Slack v. Bragg

• Decision Date: 09 May 1910
• Parties: SLACK v. BRAGG.
• Court: Vermont Supreme Court

76 A. 148

83 Vt. 404

SLACK

v. BRAGG.

Supreme Court of Vermont. Orange.

May 9, 1910.

Exceptions from Orange County Court; William H. Taylor, Judge.

Case for false warranty and deceit in the sale of cattle by Carlos D. Slack against Dana Bragg. There was a verdict and judgment for plaintiff, and defendant excepts. Reversed and remanded.

Plaintiff testified that one of the cows that was not fresh, as represented, was a "line back cow." Defendant testified that there was no "line back cows" among those he sold plaintiff. Subject to defendant's objection and exception, plaintiff was then permitted further to describe the "line back cow" to which he referred, and to state that he made a memorandum of breeding her in December. The memorandum, written in a small pocket memorandum book, was, "Bred line back Bragg cow. December 5, 1908," and was admitted in evidence, subject to defendant's exception, the court saying: "It is not offered as substantive evidence. It is received in connection with his testimony."

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

David S. Conant and R. M. Harvey, for plaintiff.

Darling & Wilson, for defendant.

POWERS, J. The two counts of this declaration are in case, and therefore properly joined. They follow the form given in 2 Chitty, 679, as did those in Caldbeck v. Simanton, 82 Vt. 69, 71 Atl. 881, which were held to be in the tort form. It was pointed out in that case that at an early day assumpsit and case came to be concurrent remedies for a breach of warranty in the sale of personal property, that the recognition of these remedies as concurrent led to the adoption of a form of declaration designed to enable a plaintiff to recover for a false warranty or false representation as his case might develop; that such a declaration was adopted in Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571, and that it has since been repeatedly approved; that it was said by Lord Ellenboro in Williamson v. Allison, 2 East, 446, that it was the warranty itself that deceived a buyer who relied upon it; and that it was sometimes said that the law implies deceit from the breach of the warranty. The court declared this proposition untenable, saying, among other things: "There is no plainer distinction in the law than that between breach of warranty and deceit; and the law no more implies deceit from a breach of warranty than it does from a breach of covenant for title or from the nonperformance of a contract of suretyship." This argument and the language in which it was expressed was understandingly and deliberately approved. Its logic is irresistible. But one conclusion is possible; and that is that, in order to recover in case, a plaintiff must allege and prove something more than a broken warranty. The scienter or its equivalent must be charged and established. The tort involved must be actual rather than constructive. Conscious misstatement, haphazard falsehood, intentionally passing off belief for knowledge, and fraudulent suppression of the truth are acts necessarily and essentially tortions, if actionable at all. A broken warranty, innocently made, though it deceives, is necessarily and essentially contractual only. To treat it as anything more is illogical and unwarranted. It necessarily follows that the first count of this declaration, being without an allegation of the scienter, is not sufficient to support a recovery, and to so submit the case to the jury as to allow a recovery under it was error. It also follows that the so-called double aspect declaration can no longer support a recovery unless the scienter or its equivalent be established.

At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant moved for a directed verdict on the ground of (1) variance; (2) insufficiency of the declaration; and (3) failure of proof. The plaintiff says in his brief that the only variance pointed out and passed upon by the trial court pertained to the price paid for the cattle; but the bill of exceptions shows that three grounds of variance were specified and claimed below, as follows: (a) That it was alleged in the first count that the purchase was of 13 cows and 2 heifers for $750, while the proof was that the purchase was of 13 cows, 2 heifers, and a bull, and that the price was figured at $50 for each of the cows and heifers, the bull being "thrown in." (b) That it was alleged in the second count that the purchase was of 13 cows for $689; while the proof was as just stated, (c) That it was alleged in the first count that all the cows and heifers were warranted to be fresh in December and January, while the proof was that such warranty only applied to the cows, and that the plaintiff was to "run his chances as to the heifers."

The first two grounds specify a variance in the statement of the consideration of the contract out of which the cause of action arose; the last, a variance in the false statement on which the action is predicated. Our disposition of the first count makes it unnecessary to spend any time on the variance first above specified. The count is insufficient, and, if amended, it will stand like the second so far as the allegation and proof of consideration are concerned. Nor need we consider the ground last above specified, for the allegation referred to only applies to the 13 cows, and does not cover the heifers as claimed. The common-law rule required great accuracy in the statement of the consideration of the contract on which an action was predicated. It was to be explicitly and correctly stated, and if any part of an entire consideration, or one consisting of several things, was omitted or misstated, the variance was fatal. 1 Chitty, P1. (14th Am. Ed.) *299. In declaring in assumpsit on a contract not under seal, it was necessary to state so much of it as contained the entire consideration, and the entire act or duty to be done in virtue of such consideration, the breach of which was complained of. Note to Symonds v. Carr, 1 Camp. 361; Clark v. Grey, 6 East, 564; Miles v. Steward, 8 East, 7; Curley v. Dean, 4 Conn. 259, 10 Am. Dec. 140. This rule was adopted by this court at an early day. Allen v. Lansing, 10 Vt. 114, was an action of assumpsit, alleging that the plaintiff bought of the defendant and his partners a barrel of rum for $50. The proof was that he bought it for $1.06 per gallon. The variance was held to be fatal.

In Vail v. Strong, 10 Vt. 457, the rule was applied to an action on the case for false warranty in the sale of personal property. The court said in that case that it was the result of all the authorities that whether the action was in form ex contractu or ex delicto, if the cause of action as set forth originates in a contract, the contract must be proved as laid. But this is so only in those cases wherein it is necessary to declare upon the contract as the basis of a right of recovery. This is apparent from an attentive examination of the case. The court took as an apt illustration cases arising upon a contract for the sale of horses with a warranty or representation of soundness, and pointed out how a plaintiff might declare as for a deceit, alleging a representation known to be false when made, in which case he did not rely upon the contract as a ground of recovery, and none need be so alleged or proved; or he might declare in special assumpsit on the warranty, in which case he must prove the contract precisely as laid; or he might declare in the double...