
    *Trice v. Cockran.
    January Term, 1852,
    Richmond.
    [56 Am. Dec. 151.]
    (Absent Cabell., J.)
    1. Pleading and Practice — Sale of Chattels — Breach of Warranty of Soundness — Case.—Case is a proper remedy for the breach of an express warranty of soundness of a slave or other personal chattel sold.
    2. Same — Same—Same—Scienter.—In case for the breach of a warranty of soundness of a personal chattel, it is not necessary to allege the defendant’s knowledge of the unsoundness: And if it is alleged, it is not necessary to prove it.
    B. F. Cockran instituted an action upon the case against George W. Trice, in the Hustings court of the city of Richmond, and filed a declaration containing two counts. The first count charged that the defendant falsely and fraudulently induced the plaintiff to purchase of him a slave, ‘‘by then and there falsely and fraudulently warranting the said slave to be sound,” when in fact the said slave was unsound, and died of the disease then upon him, and that the plaintiff had sustained damage to the amount of 500 dollars, for medical attendance, &c., and concludes with an averment in the following words: “And so the plaintiff saith, that the said defendant falsely and fraudulently deceived him, the said plaintiff, in the sale of the said slave as aforesaid.”
    The second count charges, that the defendant being possessed of the slave, and well knowing that he was unsound, “did nevertheless falsely, fraudulently and deceitfully, then and there, represent the said last mentioned slave to be sound, and did, then and there, by means of the said false, fraudulent and deceitful representations, induce the said plaintiff to buy the said *slave of the said defendant.” It then charges the unsoundness of the slave, and his consequent death and damage to the plaintiff.
    To this declaration the defendant demurred generally, and pleaded ‘ ‘ not guilty, ’ ’ and there was joinder in the demurrer and issue on the plea. The Court overruled the demurrer, and the case was tried upon the plea.
    Upon the trial the plaintiff offered evidence of the unsoundness of the slave and his death, and exhibited and proved a bill of sale for him under seal, by the defendant, containing a warranty of the soundness.
    The defendant offered evidence to prove that the slave was placed by the defendant in the hands of an auctioneer in Richmond to be sold, and that at the time he so placed him with the auctioneer, the defendant told him that he had been sold before he became the property of the defendant, and was returned by the purchaser because he was believed to be unsound, and that he, the auctioneer, must not sell him to any one without making that fact known to him; that the slave remained for some time at the auction house in Richmond, where he was seen by all the dealers, and among them the plaintiff, and finally he was exposed to public sale, proclamation being made by the auctioneer that a doubt was entertained of his soundness, but he would warrant him sound, and if the purchaser did not.like him he might return him; that at this sale (made in the absence of the defendant, who was in the country, the sale being made in Richmond), the plaintiff became the purchaser of him at 470 dollars. This was in July.
    The plaintiff, after the purchase and a full statement by the auctioneer of all that the defendant had told him as to the former sale of the slave and the return of him, declined to keep him, and returned him; and the slave remained at the auction house, where the plaintiff frequently saw him, until the 12th of September, when *the plaintiff proposed to the auctioneer to sell him again, saying, that if he would do so, and warrant him sound, he, the plaintiff, would bid 400 dollars for him; that accordingly the auctioneer did put him up to sale again, and, in the absence of the defendant, warranted him sound, and the plaintiff purchased him at a single bid of 400 dollars, took possession of him, gave a note at ninety days for the purchase money, which he paid at maturity, and shipped the slave to the south.
    The bill of sale was partly printed and partly written. The warranty was printed. It was in blank as to the price and name of the purchaser when left with the auctioneer, and he filled up the blanks.
    It was also proved by the auctioneer that the slave was sold for less than the price of a sound slave; that if sound he would have commanded at least 550 dollars, which price was offered for him by another purchaser, but was withdrawn when the auctioneer communicated to him what the defendant had directed him to communicate to all purchasers before he sold him.
    Upon this proof the defendant by his counsel asked the Court to instruct the jury, “that to entitle the plaintiff to recover, they must be satisfied from the evidence that the slave was unsound at the time of the sale to the plaintiff, and the defendant knew of the unsoundness, and fraudulently concealed it, or falsely and fraudulently represented him to be sound; and the plaintiff is not entitled to recover by the force of the warranty merely, if one was made:” which instruction the Court gave.
    The plaintiff then asked the Court to instruct the jury, that he was entitled to recover upon the first count, if he proved to their satisfaction the unsoundness at the time of the sale, and an express warranty; which instruction the Court refused to give.
    The plaintiff excepted and spread the whole testimony upon the record.
    *The jury found for the defendant, and judgment was rendered accordingly. Thereupon the plaintiff applied to the Circuit court for a supersedeas, which was awarded: And when the cause was heard in that Court, the judgment of the Hustings court was reversed, and the cause remanded with instructions, that at any ■future trial of the cause, in case such question should arise as at the former trial, not to give the instruction it then gave at the instance of the defendant, but to give that which was moved by the plaintiff. To this judgment Trice obtained a supersedeas from this Court.
    Byons, for the appellant.
    1st. The action was case for the fraudulent representations charged in the declaration, and the fraud was therefore the gist of the action, without proof of which the plaintiff was not entitled to recover. Bay-ard v. Malcolm, 1 John. R. 452.
