Hillman v. Wilcox , 30 Me. 170 ( 1849 )

Wnnns, J.

—This was an action of assumpsit upon a warranty, alleged to have been made by the defendant upon an exchange of cattle, in representing those owned by him to be sound. It is now well settled, that an affirmation or representation, in relation to the quality of a chattel at the time of the sale or exchange, is considered a warranty, when it is so intended by the parties, and is not mere matter of opinion. Hastings v. Lovering, 2 Pick. 214.

The Judge of the District Court instructed the jury, “ that this was an action of assumpsit, and to maintain it, it. would be necessary for the plaintiff to prove, that the defendant warranted the cattle to be sound at the time of the sale; that representations that they were sound, if false and the defendant was proved to have known they were false, would not be sufficient to maintain the action in its present form, although they would be sufficient to maintain an action for deceit in a different form from this action.” .

If the defendant represented his oxen to be sound, when he knew they were not, and the parties relied upon the representations as a warranty, he would undoubtedly be liable 'to an action ex delicto for the deceit. The plaintiff might elect to sue him in assumpsit or case, if the representations were intended as a warranty. 1 Chitty’s Plead.- 138; Williamson v. Allison, 2 East, 446. The plaintiff might adopt either form of action. He would not be compelled to explore the disposition of mind, with which the defendant made the representations, if they were sufficient of themselves to imply a warranty. He could not be deprived of his action of assumpsit upon representations amounting to a warranty, because they were made by the defendant malo animo. When /there is a warranty the scienter is immaterial, and upon a breach of it, the form of action may be in case or assumpsit. V

It appears from the case of Williamson v. Allison, that the ancient mode of declaring upon a broken warranty, was in tort, that the warranty is the thing, which deceives the buyer, who relies upon it and is put off his guard, and the breach of it establishes the deceit, but it was found more convenient to declare in assumpsit for the sake of adding the money counts.

In that case the declaration was in tort, for a breach of warranty, and although the scienter was alleged, it was held unnecessary to prove it.

The exceptions are sustained and a new trial granted.