Barney v. Dewey

Spencer, J., delivered the opinion of the court. The defendant has demurred, specially, to the declaration, for three causes; 1st. That it does not set forth the contract between the parties; 2d. That it does not state any consideration moving from Barney to buy the horse of Dewey ; 3d. That thp plaintiff [226] founds his right of action bn the recovery had against him by a. third person; and, 4th. Because the declaration contains the evidence of facts, and not the facts themselves. None of the objections are well founded,' The declaration in not very technically drawn, but it contains every' essential requisite ; it is a mistake to suppose that the action is founded on a contract; it is for a fraud. Fraud, or deceit, accompanied: with a damage, is a good Cause of. action; and the late Ch. J. said, (in Upton v. Vail, 6 Johns. Rep. 182.,) that this is as just and permanent a .principle as any in our whole jurisprudence. It was not requisite to set forth the contract between the parties, or any consideration ; it is enough to state the fraud and deceit, and the damages. ’ Had the defendant given the horse to the plaintiff, affirming him to be his, and had the plaintiff been, afterwards, prosecuted 'for the horse, and subjected to costs and damages, he might1 haVe maintained an action for the fraud and damage. ^ The. fact of a recovery in the action against the plaintiff, by Thatleus Dewey, on the ground that the horse was pot the pro-' per.ty of the defendant, was not only a proper averment in .the' declaration,'but it would be conclusive against the defendant, if proved. (Blasdale v. Babcock, 1 Johns. Rep. 517.) There is no allegation of notice to the defendant of the pendency of the suit brought by Thadeus Dewey, ’but there is an averment of a -fact tantamount. It is alleged, that the defendant wás a witness on that trial, and proved, himself, that he did not own the horse when he sold him to the plaintiff. With respect to the omission to state the price paid for the horse, it is only a' matter relating to the liquidation of damages ; and it is a principle that, after showing a right to damages, it is matter proper for the jury, and is not necessary to be shown to the court in the-first instance, . (1 Chitty's Pl. 296.) I perceive no substantial,, or even formal, objection to the de» plar$tio% Demurrer overruled.