Carter v. Glass

• Decision Date: 23 June 1880
• Citation: 6 N.W. 200,44 Mich. 154
• Court: Michigan Supreme Court
• Parties: CARTER v. GLASS.

6 N.W. 200

44 Mich. 154

CARTER v. GLASS.

Supreme Court of Michigan

June 23, 1880

A party who has been induced to exchange a horse for another by means of a false warranty of the horse received, may sue in tort for the deception and set out in his declaration the false warranty as the means whereby he was injured. The fact that he sets out the warranty in his declaration, and avers its breach, does not make his declaration one in assumpsit, when the essentials of a declaration in the case appear.

Error to Cass.

Howell & Carr, for plaintiff in error.

Harsen D. Smith, for defendant in error.

COOLEY J.

But one question is presented by this record, namely, whether the count in the plaintiff's declaration, on which he was permitted to recover in the court below, was a count in tort or upon a warranty. The count is as follows:

"And for that, whereas, the said plaintiff heretofore, to-wit on the twenty-eighth day of November. A.D.1879, at the township of Porter, in the county of Cass and state of Michigan, at the special instance and request of the said defendant, bargained with the said defendant to exchange with the said defendant the certain horse of the said defendant, and for a certain horse of said plaintiff of great value, to-wit, of the value of $150, the said defendant then and there warranting the said horse to be sound and all right every way, then and there falsely and fraudulently sold and exchanged the same horse with the said plaintiff for the said horse of the said defendant, to be delivered to said plaintiff as aforesaid; and the said plaintiff, confiding in the said warranty that said horse was sound and all right every way as aforesaid, afterwards to-wit, on the day and year aforesaid, at the township of Porter, in the county of Cass and state of Michigan delivered his said horse to the said defendant, in exchange for the said horse of the said defendant; whereas, in truth and in fact, at the time of the making of the said false warranty as aforesaid, and of the said exchange as aforesaid, the said horse of the said defendant was not sound and all right every way, but on the contrary thereof then was, and still is, unsound, and hath become and is of no use or value to the said plaintiff, and also by means of the promises the said plaintiff hath lost and been defrauded of the use of his said horse, to-wit, at the township of Porter, in the county of Cass and state of Michigan aforesaid, and so the said plaintiff said that the said defendant, on the said sale and exchange, falsely and fraudulently deceived and defrauded the said plaintiff as aforesaid, at the township of Porter, in the county of Cass and state of Michigan aforesaid; and also the said plaintiff was then and there put to great expense and charges in and about feeding, keeping and taking care of the said horse: wherefore, the said plaintiff saith that he is injured and hath sustained damages to a large amount, to-wit, to the amount of $100, and, therefore, he brings suit," etc.

The court below treated this as a count in tort, and allowed the plaintiff to recover as upon a rescission of the contract. The defendant insists...