Dye v. Wall

[586] By the Court. Nisbet, J. delivering the opinion. The declaration in this case contains a count upon the contract of warranty, contained in the bill of sale, to the admissibility of which in evidence exception was taken, and the plaintiff was put upon his election, whether he would rely upon that count or upon the counts for the fraud and deceit in the sale. He elected to rely upon the latter, to support which the bill of sale was offered in evidence. It contains a qualified warranty of soundness. The ground of objection to it as evidence is, that it is not set forth in either of the counts of the- declaration. Is this necessary % Were it offered under the count on the contract, it is clear that it would not be admissible unless correctly set forth. Whether a plaintiff can, in the same action, in different counts" proceed for the fraud and on the- contract of warranty, is a question not made by this record, and upon which we express no opinion. As this case is made before us, the question is the same as it would be if there were no count upon the contract. The question then is this — in an action for fraud and deceit in the sale of a slave, is the written evidence of thb sale, which contains a warranty, admissible when it is not described in the declaration 1 [1.] I apprehend there is no doubt but that a party may, where there is an express warranty, waive his right to- go thereon and proceed upon the fraud. Fraud vitiates all contracts, and is, of itself, a substantive ground of action. The party may treat the contract as a nullity and go in an action on the case for damages. Barney vs. Dewey, 13 Johns. Rep. 226. Upton vs. Vail, 6 Johns. R. 182. Wallace vs. Jarman, 2 Starkie, 162. Spafford vs. Griffin, 13 Johns. R. 328. Frost vs. Raymond, 2 Caines’ R. 193. Bostwick vs. Lewis, 1 Day, 250. Comyn’s Dig. Action on the case for Deceit, (a. 8.) 13 Johns. R. 396. 6 Cow. 346. 7 Wend. 9. Hancock vs. Ship, 1 J. J. Marshall, 447. [2.] Nor is it necessary in an action on the case for deceit, to set forth the contract. If it were, it is conceded that not being done, the written evidence would not be admissible. This point was ruled in Barney vs. Dewey, (13 Johns. R. 226.) Spencer, J. said, “ 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.” [587] In this action it is necessary to prove the sale of the slave. The bill of sale is the highest evidence of that fact, and although not set forth in the declaration, was admissible for that purpose. Let the judgment be reversed.