    The declaration plainly shews this, and the issue found in the cause does also. That issue was upon the plea of not guilty. If the action had been upon the warranty, it would have been assumpsit and not case, and the plea would have been non assump-sit. 1 Chitt. Pi. 106; Stuart v. Wilkins, Doug. R. 18; Saund. Plead, and Evi. 913; Bangridge v. Bevy, 2 Mees. & Welsb. 519; S. C. 4 Id. 337.
    2d. The action could not have been upon the warranty, because the warranty was under seal, and covenant and not case was the proper action upon it. 1 Chitt. PI. 118. That the auctioneer, if he had authority to warrant, might under his parol authority to warrant, fill up the blanks in the bill of sale, is abundantly proved by the cases of Texira v. Evans, cited Anstr. R. 229; Zouch v. Claye, 2 Bevintz. R. 35; Speake v. United States, 9 Cranch’s R. 28; Smith v. Crooker, 5 Mass. R. 538; Woolley v. Constant, 4 John. R. 54; Knapp v. Maltby, 13 Wend. R. 587; Wiley v. Moor, 17 Serg. & Rawle 438.
    *3d. Because if the first count in the declaration was to be considered against its frame as a count on the warranty, because the term warrant is used, although it is not charged that the defendant assumed or promised any thing, but only that he made false, fraudulent and deceitful representations and warranty, and so deceived the plaintiff; then there was a misjoinder of actions, because case and assumpsit cannot be joined in the same declaration, and the demurrer to the declaration should have been sustained. 1 Chitt. PI. 201; Corbit v. Packington, 13 Eng. C. B. R. 170; Wilson v. Marcy, 1 John. R. 503.
    So incompatible are the two forms of action, that in assumpsit upon the warranty, evidence of fraud is not admissible. Evertson’s ex’ors v. Miles, 6 John. R. 138.
    The plaintiff might have sued upon his warranty, or he might sue as he did for the imputed fraud; but he must sue for one or the other, and not for both. If there had been a warranty by parol, assumpsit might have been maintained, but if under seal, as here it was, if there was any, covenant only could be maintained, or case for the deceit, and therefore, in a suit not founded upon the warranty, because not in covenant, it was perfectly right to instruct the jury that the plaintiff must prove the imputed fraud, or fail, and could not recover on the warranty. To determine otherwise would be to declare that a covenant is evidence in case or assumpsit, and recovery may be had for breach of .covenant, by action on the case, and that without averring the existence of any covenant.
    But the evidence shews clearly that there was no warranty obligatory upon the appellant, because it was proved distinctly, that he ordered his agent not to sell the slave without making known his defects; that the agent did so, and the purchaser had full notice of every thing in respect to the soundness of the slave prior to *the purchase of him by the appellant, and the warranty could not properly be held, therefore, to apply to any unsoundness existing prior to that purchase, but must be construed, like a warranty of soundness where there is a visible defect, as not covering that defect. If the slave had been seised with small-pox or measles, or some other disease which impaired his value, so soon after the sale as to shew that he.contracted it before the purchase by the appellant,. such defect might have been covered by the warranty. Bayley v. Merrill, Cro. Jac. 386; Dyer v. Hargrave, 10 Ves. R. 507; Buller, N. P. 31.
    The error of the Circuit court was occasioned by relying upon and misapplying the case in 2 East. That case affirms, that in case on the warranty, the scienter, if laid, need not be proved. Bet that be admitted, and yet the authority does not rule this case; for this is not a suit on the warranty, as already shewn. This case is like that of Dowding v. Mortimer, decided by Bord Kenyon, and admitted in 2 East to be law. The gravamen is the deceit.
    The instruction asked for by the counsel for the appellee shews that the instruction given was correct, for by it he limits his right to recover to the first count, and to the warranty, shewing that unless entitled to recover on the warranty, he could not recover at all; and not being entitled to recover in case upon a warranty in covenant, it followed necessarily that he could not recover at all in this suit.
    R. T. Daniel, for the appellee.
    The instructions asked and refused were relevant to the evidence which presented to the jury the questions of fact, Was the slave unsound when sold? Had there been a warranty; or had there been a false representation or concealment of that unsoundness if it existed?
    *The effect of the instruction given was that under the declaration, there could be no recovery unless the plaintiff established a fraud in the sale; that even if he proved an express warranty of soundness, and unsoundness at the date of the warranty, he could not recover.
    The declaration is in case, and the first count is in the common form of declaring in case for a breach of warranty, whilst the second count is in the common form of declaring where deceit is alleged, and "is expected to be proved, that is, where the scienter of unsoundness is alleged and expected to be proved. 2 Chitt. PI. 277, 278. It has been decided long since that case may be maintained upon a warranty; and that it is not necessary to allege the scienter: or if it is alleged it need not be proved. Williamson v. Allison, 2 East’s E. 446. If therefore the jury were satisfied that there was a warranty of the slave, and that he was unsound, the plaintiff was entitled to recover on the first count of the declaration. But the instruction given by the Hustings court, forbade his recovery in that case.
    The question whether the warranty was not by a covenant, was not made in the Hustings court, and therefore cannot be raised or considered here. Newsum v. Newsum, 1 Leigh 86; Barrett v. Wills, 4 Id. 114. If the defendant below had intended to rely on the ground that the action should have been covenant, he should have moved to exclude the paper when it was offered in evidence to the jury.
    But the bill of sale having been in blank when it was left by the appellant with the auctioneer, and having been filled up without the proper legal authority, was of no validity. United States v. Nelson & Myers, 2 Brock. R. 64, in which the cases cited on the other side are reviewed; McKee v. Hicks, 2 Dev. R. 379; Davenport v. Sleight, 2 Dev. & Bat. 381; Cleaton v. Chambliss, 6 Rand. 86.
    
