Wilson v. Marsh

| N.Y. Sup. Ct. | Aug 15, 1806

Livingston, J.

Here is a written assignment. You. cannot recover on a parol affirmation made at the time, on the ground of warranty. You must go for the deceit.^*

Thompson, J.

All the cases of an affirmation’s being an implied warranty, relate to the title only, not to the quality of the thing sold.

Per Curiam.

The first count charges that the defendant made a false affirmation scienter, and is clearly in deceit, and not on any warranty. It states further, that ■ there was a written assignment which contains no warranty. The plaintiff therefore, could maintain an action only for the deceit. The first count requires a plea of not guilty, and the second, non-assumpsit. Two causes of action, as tort and assumpsit, which require different pleas, cannot be joined. The demurrer is well taken, and the defendant is entitled to judgment; but the plaintiff has leave to amend his declaration on payment of costs.

judgment for defendant.

* Ante, p. 414. Mumford and others v. McPherson and others.