Lindsay v. Mulqueen

Barnard, P. J.: The complaint lacks a vital averment to make it one for fraud or deceit. It avers a warranty of a carpet to be English body Brussels all-wool carpet; that it was not such an one, but was partly jute, and that defendant knew it to |>e partly jute at the time of the warranty. It should have averred that the false representation was made with the intent to deceive. (Stitt v. Little, 63 N. Y., 427.) • Knowledge that a fact which is stated to be true upon a sale is false, will sustain a complaint in which it is averred that the falsehood was told with intent to cheat. Where there are two actions for the same breach, the pleader should leave no room for question. The complaint as it stands is a complete one upon a breach of contract of warranty. The words false and fraudulent have no significance in a pleading of themselves. A breach of warranty is actionable as a breach of contract only, even if the representation and its falsehood is averred to have been false and fraudulent. Scienter or knowledge of the falsity of the representation does not destroy the action upon contract. The true test of a pleading, whether it is for tort or contract, in such cases, depends upon the averment of an intent to cheat or deceive by the representations alleged to be false to the knowledge of the party making them. The complaint in this case lacks this averment and was properly held to be contract only. The judgment should therefore be affirmed, with costs. Gilbert and Dykman, JJ., concurred. Judgment and order denying new trial affirmed, with costs.