Moore v. Noble

By the Qourt, Bacon, J. If the action, in this case, had been simply for a breach of warranty, it is possible the judgment might be upheld, although the evidence is far from being very satisfactory, either that an unsoundness existed at the time of the sale of the mare, or that. the plaintiff relied upon, and bought upon, the faith of the alleged representations of the defendant. And in this [427] respect it would be immaterial whether the defendant did or did not know of the unsoundness, prior to the sale; because upon an absolute warranty it is unnecessary to allege a scienter, and upon such a representation a party is bound to accountability for an unsoundness, whether he knew it or not. (Case v. Boughton, 11 Wend. 106.) But in an action for a deceit in a sale, where the fraud is the gist of the action, the rule is otherwise. In' such a case, if there is no evidence of a scienter, the action cannot be sustained. It may not be necessary, in all cases, to aver knowledge on the part of the defendant, of the falsity of the representations, and in the case of Thomas v. Beebe (25 N. Y. Rep. 244) it is held that an averment that the defendant “falsely and fraudulently represented,” is a sufficient statement of the scienter. That the complaint in this case is for deceit in the sale, willfully and knowingly perpetrated by the defendant, is manifest. To give it any other construction would be to violate all the rules of language and of pleading. It avers that to induce the plaintiff to purchase, the defendant falsely and fraudulently represented the horse to be worth $120, and guaranteed him to be sound in all respects, and free from disease; that he was not sound, and not worth $120, but was unsound and had a disease well known to the defendant at the time of the sale. These are substantive averments on which the action is founded, and it was necessary to prove them; and the rule in a justice’s court is the same as in all other courts, that if a material part of the plaintiff’s case is wholly unsupported by evidence, a judgment in his favor will be reversed on appeal, whether the trial is with or without a jury. (Tifft v. Tifft, 4 Denio, 175.) In this case there was an utter failure by the plaintiff to prove that the defendant had any knowledge of the alleged unsoundness, and the defendant expressly negatived any such knowledge. Without this proof the plaintiff was not entitled to recover, in the form of action he [428] elected to bring, and the judgment should have been reversed. [Onondaga General Term, April 2, 1867.