Laura A. Burgess & Co. v. Wilkinson

We think the exceptions must be overruled. It seems to us very clear that the action is not assumpsit; there is no allegation of any breach of contract or promise. The action, if not nugatory, is clearly trespass on the case in tort. The defendant contends that the action is not maintainable as case in tort, because the false affirmation, which is the gist of the action, is not alleged to have been made knowing it to be false, or to have been made fraudulently or with intent to deceive. There are cases, however, which hold that these averments are unnecessary when the affirmation by which the plaintiff, being a vendee or mortgagee of goods, has been damnified, was an affirmation of ownership by the defendant vendor or mortgagor in possession. Thus the case of Crosse v. Gardner, Carth. 90, was upon an affirmation that oxen which the defendant had in his possession and sold to the plaintiff were his, when in truth they belonged to another person. The objection was that the declaration neither stated that the defendant deceitfully sold them, nor that he knew them to be the property of another person; and a man may be mistaken in his property and right to a thing without any fraud or ill intent. But the court held that the action lay on the bare affirmation, because the plaintiff had no means of knowing to whom the property belonged but only by the possession. And so in Medina v. Stoughton, 1 Salk. 210, where the defendant being possessed of a certain lottery ticket sold it to the plaintiff, affirming it to be his, whereas in truth it was not his but another's, the court held the action would lie, the bare affirmation having the legal effect of a warranty. Both these cases are cited as authority by Buller, J. in Pasley v.Freeman, 3 Term Rep. 51, 57. In Adamson v. Jarvis, 4 Bing. 66, the case alleged was that the defendant, who was in possession of certain goods, represented to the plaintiff, who was an auctioneer, that he had the right to sell and dispose of them, and committed them to the plaintiff to sell at auction, and that the plaintiff, confiding in the representation, did sell them and account to the defendant for the proceeds; whereas the defendant deceived the plaintiff in that he did not have the right to sell the goods which belonged to another person, the consequence being that the plaintiff had to pay such other person for them. The court held, after verdict, on motion in arrest of judgment, that the declaration was good though it did not aver any scienter, not allege that the defendant made the false affirmation with intent to deceive. See, also, Defreeze v.Trumper, 1 Johns. Rep. 274. We do not find that these cases have ever been overruled. The ground of decision in them, or at least in the first two of them, which the more closely resemble the case at bar, seems to be that the affirmation of ownership amounts to, or is in the nature of, a warranty or unqualified undertaking for the truth of what is affirmed, and that therefore, if false, the plaintiff if injured by the falsehood and recover his damages in case, whether the defendant knew of the falsehood or intended any deceit or not. Per Maule, J., inCollins v. Evans, 5 Q.B. 820, 823; Snell v. Bickley, 2 F. F. 56.

Exceptions overruled.