      
      Pleading and Practice — Sale—Action for Breach of Warranty — Scienter.—In Shippen v. Bowen, 7 Sup. Ct. Rep. 1283, 122 U. S. 575, it is said: “In Schuchardt v. Allens, 1 wall. 359, 368, which was an action on the case for a false warranty on the sale of certain goods, — the declaration also containing a count for deceit, — the court said that it was now well settled, both in English and American jurisprudence, that either case or assumpsit would lie for a false warranty, and that, ‘whether the declaration be in as-sumpsit or tort, it need not aver a scienter; and, if the averment be made, it need not be proved.’ Itwas also said that, ‘if the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty oí for the deceit, according to the proof. Either will sustain the action.’ See also, Dushane v. Benedict, 120 U. S. 636, ante, 696. In 1 Chit. Pl. 137, the author says that case or assumpsit may be supported for a false warranty on the sale of goods, and that, ‘in an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the declaration, nor, if charged, could it be proved. ’ In Lassiter v. Ward, 11 Ired. 444, Roffin, C. J., citing Stuart v. Wilkins, 1 Doug. 18, and Williamson v. Allison, 2 East 446, said: ‘It was accordingly there held that the declaration might be in tort, without alleging a scienter, and, if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is that, when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged pr proved. It is nearly a half century since the decision, and durlng that period the point has been considered at rest, and many actions have been brought in tort as well as ex contractu on ialse warranties.’ And so in House v. Fort, 4 Blackf. 293, 294, it was said that ‘the breach of an express warranty is of itself a valid ground of action, whether the suit be founded on tort or on contract; and that, ‘in the action on tort, the forms of the declaration are that the defendant falsely and fraudulently warranted, etc., but the words falsely and fraudulently, in such cases, are considered as only matters of form.' But as to the scienter the court said, ‘that is not necessary to be laid, when there is a warranty, though the action be in tort; or, if the scienter be laid, in such a case there is no necessity of proving it’ See also, Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Har. & G. 495, 520: Trice v. Cockran, 8 Gratt. 450; Gresham v. Postan, 2 Car. & P. 540.”
      Instructions. — In Southern Express Co. v. McVeigh, 20 Gratt. 293, it is said: “A party moving an instruction ought to lay his finger on the point. Baldwin, J., in Trice v. Cockran, 8 Gratt. 450.
      
