The trial court properly set aside the verdict and granted defendant a new trial. The assignments of error must be overruled and the case remanded.
The action is assumpsit for recovery on a warranty. The warranty was to the effect that certain stock in a corporation, which defendant transferred to plaintiff as part payment for real estate conveyed to the former by the latter, was worth the face value of the shares.
The jury found a verdict in favor of plaintiff for the faсe value of the shares, with interest. On the question of the actual value of the stock at the time of the transaction, the еvidence is conflicting. We do not presume to pass on the weight of the evidence in this particular, yet it would seem to bе a most reasonable inference from the evidence that thé stock had some value. From the facts proved a jury wоuld scarcely be warranted in finding that the stock was absolutely without value. But, by reason of an erroneous theory that was follоwed at the trial, we can not say that the jury made a finding that the
The appropriate action for recovery, under the facts and circumstances presented, was that which plaintiff adopted — as-sumpsit on the express warranty. If fraudulent misrepresentation had bеen made to plaintiff in the transaction, he could have done all that the law required of him toward a full rescission of the сontract whereby he took over the stock as part payment for real estate, and then sued for damages if defеndant did not accept his offer to rescind. However, the two forms of recovery are quite distinct. Principles applicable to the one are wholly inapplicable to the other. The following text is in point: “There is a clear distinction bеtween an action for a breach of warranty and one for fraudulent representation; in the one the cause of action is ex contractu purely, while in the other it is ex delicto. In actions of the latter character a wilful intent to mislead or deceive is an éssential element of the right to recover, while in the former no such element is necessary and the good faith of the warrantor is immaterial; indeed, it seеms that evidence of fraud is incompetent, as being immaterial, in an action for a breach of warranty.” 30 Am. & Eng. Enc. Law 131.
Though plaintiff chоse the appropriate action, he failed to observe at the trial the distinction between the case plеaded and the other recovery he might have pursued; and, in submitting his evidence and in asking instructions to the jury, he seems to have had in mind а recovery on the theory that he had rescinded for fraudulent misrepresentation the contract whereby he took thе stock as part payment for real estate. Yet, he neither proved a complete rescission, nor anything estаblishing fraudulent misrepresentation, notwithstanding all this, the trial court adopted plaintiff’s erroneous theory of the action that wаs being tried and gave instructions to the jury embodying the same.
The jury were told that they should find for plaintiff the full
It is true, as is argued, the record shows no direct objection by defendant to the giving of this instruction. But we find the point saved by defеndant’s objection to a modification which the court made to an instruction asked by defendant. That modification embraсed this same erroneous principle that the court announced to the jury in the instruction for plaintiff. Defendant asked that the jury be instructed that the measure of damages in the suit on the warranty was the difference between the face value of the stock, which was guaranteed, and the actual value of the stock at the time of the transaction. The court gave suсh instruction, but, over the objection of defendant, modified it with these words: “unless they find that the representations as to the value оf the stock were fraudulently made.” So it appears indeed that defendant at the trial did protest by the record against the direction to the jury that they might find a verdict for the full amount of the face value on the theory of a rescission for fraudulent misrеpresentation.
From wliat we have stated, it will be observed that the court directed the jury that the case might be suscéptible оf the application of one measure of damages or the other. In this direction, the court was clearly wrong. But one measure of damages was properly applicable. That measure was correctly stated in the instruction askеd by defendant, before the court modified it. As originally framed, it fitted the ease. The modification introduced also a measure not applicable. It clearly tended to mislead the jury. For all that we can see, it caused the jury to find the amount of thе face value of the stock, as they did in the verdict. Since the court gave an instruction
Affirmed.