Opinion · New York Court of Appeals
Ross v. . Mather
Ross v. . Mather, 51 N.Y. 108 (New York Court of Appeals 1872)
- Type
- Opinion
- Court
- New York Court of Appeals
- Jurisdiction
- New York
- Date
- 1872-09-05
- Topic
- general
“The two causes of action are entirely distinct, and there can be no recovery as for a breach of contract, where a fraud is the basis of the complaint.”
Citator
- Cited by
- 28 opinions
ROSSv. MATHER,51 N.Y. 108(1872)
ANDREW J. ROSS, Respondent,v. FRANCIS C. MATHER, Appellant.
Court of Appeals of the State of New York.
Argued May 10, 1872
Decided September term, 1872
Page 109
No allegations could have been inserted which would have more clearly constituted a case of fraud. That there was a warranty as well as representations, or that both are alleged to have existed, does not alter the case. Fraud may be based upon a warranty or upon representations, or upon both together. They may exist severally or together, and either or both may be the subject of fraud, and of an action for damages for fraud.
If the plaintiff had been able to establish a fraud in the sale, I cannot doubt that he would have been permitted to prove it under this complaint. I do not see upon what ground an objection could have been made to it. So if the allegations of the complaint had been positively stated and had been verified, an order to hold to bail must have been granted upon an application made to the proper officer. (Code, §§ 179, 188.)
I do not find any authorities in the courts of this State which sustain the position that this complaint may be considered as an action for a breach of warranty. None of the cases cited by the respondent's counsel are to that effect.
InMoorev.Noble(53 Barb., 425), the complaint alleged that the defendant falsely and fraudulently represented the horse to be of a certain value and guaranteed him to be sound and free from disease. The court held it to be an action for a fraud, and that to entitle the plaintiff to recover he must prove thescienter. (See alsoMarshallv.Gray,57 Barb., 414;McGovernv.Payn,32 id., 83.)Walterv.Bennett(16 N.Y., 250) andBelknapv.Sealey(14 id., 147) are hardly authorities on the question of whether the complaint in this action is in tort or assumpsit. They are authorities on the proposition that where the complaint is for a tort, the plaintiff establishing a case in assumpsit merely cannot recover.Page 112
The precedent in 2 Chitty's Pleadings (679, 8th Am. ed., from 6th Lond. ed.) and the case ofWilliamsonv.Allison(2 East, 446), are chiefly relied on by the respondent. The precedent cited in Chitty, which is for "a false warranty of a horse," does not sustain the claim. It omits the important allegation that the seller well knew the representation to be untrue. The precedent also at p. 279, "on a warranty of a horse to be sound," omits the same allegation. Both of these precedents contain the allegation used in all the old forms of assumpsit, that the defendant not regarding his promise, fraudulently intending to injure the plaintiff, craftily and subtly deceived the plaintiff.
The case ofWilliamsonv.Allisonis nearer to the point. The court hold that where all the allegations are made which are necessary to sustain an action in tort, if a warranty is also alleged, the tort may be disregarded and a recovery had in assumpsit.Dowdnyv.Mortimer,cited in the same authority, held that thescientermust be proved, and in that case no express warranty was alleged. In my opinion, this case is not in accordance with the authorities and practice of this State, and should not prevail.
The view of this pleading which I have taken is in accordance with our improved system of pleading, abolishing all prior forms and requiring the party to make a "statement of the facts constituting the cause of action." (Code, § 142.) In the present case, the plaintiff made a statement of facts which did not constitute his cause of action. The Code never intended that a party who had failed in the performance of a contract merely, should be sued for a fraud, or that a party who had committed a fraud should be sued for a breach of contract, unless the fraud was intended to be waived. The two causes of action are entirely distinct, and there can be no recovery as for a breach of contract, where a fraud is the basis of the complaint. (See authorities,supra.)Connaughtyv.Nichols(42 N.Y., 83) is the only authority cited to the contrary, and it does not sustain that position.Page 113
The judgment should therefore be reversed and new trial granted, costs to abide event.
That question was very fully considered inWilliamsonv.Allison(2 East, 446). The plaintiff in that action bought twenty-four bottles of claret, for the purpose of being exported to a foreign market for sale. The declaration charged that the defendant, well knowing the wine to be in an unfit and improper state for exportation, and falsely and fraudulently warranting the same to be fit and proper, falsely, fraudulently and deceitfully sold the same to the plaintiff, and, by means of the premises, falsely and fraudulently deceived him.
