Ashe v. . Gray

Smith, C. J. “The weightiest considerations make it the-duty of the court to adhere to its decisions. No case ought to be heard upon petition to rehear unless it was decided hastily, and some material point was overlooked, or some direct authority not called to the attention of the court.” This language of the late Chief-Justice, found in the opinion in Watson v. Dodd, 72 N. C., 240, is almost in the very words reiterated by different members of the court in Hicks v. Skinner, at the same term; Lewis v. Rountree, 81 N. C., 20; Haywood v. Daves, Ib., 8; Devereux v. Devereux, Ib., 12; and Mizell v. Simmons, 82 N. C., 1. The rule is a safe and salutary rule, sufficient to- *139 admit of the prompt correction of errors in law, and securing consistency and uniformity in its established principles. We have not had our attention-directed upon this rehearing to any overlooked adjudication or authority upon the point wherein lies the alleged erroneous ruling in law, but the argument invites us to reconsider the complaint and put upon it and the results of the verdict a different construction from that before given. Upon a re-examination of the complaint, we adhere to the opinion, that while the first three articles, separated from what follows, will admit of an interpretation that the claim rests in contract, yet, considered in connection with the context and the complaint as an entirety, it is manifestly intended to set forth a cause or causes of action ex delicto, combining a cause of action upon a false warrant, which dispenses with a scienter, with one upon false and fraudulent representations in which a scienter must be alleged and shown. The gist of the complaint upon the false warranty being in the inducement which led to the making of the contract and not in the violation of the contract itself, the fifth article concludes with the averment that “by the said false, fraudulent, and deceitful representation, and by the false warranty of the defendant, the plaintiff was induced to exchange horses, with the defendant.” The vicious propensities of the horse seem to have been conceded, as no issue upon this matter was'submitted; and the sole controversy was as to the making the warranty, the alleged mismanagement of the horse by the plaintiff in the development of the vicious traits, and in contributing to his damages, and their measure. These responses are as appropriate to the cause of action based upon a false warranty, as to a cause of action founded on a contract-broken. We add to the cases cited in the former opinion, and in corroboration, the following: Lassiter v. Ward, 11 Ired., 443; *140 Blanton v. Wall, 4 Jones, 532; Chamberlain v. Robertson, 7 Jones, 12 ; Williamson v. Allison, 2 East, 446. The presence in the complaint of a cause of action whereof the court has not, with those whereof the court can take cognizance, cannot defeat the exercise of jurisdiction over the latter, and may be disregarded. Indeed, on demurrer, the effect of misjoinder is to separate the causes of action, not to put an end to the suit. Street v. Tuck, 84 N. C., 605 ; Finch v. Baskerville, 85 N. C., 205; C. C. P., §131. The complaint being for a tort, sustains the jurisdiction, though the charge of a guilty knowledge of the falsity of the representations which influenced the plaintiff in making the contract of exchange, may not have been proved, and for the want'of which no issue was asked to be made up. We therefore affirm the judgment and deny the application of the defendant at his costs. No error. Affirmed.