Pettigrew v. Chellis , 41 N.H. 95 ( 1860 )

Fowker, J.

Tbe principal questions arising in this case have so recently been considered by the court in Page v. Parker, 40 N. H. 47, that it is hardly necessary to do more than refer to the report of that decision. Although there was some difference in the terms of the agreements under which the papers were deposited in that case and the present, yet it seems quite clear that this difference cannot change the rule of law applicable to the conduct of the parties. The plaintiff here, as there, brought his action to recover damage for fraud and deceit in the representations accompanying negotiations for the sale of real estate. Here, as there, the gist of the action was the alleged wilfully false and fraudulent character of those representations; the unjust and wrongful purpose of the defendant, in intentionally and knowingly contriving falsely to mislead and deceive the plaintiff to his damage. If the representations relied upon as the ground of action were honestly made and believed by the defendant at the time of the negotiations and of the bargain and conveyance, no knowledge of their incorrectness subsequently acquired by him, after the negotiations had been consummated in a written contract, could make those representations wilfully false and fraudulent; nor could his omission to communicate such subsequently acquired knowledge to the plaintiff have that effect, although the papers were to be delivered only with the consent of both parties. If the defendant honestly believed the farm to contain the quantity of land represented by him at the time it was conveyed, and there was, as would seem to have been the case, no warranty of the quantity in the deed, but it was purchased and sold as it might turn out to be, it is difficult to see what legal remedy the plaintiff could have, or what wrong he could complain of, if it proved to contain a less number of acres than both parties honestly supposed 4 it to consist of. Upon the facts found in the present ease' suppose the defendant had informed the plaintiff, before the delivery of the papers, that the quantity of land in the farm was actually less than he had honestly believed and represented it to be, what legal remedy could the plaintiff have had ? How, and upon what ground of law or equity, could he have avoided fulfilling the contract entered into as the result of those negotiations, by paying his notes and taking the deed ? But it is unnecessary to determine this inquiry.

The only question here is, whether the neglect to communicate subsequently acquired information, could operate back and make representations honestly made, and believed to be true, in the course of negotiations that were entirely completed and finished, wilfully false and fraudulent ; and we think it entirely clear that it could not.

In Chandelor v. Lopus, Cro. Jac. 4, Lopus had brought an action on the case for deceit, in the King’s Bench, alleging that Chandelor, being a goldsmith, and having skill in jewels and precious stones, had a stone which he affirmed to be a bezoar stone, and sold it to him for one hundred pounds, when in truth it was not a bezoar stone. The defendant pleaded not guilty; after verdict and judgment for the plaintiff, error was brought in the Exchequer Chamber, because the declaration contained not matter sufficient to charge the defendant: viz., that he warranted it to be a bezoar stone, nor that he knew it was not a bezoar stone ; for it might be that he himself was ignorant whether it was a bezoar stone or not. And all the justices and barons (except Anderson) held that for this cause it was error: for the bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action. Croke adds, that they held further, that although the defendant knew it to be no bezoar stone, it was not material; for every one, in selling off his wares, will affirm that his wares are good, or the horse which he sells is sound, yet if he warrants not them to be so, it is no cause of action; and the warranty ought to be made at the time of the sale; wherefore, forasmuch as no warranty was alleged, they held the declaration to be ill. Dyer, however, in reporting the ease, says the opinion of Popham., C. J., was,, that if I have any commodities which are damaged, whether victuals or otherwise, and I, knowing them to be so, sell them for good, and affirm them to be so, an action upon the case lies for the deceit; but, although they be damaged, if I, knowing not that, affirm them to be good, still no action lies, without I warrant them to be good. Andrews v. Boughey, 1 Dyer 75, a, in margin.

The distinction thus so long ago indicated by Popham, C. J., seems well established by numerous cases, and the doctrine is well established, that where property is sold with a warranty, it is not necessary to aver a scienter, or if averred, it need not be proved; but where there is no warranty, the scienter is material, and must be both averred and proved. Williamson v. Allison, 2 East 446, where Lawrence, J., refers to - v. Purchase, at Guildhall, S Geo. II, before Lord Raymond, C. J., as supporting the same doctrine.

In Springwell v. Allen, Alleyn 91, more fully reported in note to 2 East 449, which was an action on the case for deceit in selling a horse as the defendant’s own, when it wa's in truth the horse of A. B., upon not guilty pleaded, it appeared that the defendant bought the horse in Smith-field, but did not take care to have him legally tolled. Yet, as the plaintiff could not prove that the defendant knew it to be the horse of A. B., the plaintiff was non-suited ; the court holding that the scienter or fraud was the gist of the action where there was no warranty; but where there is warranty, the party takes upon himself the knowledge of the title of the horse and of his qualities.

So, if a man sell six blank lottery tickets, and afterward another, as owner of these tickets, recover them of the vendee, unless the vendor knew them to be the property of another, or warranted them, neither this action-— case for deceit — nor assumpsit for money had and received, will lie. Per Holt, C. J., in Paget v. Wilkinson, cited in note to 2 East 449.

Although the more general and better opinion in this country undoubtedly is, that the seller of a chattel, if in possession, warrants by implication the title to it, contrary to what would seem to have been the impression of the court in some of the cases just cited, this does not, we apprehend, change the rule as to the requisite averments in a declaration, and the proofs necessary to sustain an action for deceit, where no such warranty exists, or in respect to matters not covered by it where it does exist. The subject of the warranty of the title of chattels in possession by the vendor is discussed in 1 Parsons on Contracts 457, 458, and the American authorities collected in note to page 458.

In the present case, the gist of the action being the alleged false and fraudulent representation in the course of negotiations as an inducement to the contract, it was necessary for the plaintiff to aver and prove that the defendant knew the representation to be false when he made it, and this proof was not established by showing that after the negotiations were concluded, and had been consummated and merged in a written contract without warranty, the defendant ascertained it to be false, and neglected to communicate this information to the plaintiff.

The instructions requested were, therefore, properly refused, while those given were sufficiently favorable to the plaintiff. There must, then, be

Judgment upon the verdict.