| Vt. | Apr 15, 1855
The opinion of the court was delivered by
The only question which has been raised in the argument of this case arises on the motion in arrest. The action is in case, in form ex delicto ; in which the plaintiff complains of a fraud, deceit and false warranty in an exchange of horses with the defendant. The principles governing the rights of parties, in cases of this character, seem to be well settled in this state by former decisions. When, on a sale or exchange of property, false representations have been made, but no warranty, a scienter must be avered in the declartion and proved on the trial. If a warranty was made, and that warranty is false, this form of action can be sustained, as well as assumpsit, and in either mode, a scienter need not be averred; or if averred, need not be proved. Doug. 18. 2 East. 451. 1 Chitty on Plea, 139. From the case of Vail v. Strong, 10 Vt. 457" court="Vt." date_filed="1838-03-15" href="https://app.midpage.ai/document/vail-v-strong-6572068?utm_source=webapp" opinion_id="6572068">10 Vt. 457, it seems now settled, that the party may so frame his declaration as to be adapted to either mode of proof. If the declaration is in case for a false warranty, and a scienter is averred, the party may recover on proof of the warranty and its breach, without the proof of a scienter; or if the party fails in the proof of the warranty, and can prove a scienter, he may recover for a deceit. As observed by Judge Phelps in the case referred to, the declaration, in that form, has a two fold aspect;
In this case the declaration, as to the sufficiency of its averments has pursued the form as given and sustained in the case of Beeman v. Buck, 3 Yt. 53, and in setting forth the contract and its breach, has adopted the language as used in Weall v. King, 12 East. 452. The contract or bargain for an exchange of horses, the mutuality of that contract, the false warranty and scienter, are facts substantially averred in the declaration, and on general demurrer would be admitted to be true. The question is not whether those facts are formally alleged, but whether they are substantially averred though informally; if so, the declaration will be good on general demurrer, and particularly so on a motion in arrest.
The judgment of the county court must be affirmed.