Shepherd v. Worthing

The opinion of the Court was delivered by Royce, J. The declaration below was assumpsit, on the promise of the defendant, that the horse sold by him to the plaintiff [193] was sound. On trial, the plaintiff did not prove any actual promise or warranty, but offered to prove that the defendant practiced a fraud and imposition upon him, by saying that the horse was sound for any thing he knew, when in fact he knew it to be unsound. This evidence was offered upon a supposition that, upon proof of such facts, the law would imply a promise on the part of the defendant, which would support the declaration. And to revise the decision of the county court, in admitting that evidence, is the principal design of this writ of error. S. S. Phelps and George Chipman, for the plaintiff in error. R. B. Bates, for the defendant in error. It is undoubtedly true, that in some cases, a promise will be inferred from the proof of fraud, in the sale of property ; but then the fraud must be substantially alleged, so that it may appear from the declaration itself, that the gist and gravamen of the action is fraud ; though in form assumpsit, it must appear to be substantially a tort. Otherwise, the Court will consider an express promise to be intended, and hold the party to proof of a contract. The usual way of setting forth the fraud, is to allege the scienter directly; though other averments have been considered equivalent, as that the defendant falsely and fraudulently warranted or promised, &c. Now, the present declaration has no such substantial allegation of fraud, nor any thing to mark it as a declaration for fraud, unless it is contained in the concluding part, where the breach of the promise is assigned. It is there said, “that the defendant craftily and subtilly deceived and defrauded the plaintiff in this, that the horse was not sound.” These expressions, however, do not amount to a charge of positive fraud, unless fraud must necessarily result from the fact, that the horse was not sound. But the falsity of a promise or warranty, does not alone constitute fraud: it must be falsity, within the knowledge of the party. The declaration must, therefore, be construed to have set forth an express promise, and the evidence admitted, having no tendency to establish such a promise, was irrelevant, and should have been rejected. Judgment, that there is error, &c.