Kingsbury v. Taylor , 29 Me. 508 ( 1849 )

Tenney, J.

It has long been regarded as settled in England and in this country, that the vender of personal chattels is not liable for defects of any kind, in the thing sold, unless there is express warranty or fraud in the seller. The case of Chandler v. Lopus, Croke James II, was where a goldsmith had sold to the plaintiff a stone, which he affirmed to be a Bezoar stone, for £200, and the stone was not of that kind ; judgment was rendered for the defendant, because it was not alleged in the declaration, that the defendant knew it was not a Bezoar stone, or that he had warranted it as such. This case has not been approved by the Court in Massachusetts in its full extent. Bradford v. Manley, 13 Mass. 143. But upon the point involved in the case now under consideration, its authority is not questioned.

In Dawding v. Mortimer, in a note, 2 East, 450, which was an action founded in misrepresentation, or deceit, (not on warranty, assumpsit or contract,) it was declared, that the defendant sold to the plaintiff an article represented sound and perfect, which he knew to be unsound and imperfect, it was held, that the scienter must be proved. “ Where there is no warranty, the scienter, or fraud, is the gist of the action.” 2 Selw. 582, 583; Stuart v. Wilkins, Douglass, 20; Oldfield v. Round, 5 Vesey, 508.

The same doctrine is established in New York. Seixas v. Woods, 2 Caines, 48; Snell & al. v. Moses & al. 1 Johns. 96; Perry v. Aaron, ibid, 129; Defreeze v. Trumper, ibid, 274; Holden v. Dakin, 4 Johns. 421; Davis v. Meeker, 5 Johns. 354.

The decisions in Massachusetts have recognized also to the fullest extent a similar principle. In Emerson & al. v. Brigham & al., 10 Mass. 197, Sewall, J. says, “the rule has always been, I believe, that an action of deceit, or an action of the case for a deceit in a bargain or trade, is maintainable only when the deception complained of, has been intentional on the part of the seller. The doctrine is affirmed in Salem India Rubber Co. v. Adams & al. 23 Pick. 256. Also in Stone v. Denny, 4 Metc. 151, where authorities are reviewed, and in other cases.

The manner of declaring, where the action is founded in deceit, has always been uniform ; the gravamen has been the deceit, and the gist of the action the scienter. But when there has been a warranty, and a breach of it has been the gravamen, the mode of declaring has varied. Mr. Dane, in his Abridgement, vol. 2, page 555, says, “Before the year 1770, or thereabouts, the practice was to declare in tort, that is, to state the warranty, and the breach of it as the deceit or tort; and sometimes to join a cause of action in trover, considering the wrong in violating the warranty, as the gist of the action. The warranty was stated as the inducement, and the breach of it, a deceit, or wrong, and as the ground of the action. But as trover went out of fashion, and the money counts came more into use, it was found more convenient to declare in assump-sit on the warranty as a promise, and to consider the breach of it, as the breach of any other promise, and to join in the same declaration the money counts; no doubt justified where there is a real warranty, or a real engagement or undertaking by the seller, the thing he sells is sound, his own, &c. But he expresses a doubt, whether this election to declare in deceit or assumpsit, in the same transaction, can be extended beyond an implied warranty; because if there be no warranty at all, but a mere deceit or fraud practised,.it is clear that the action must be in tort; and on the other hand, if an express warranty is given on the sale, and in that manner the seller secures the buyer, and upon his contract to answer in damages, it is a question, whether the buyer is not confined to his contract and bound to declare and take his remedy upon it, as upon any other express contract which he holds. In Thompson v. Ashton, 14 Johns. 316, it was holden, that to entitle one to recover for a breach of a warranty, the action must be expressly founded upon the warranty. It is intimated in the case of Salem India Rubber Co. v. Adams & al., before cited, that if the plaintiffs had declared upon an express covenant of warranty embodied in the contract, according to the old forms, relying upon such express warranty, and its falsity, that it would bar an action of assumpsit upon the same warranty, because the same evidence would support both actions, and the damages recovered in one, would be a satisfaction of those claimed in the other.

From the case relied upon by the plaintiff’s counsel of Jones v. Bright, 5 Bing. 533, the Court did not, it would seem, regard the old form of pleading erroneous. That was an action sounding in tort, in the nature of deceit, to recover damages sustained by the plaintiff in the purchase of a quantity of sheathing copper, for a particular purpose, which was declared at the time of the purchase, manufactured by the defendants themselves, who were the sellers. The article was by no means such as was represented by the defendants. All imputation of fraud in the defendants, was disclaimed by the plaintiff, who was allowed to recover on the ground of an express warranty. Much reliance was placed on the ground, that the defendants were the manufacturers of the article sold. Park, J. in his remarks said, “ I entertain no opinion adverse to the character of the defendants, because the mischief may have happened by the oversight of those whom they employ; but on the case itself, I have no doubt, distinguishing as I do between the manufacturer of the article and the mere seller.”

In the case at bar, under the instructions given to the jury, they must have found, that the express warranty was not proved. The declaration in the writ does not allege that there was an express warranty or any representation equivalent thereto. And as the plaintiff did not prove or contend that the defendant at the time of the sale of the rye, knew that it was not such as he sold it for, an essential ingredient in an action sounding in tort, in the nature of deceit, is wanting. Such being the form of the action in this case, it can not be maintained upon the proof adduced. Exceptions overruled.