At the trial the plaintiff did not prove knowledge by the defendant of the unfit condition of the wine, and it was contended that he could not recover, inasmuch as there was no proof ofscienter,as laid in the declaration. The judge, however, held that the gist of the action was the warranty, and that thescienteralleged was mere matter of aggravation, and need not be proved. A verdict was rendered for the plaintiff, and a rule to show cause why it should not be set aside was thereupon granted, and upon its return and after argument, the rule was discharged. LAWRENCE, J., said, with respect to what averments are necessary to be proved, he took the rule to be, that if the whole of the averment may be struck out, without destroying the plaintiff's right of action, it was not necessary to prove it; and he referred to a case before Lord RAYMOND, who held thescienterthere alleged was not necessary to be proved, inasmuch as there was a warranty, and that thescienterwas only necessary to be proved where the action was in the nature of an action of deceit without a warranty.Page 114
LE BLANK, J., said that the insertion or omission of the fact of the defendant's knowledge, at the time, that the wine was unfit for sale according to the warranty, makes no difference, and that the allegation might, therefore, be struck out altogether.
The rule laid down and adopted in that case is recognized by Chitty, in his work on Pleadings. He says, in speaking of an action on the case as a proper remedy for a false warranty, and in prescribing the requisites or qualities of a declaration in such an action, that it is not necessary that ascientershould be alleged, and, if stated, need not be proved, and citesWilliamsonv.Allison, supra. (See 3 American, from 2 London edition, vol. 1, pp. 139, 376, marginal paging.)
His precedent or form of a declaration, in an action on the case for a false warranty on the sale of a horse, has been substantially adopted, and followed by the pleader in drawing the complaint in the action under review. (See vol. 2 of same edition, pp. 324, 325, marginal paging.)
It is said by the counsel of the appellant that, in that form, ascienteris not alleged. It is true that there is no express allegation of that fact, but it is alleged therein that the defendant falsely and fraudulently warranted the said horse to be sound, and quiet in harness, and it is well established that the words "falsely and fraudulently," when used to qualify the defendant'sanimusin making the representations, are equivalent to the formal statement, or constitute a sufficient allegation of ascienter,even in an action of deceit. (SeeBayardv.Malcolm,in the Court for the Correction of Errors, 2 Johns., 550, andThomasv.Beebe,25 N.Y., opinion of SELDEN, J., p. 246, and of DENIO, Ch. J., p. 249, etc.)
The principle deducible from the rule referred to is that, if the representation relied on as the basis of the action constitutes a warranty, then, if the property warranted does not answer the description, the party injured has a right to recover, irrespective of the question ofscienter. If, on the other hand, it is a false statement or affirmance, not amountingPage 115to a warranty, then an averment and proof of the knowledge of its falsity by the party making it are both necessary to give a cause of action.
The defendant, however, claims that whatever may have been the rule under the old system of pleading, the action, under the Code and the present system, was clearly "for damages for the deceit, and that fraud was the gravamen of the action."
There is no ground for this claim. All that is required by the Code is a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.
The complaint, in the present case, alleges a warranty, and false and fraudulent representations of the defendant as to the lameness of the horse sold by him and its cause, and that, relyingupon said warranty and representations, and believingthem to be true,purchased him, and every allegation of false and fraudulent representations is preceded by an allegation of warranty.
It cannot be said, after the plaintiff himself has alleged that he relied, in making his purchase, "upon saidwarrantyand representations," that fraud was the gravamen of the action. That statement by him concedes and admits that the warranty influenced his action, at least to some extent, and no representations, except those constituting it, are stated to have been made. Indeed, there is nothing set forth in the complaint to justify the inference or presumption that the plaintiff would have bought the horse on the representations alleged without the warranty, and if the statements that they were fraudulent or fraudulently made, and that the defendant knew they were false, were entirely omitted, the other facts stated a full and perfect cause of action against the defendant, and the omission to prove those statements did not, in any form or manner, or to any extent, qualify his liability. Being unnecessary and immaterial to the cause of action, they could have been stricken out, on motion, as irrelevant matters, and it was properly held on the trial that there wasPage 116no necessity of proving them, and that the plaintiff was entitled to a recovery without such proof.
This principle is fully settled inConaughtyv.Nichols(42 N Y, 83).
It may be proper, in conclusion, to refer to the report of the decision in this case, in 47 Barb., 582.
It is stated, in the statement of the case preceding the opinion of the court, that the complaint in the action alleged fraud and deceit in the sale of a horse by the defendant to the plaintiff; that the plaintiff made representations which he knew to be false, and that the defendant, by means of the premises, falsely and fraudulently deceived him (the plaintiff) in the sale of said horse as aforesaid to the damage of the plaintiff of $500, for which judgment was demanded. No reference or allusion whatever is made in that statement to the allegations ofwarrantycontained in the complaint, which, as was stated in the opinion of the court below and according to the views above expressed by me, made it a complaint for a false warranty of the horse, and not for deceit in the sale.
It follows, from what I have stated, that there is no ground for the reversal of the judgment. It must, consequently, be affirmed with costs.
All concur for reversal except LOTT, Ch. C., dissenting.
Judgment reversed.Page 117