized to receive freight. And the court further

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