Foster v. Estate of Caldwell

[180] The opinion of the court was delivered by Bennett, J. We think there was nothing improper, in the court’s permitting the form of the verdict to be amended. This action is brought upon a contract of warranty, and no recovery could have been had, without proof of the contract. There is no allegation of a scienter in the declaration, and consequently there can be no recovery, upon such a declaration, for a deceit, notwithstanding the declaration is, in form, in case for a false warranty. It appears that the jury returned á verdict of “guilty,” and that the court, on motion, after the panel was dismissed, permitted the verdict to be amended. The bill of exceptions shows, that the general issue was pleaded by the defendant; but we do not find upon the records any plea in fact put in. We presume, however, that the plea was non assumpsit, and that the amendment of the verdict was made to meet the issue joined between the parties. Any' mistake of the clerk, in entering up a judgment, or in the form of a verdict, may well be amended. In the case of The Commonwealth v. Judd et al., 2 Mass. 334, the verdict in a criminal case was amended, by inserting the words “ in manner and form as set forth in the indictment. ” So in 1 Dallas, 134, a verdict, in an action of ejectment, for one half of the premises, and nothing said as to the remainder, was amended by adding “and for the residue they find for the defendant. ” In Warren v. Adm’r of Henshaw, 2 Aik. 145, a general verdict in an action of ejectment was corrected by the Supreme Court, it appearing, by the bill of exceptions, that the defendant had an interest in the premises. The objection to the verdict, as returned by the jury, in this case, must have been as to its form ; and the court must possess the power to correct such informality. See Mason v. Lawrence, 2 Vt. 560. If, in an action of assumpsit, the defendant pleads [not guilty, and issue is joined thereupon and found for the plaintiff, though it is an issue misjoined, yet he shall have judgment. 1 Jac. Law Diet. 88. This informality is aided by the statute of amendments. The review was properly denied in the county court. This case came to the county court by an appeal from commissioners. In eases of appeal no review is allowed, except in some special cases, where there is an express statute provision giving it. There is none, giving a review in cases appealed from commissioners. [181] The more important question, in this case, arises upon the charge of the court. The jury were instructed, that an affirmation, that the sheep were sound and free from, the foot rot, in legal effect, constituted a contract of warranty. Will the adjudged cases sustain such a proposition 1 We think not. No express form of words is necessary, to constitute, a warranty ; but to constitute an affirmation, made at the time of the sale, a warranty, it must appear to have been so intended and understood, and not to have been the expression of mere matter of opinion. The sense, in which an affirmation was intended, cannot be matter of law, but should be submitted to the jury. See Seixas v. Woods, 2 Caine 56; Beeman v. Buck, 3 Vt. 53; Chapman v. Murch, 19 Johns. 290; Cow. & Hill’s Notes to Ph. on Ev., Part. 1, p. 512. Unless it appears, that the words of affirmation were intended and .understood by the parties as a contract of warranty, they should be treated as the mere expression of opinion. Sweet v. Colgate, 20 Johns. 203. 3 T. R. 57. This is according to the whole current of authorities. We think, then, that it was error for the court to assume, as matter of law, that the words proved on trial created a warranty. The charge of the court is explicit on this point, and cannot be said, as has been argued, to have been qualified in a subsequent part of it. The case of Cramer v. Bradshaw, 10 Johns. 484, relied upon by the plaintiff, to say the least of it, is, in my opinion, questionable authority. How the words of recital in a bill of sale, “ being of sound wind and limb and free from all disease," should constitute an express warranty of soundness, is not readily comprehended. It appears to me far more rational, to treat them as a mere representation, descriptive of the qualities of the property transferred. It is a per curiam case, and appears not to have been much considered. The case of Wood v. Smith, 4 C. & P. 45, [19 E. C. L. 267,] is also much relied upon by the plaintiff. In that case the defendant, upon the sale of a horse, said to the purchaser, that “ he was sound for anything he knew of; ” and upon being inquired of if he would warrant him, he replied, that he would not warrant anything; yet it was held, that this was a limited warranty of soundness, that is, ns far as the defendant knew, and that assumpsit would lie, if the horse was unsound, and the seller knew it. It appears to me, that in this case the purchaser’s remedy should have been by an action for a deceit by [182] false representation. The refusal of the defendant “ to warrant any thing,” it would seem, should qualify the words which preceded, and make them, as they in fact are, but words of affirmation. In the case cited from Cowen’s Reports, Roberts v. Morgan, the plaintiff said to the defendant, that he would not exchange horses, unless the defendant would warrant his; whereupon the defendant replied, that “he was sound, excepta bunch upon his leg ; ” and thereupon the trade was made. In this case the declaration of the plaintiff, that he would not trade, unless the defendant would 10ar-rant his horse sound, was material, in showing how the defendant’s reply should be understood, though upon the face of it but words of affirmation. I readily concede, that it is quite apparent, in that case, that the parties understood the language used as creating a contract of warranty, and acted accordingly. Upon the whole, we think, upon this last point, that there was error, and that the judgment of the county court must be reversed.