Caldbeck v. Simanton

• Decision Date: 13 February 1909
• Citation: 82 Vt. 69,71 A. 881
• Parties: CALDBECK v. SIMANTON.
• Court: Vermont Supreme Court

71 A. 881

82 Vt. 69

CALDBECK

v. SIMANTON.

Supreme Court of Vermont. St. Johnsbury.

Feb. 13, 1909.

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

Action by George Caldbeck against Charles Simanton. Plea, the general issue. There was a trial by jury, and verdict and judgment for plaintiff. During the trial, and before plaintiff rested, defendant moved to dismiss the case because the action was founded on contract, and the writ was issued as a capias on which defendant's body was arrested. The motion was overruled, and defendant excepted. Judgment reversed, motion to dismiss sustained, and writ dismissed.

David E. Porter and Simonds & Searles, for plaintiff.

Harland B. Howe and Herbert W. Hovey, for defendant.

MUNSON, J. The plaintiff declares, in substance, that he bargained with the defendant for the purchase of a diamond, and that the defendant sold him the diamond for a certain price by "falsely and fraudulently warranting" it to be a perfect stone, when, in fact, it was not a perfect stone, but defective in certain respects stated, and that the defendant thereby "falsely and fraudulently deceived him." The service was by arrest, and the case stands on a motion to dismiss. The defendant argues that no scienter is alleged; that the declaration is in case for a breach of warranty; that there could be no recovery without proving the warranty; and that this conclusively determines that the action is founded on contract. No point is made distinguishing between the counts.

In 2 Chitty's Pleading, 279, there is a form for declaring in assumpsit on a warranty, and at page 679 there is one for declaring in tort on a warranty. The latter form is the one used here. The two forms were joined in one declaration in Dean v. Cass, 73 Vt. 314, 50 Atl. 1085, and the second was held to be in tort and improperly joined with the first. So the declaration before us may be classed, without special examination, as in form a declaration in tort. In pursuing the inquiry further it will be well to have in mind the nature of a warranty, and the history and characteristics of the remedies permitted for a breach of it. The ordinary warranty relates to the condition of the property at the time of the sale. Such a warranty, if broken at all, is broken when made. The breach consists in the fact that the property is not as it is stated to be. The warranty may be made merely as an assumption of a contract obligation, or it may be deceitfully made with a knowledge of its falsity. In either case it is made to induce the purchase. Personal actions are either for breaches of contract or for wrongs unconnected with contract; assumpsit being in the first class, and case in the second. Chitty, 97. The original action on the case, permitted in suits for which the established forms were not adapted, was not similar to the present action of assumpsit, but resembled rather the present form of a declaration in case for a tort. Chitty, 99. It was at first difficult to distinguish assumpsit from case; and the early decisions in actions on warranties were made before the boundary between the two remedies was well defined. Note to Chandelor v. Lopus, 1 Smith Lead. Cas. 178. The practice of declaring in tort for warranty broken originated in this early period; and the remedy then adopted continued in almost exclusive use until the middle of the eighteenth century. As late as 1778, Lord Mansfield considered an action of assumpsit for a breach of warranty so peculiar that he reserved the question of its sufficiency; and this method of declaring was then authoritatively sanctioned. Stuart v. Wilkins, 1 Doug. 17. Since then assumpsit and case have been recognized as concurrent remedies for breach of warranty. Williamson v. Allison, 2 East, 446; Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571; 19 Enc. Pl. & Pr. 82, and cases cited.

Closely connected with the subject of warranty is that of deceit by fraudulent representations. The two grounds of liability are entirely distinct, but both may be developed by one affirmation. The evidence may make the affirmation either a deceit or a warranty, or both. The allegations of a declaration charging deceit by means of a false warranty, and of one charging a deceit independent of warranty, are in other respects substantially the same, as is indicated by the first counts of the forms in 2 Chitty, 687, 688. If the allegation of knowledge in a declaration following the first count of the first of these forms be treated as surplusage, the case becomes an action of tort for a breach of warranty. This treatment of a declaration so framed was sanctioned in Williamson v. Allison, before cited, and that case has since been generally followed. The recognition of assumpsit and case as concurrent remedies for breach of warranty, and the decision in Williamson v. Allison regarding the scienter, have led to the adoption of forms confessedly designed to enable the plaintiff to recover for a breach of warranty or for deceit, as the case might develop. A short declaration, framed in this double aspect, was used in Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571; Vail v. Strong, 10 Vt. 457; West v. Emery, 17 Vt. 583, 44 Am. Dec. 356; Goodenough v. Snow, 27 Vt. 720; Pinney v. Andrus, 41 Vt. 631. This declaration, given in full in the case first cited, avers that the defendant deceitfully sold the property by warranting it to be as described, "well knowing" it to be otherwise. The first count of the form in 2 Chitty, 687, before referred to, is a more formal declaration of the same character. This form was followed in Harlow v. Green, 34 Vt. 379, and was apparently the basis of the declaration in Whitton v. Goddard, 36 Vt. 730. The direct allegation of knowledge contained in the phrase "well knowing" or its equivalent is ordinarily employed in declarations which claim a recovery on the ground of deceit, and its absence from the declaration used here is the basis of the defendant's claim.

The plaintiff claims that a sufficient averment of knowledge is contained in the form used. The inclusion of this form under the general marginal heading of "deceit" is of little consequence, especially in view of the early history of the subject. It is not probable that Mr. Chitty considered the allegations sufficient to show knowledge; for in subsequent forms for deceitfully selling property by falsely and frauduently warranting it the usual scienter is employed. The concluding averment that the defendant thereby falsely and fraudulently deceived the plaintiff cannot enlarge the effect of the matters previously alleged. If the declaration contains a "scienter," it must be—where the plaintiff claims it to be—in the allegation that the defendant "falsely and fraudulently warranted" the property. Words similar to those contained in tills declaration are found in the form at page 279, which is unquestionably a declaration in assumpsit. It is there alleged that the defendant, "contriving and fraudulently intending to injure the said plaintiff, did not perform or regard his said promise and undertaking, * * * but thereby craftily and subtilely deceived and defrauded the said plaintiff in this," that the property was not as warranted. But it will be noticed that the words in the two forms are used in different connections. In the assumpsit declaration the words quoted are applied to the breach of the defendant's promise, and not to the promise itself. In the declaration in tort the words "faisely and fraudulently" are applied directly to the act of warranting. This difference, however, is minimized by the fact that the undertaking is broken when assumed, so that in the first form the fraudulent intent is really laid at the time of the sale. The assumpsit form was considered in Shepherd v. Worthing, 1 Aiken, 188, and was held to contain no substantial allegation of fraud; but it was suggested that an averment that...