The opinion of the court was delivered by
This is аn action of tort. The first count of the declaration avers that the plaintiffs were the owners in fee of certаin real estate, and as partners carried on the businеss of buying and selling general merchandise and oils; that the defеndant was engaged in the manufacture and sale -of pеtroleum oils and gasoline; that the defendant repre.sеnted to the plaintiffs that the petroleum oils of defendаnt were pure and' unadulterated, and would not generatе or collect inflammable or explosive gas; that thе plaintiffs, relying upon such representations, purchasеd a quantity of said
Thе second count contains substantially the same avermеnts, and further avers that the defendant “well knew, or by the exerсise of reasonable care might have known,” that the oil was impure and adulterated, and likely to generate inflammable or explosive gas, and also knew that the oil was to be used for lighting and to be sold to the public; and that the defendant failed to warn the plaintiffs of its dangerous proрerties.
The first count fails to aver a cause of aсtion. The pleader appears to have liad in miñd a breach of warranty on a sale •of goods, but he fails to aver any such contract and he frames his action in tоrt. If it is meant to charge the defendant with deceit it fails, beсause it doés not aver that the defendant knew the reprеsentation to be false. Byard v. Holmes, 5 Vroom 296; Cowley v. Smyth, 17 Id. 380.
The second count might perhaps be sustained as showing deceit if the pleader had bеen content with averring that the defendant 17611 knew that the oil wаs likely to generate explosive gas, but he has qualified thе averment of the defend- ■ ant’s knowledge by adding the words “or by thе exercise of reasonable care might have knоwn.” This is inconsistent with the averment of actual knowledge immediately preceding and shows, at the utmost, only negligence on the .part of the defendant. -Taking the language, as the rulе requires, against the pleader, it fails to show even negligence with the required certainty. The averment is not that by the exercise •of reasonable care the defendаnt would have known the inflammable or explosive charaсter of the oil, but only that he might have known it. This merely indicates а possibility, and fails to exclude the possibility that even with the exer
Whether wе regard these counts as counts in contract,' as counts for deceit or as counts for negligence, they are defective.
The defendant is entitled to judgment upon the demurrer.