Price v. Lewis

• Decision Date: 21 July 1851
• Parties: Price <I>versus</I> Lewis.
• Court: Pennsylvania Supreme Court

Page 51

17 Pa. 51

Price versus Lewis.

Supreme Court of Pennsylvania.

July 21, 1851.

ERROR to the Common Pleas of Luzerne county.

H. Wright for plaintiffs in error.—That evidence was admissible to show a warranty or fraud, McDowell v. Bird, 6 Bin. 198; Work v. Grier, Add. 375; Id. 322; Pulhamus v. Purcell, 3 Pa. Law J. 399; Fonbl. 124.

H. B. Wright for defendant.—That there was no warranty in the case. That a naked affirmation does not amount to an express warranty, nor is evidence of it. That no implied warranty arises from an unfounded assertion of soundness in the sale of a chattel, but for a deceitful representation, the remedy is by an action ex delicto: McFarland v. Newman, 9 Watts 55; Jackson v. Wetherill 7 Ser. & R. 482; Steigleman v. Jeffries, 1 Ser. & R. 477. A tort is not within our defalcation act: Gogel v. Jacoby, 5 Ser. & R. 122.

The opinion of the Court was delivered July 21, by BELL, J.

The evidence rejected, in connection with that received, tended to show, not warranty for the breach of which an action ex contractu would be the proper remedy, but a fraudulent misrepresentation by the plaintiff below, of the quality of the article sold, which induced the purchase at the price agreed on. For such a wrong the form of action would be ex delicto, to recover damages for the tort committed: Kimmel v. Lichty, 3 Yeates 262; Jackson v. Wetherill, 7 Ser. & R. 480; McFarland v. Newman, 9 W. 55; and the question presented is, whether the pecuniary injury thus sustained, may be set up in this action, not as matter of set-off, under our defalcation act, but as an equitable defence pro tanto, springing from failure of consideration.

The tendency of modern decisions, particularly in this state, has been to avoid circuity of action, by referring every subject connected with the principal matter of dispute, to the decision of the same jury. With this view, the early construction of our statute of set-off was very liberal and enlarged, and this has been followed up by adjudications very much extending the circle of claims and demands, recognised as constituting legitimate defences, by way of defalcation. But as set-off necessarily flows from contract, it was at an early day settled that an injury flowing from an independent tort, could not be averred in defalcation of a demand founded on contract, nor as a substantive defence, commensurate with the injury inflicted on the defendant. This was the determination in Kachlein v. Ralston, 1 Yeates 571, and Dunlop's Lessee v. Spear, 3 Bin. 169, in each of which instances the defendant proposed a distinct tortious act, committed by the plaintiff, but unconnected with his cause of action, as an answer to it. But this was not permitted, because it was neither a set-off, nor an answer to the plaintiff's cause of action, but a fact, in its nature, quite distinct from it, and in no way touching the consideration of the contract sued on. The defendant was therefore turned round to the action ex delicto. The same question arose in 5 Ser. & R. 117, Gogel v. Jacoby, where an independent misfeasance was set up as an answer to an action for goods sold and delivered, and the decision was to the same effect. But it was there conceded, by the court, that a defendant may be permitted to give evidence of acts of nonfeasance or misfeasance, by the plaintiff, where those are immediately connected with the cause of action; and now, by a series of decisions, it is settled that where the tort complained of, springs from the same transaction, and by impeaching the consideration of the contract sued on, meets and repels the plaintiff's allegations, in whole or in part, it may be made available as an equitable defence, total or partial. The usual illustration of this principle is afforded by the action for work and labor by a carpenter, or other mechanic, in which it has ever been held the defendant may, in answer, show the work badly done, or not according to the contract of the plaintiff; for the action and defence are derived from the same transaction, and the latter goes...