35 Pa. Super. 270 | Pa. Super. Ct. | 1908
Opinion by
Had this action been trespass for deceit, the statement would have supported a recovery by the plaintiff because it avers that the representations' as to the quality and power of the engine, on the strength of which it was bought, were not only false in fact, but knowingly and fraudulently so, made for the purpose of deceiving. This scienter is the gist of the action for deceit: Erie City Iron Works v. Barber & Co., 102 Pa. 156. But the action is assumpsit to recover damages by reason of the alleged failure of the engine to measure up to the seller’s representations as to its capacity, which representations, it is claimed, amounted to a warranty. If indeed these representations, construed as the law would construe them, amounted to a warranty that the engine would generate twelve horse power, and there was a breach of that warranty, the mere fact that the statement avers that the representations were not only untrue, but were fraudulently made with intent to deceive, will not prevent a recovery for a breach of warranty in an action of assumpsit: Vanleer v. Earle, 26 Pa. 277; Erie City Iron Works v. Barber, 102 Pa. 156; Dutton v. Pyle, 7 Pa. Superior Ct. 353.
We must therefore accept the verdict as establishing that there was a warranty and a breach, and the right of the plaintiff to recover could safely rest on these two established facts unless the right was lost or waived by an undue and unreasonable delay in making complaint. Whether or not there was such delay, under the peculiar circumstances of this case, became, we think, a mixed question of law and fact. It was fairly submitted to the jury under proper instructions and, like the other questions previously discussed, was settled by the verdict.
What, then, was the proper measure of the plaintiff’s damages
If the plaintiff can again satisfy a jury that the defendant warranted the engine to be of twelve horse power; that there was a breach of that warranty; that he honestly and in good faith made complaint as soon as he was reasonably satisfied, under the circumstances, that the engine he got was not the engine he bought, then he will have made out a case. But if he seeks to recover more than nominal damages, he must establish by proof that he has suffered such actual injury as the law recognizes as ground for substantial damages in cases of this character.
Judgment reversed and a venire facias de novo awarded.