47 Barb. 582 | N.Y. Sup. Ct. | 1867
The action was tried as one sounding in contract, and not in tort, the plaintiff giving no evidence whatever of any knowledge on the part of the defendant, of the cause of the defects complained of in the animal purchased. The defendant's counsel raised the question, by motion for a nonsuit, and in various other ways, whether the plaintiff could maintain the action under the pleadings, without giving some evidence to show the defendant’s knowledge of the defect, or of the cause of it. The court held that it was unnecessary for the plaintiff to make proof of the scienter, but that proof of the warranty was sufficient. In this the court was clearly right. The action was not for the deceit in the sale, as appears by the complaint, but was for what is called in the old books of forms, a complaint for a 'false warranty of a horse. (Bee form, 2 Chit. PI. 679—6th Am. from 5th Bond, ed.) It is sometimes called a special warranty. It was a form of pleading quite familiar to lawyers before the adoption of the Code. The rule was well settled that in such a cáse it was wholly unnecessary to prove the scienter on the part of the seller. ( Williamson v. Allison, 2 East, 446.)
All the allegations of fraud might be stricken out without affecting the cause of action alleged in the complaint. The contract is clearly counted upon, and whether the defendant knew that the warranty was false at the time of making it, was of no importance.
The form in which the jury rendered their verdict was no error which can be made available on this motion. It was in substance a general verdict for the plaintiff, and was properly received and entered as such by the court. A new trial must, therefore, be denied. ■
Welles, E. Darwin Smith and Johnson, Justices.]
