Beeman v. Buck

The opinion ofthe Court was pronounced by Paddock, J. This form of declaring on a warranty is new in the courts of this state, but not new in principle ; for prior to the case of Stuart vs. Wilkins, (Doug. 18,) it was the general practice to declare in tort on a warranty broken ; and when that case was brought forward for investigation, Lord Mansfield, at finding [57] an express warranty counted upon in assumpsit, so doubted the propriety of declaring in that manner, that he took the verdict subject to the opinion of the whole court; and, perhaps, the only inducement to change the custom of declaring in tort, in preference to assumpsit, was the convenience experienced in adding thereto the mony counts; for, as the evidence necessary to support as-sumpsit is proof of the sale, warranty, and breach of it, so in tort, nothing more was required. Williamson vs. Allison, 2 East, 450, If, then, assumpsit and case be concurrent remedies, (1 Chit. 134,) and the same proof is sufficient to support the action in either form, the whole averment of the defendant’s knowledge of the unsoundness of the mare might have been stricken out; for if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit; the form of the action not varying the proof. For, says Lord Ellenborough in Williamson vs. Allison, “ if one man lull another into security as to the goodness of a commodity, by giving him a warranty of it, it is the same thing whether or not the seller knew it at the time to be unfit for sale : the warranty is the thing which deceives the buyer who relies on it, and is thereby put oft his guard. Then if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit.” And of this opinion were the whole court. (See the forms in 2 Chit. 276, 277.) And although the plaintiff in this case charged the scienter, which was not stricken out on trial, yet he was not bound to prove it, the averment of the scienter not being necessary to a recovery : for the rule is, that if the whole of a statement may he stricken out, without destroying the plaintiff's right of action, it is not necessary to prove it. 1 Chit. 307. Royce, Aldis & Davis, for plaintiff. Hunt & Beardsley, for defendant. Farnsworth vs. Wright, decided in Franklin county, 1828, which has been cited by defendant’s counsel, was not a parallel case with the present, as the declaration alleged a deceit in the sale but no warranty ; therefore, it became necessary for the plaintiff to prove the scienter, which it would seem he failed to do. The Court are inclined to sustain the verdict, and affirm the judgement of the county court. Judgement affirmed.