    
   *BALDWIN, J.,

delivered the opinion of the Court.

In this case the instruction given at the trial, on the motion of the defendant, was not in reference to the form of the action or the form of the evidence of warranty. The defendant did not assert or concede that there was a warranty by deed or any warranty at all. On the contrary, his own evidence presented the question, whether the bill of sale for the slave, executed by the defendant, before the sale, and in blank as to the name of the vendee and other particulars, and left with his agent in that condition, to be filled up by the latter after a sale should be made by him for the defendant, and so filled up by the agent, without any authority from the defendant by deed, or any other authority than as above mentioned, was in point of law the deed of the defendant. And also the further question, whether the verbal authority to the agent to fill up the blanks in the bill of sale still existed at the time therein mentioned, or had been exhausted by a prior sale by the agent to the plaintiff, which was rescinded by agreement between them, without consultation with the defendant. And if the bill of sale was not upon either ground the deed of the defendant, or whether it was so or not, still an ulterior question was presented by the evidence, whether the plaintiff could avail himself of a parol warranty of soundness made by the agent at his last sale aforesaid.

The instruction given for the defendant was not upon any of those points. The Court was not called upon to say to the jury that if they believed the evidence the verbal authority from the defendant to his agent to fill up the blanks in the bill of sale was sufficient in law, or that it was not exhausted by the first sale made by the agent, or that the bill of sale was the deed of the defendant, or that covenant and not case was the plaintiff’s only remedy, unless there was actual fraud in the sale of the slave, or that the plaintiff could not '^recover upon the parol warranty made by the agent. But the broad instruction given to the jury was in effect that whether the warranty was by deed or by parol, the plaintiff could not recover upon either count of his declaration, without proving moreover, not only that the slave was unsound at the time of the sale, but that the defendant knew of the unsoundness, and fraudulently concealed it, or falsely and fraudulently represented the slave to be sound. This instruction was clearly wrong, in regard to the first count of the declaration, which was not founded upon actual fraud, but upon a mere warranty only.

The action of trespass on the case, is a proper remedy for the breach of an express warranty of soundness of a slave, or other personal chattel sold, as much so as the action of assumpsit, with which it is a concurrent remedy, and the party aggrieved may elect between them. In both forms of action, the gravamen is the breach of the warranty, which in the former is treated as a tort, with the appropriate language in declaring for a tort, but a scienter or knowledge of the defendant of unsoundness is immaterial, and need not be alleged in the declaration, nor if alleged need it be proved. This is the firmly established doctrine of the Courts, both in England and in this country, ever since its adjudication in Williamson v. Allison, 2 East’s R. 446. It seems however that the directly opposite proposition was asserted by the defendant, and that it was contended on his part at the trial, that in case upon an express warranty actual fraud is the gist of the action, and must be established, though a breach of the warranty be proved.

It is true that upon the second count of the declaration actual fraud, which involved the scienter of the defendant, was essential to the plaintiff’s recovery; that count not being founded upon the warranty, but upon a fraudulent concealment or misrepresentation of unsoundness: *but in the first count a scienter of the unsoundness is not even alleged, and the substantial grievance complained of is, that the plaintiff was deceived and injured by the falseness or wrongfulness of the warranty itself. Upon the second count the plaintiff was entitled to recover on proof of actual fraud, whether the warranty was by deed or by parol: And upon the first count, the defendant seems to have silently waived the question whether the warranty was by deed or by parol. This it was competent for him to do, and if a verdict had been rendered for the plaintiff on that count and a new trial asked for, it could not have been properly granted on the ground that the warranty was by deed.

This Court cannot undertake to say that the instruction given for the defendant was correct, because the warranty was not by parol but by deed? The bill of exceptions cannot be treated as a demurrer to evidence, and a point raised which was not asserted in the motion for instruction to the jury. There was evidence before the jury tending to prove a warranty by parol as well as by deed, and it would be improper to infer the correctness of the broad proposition as applicable to the sale, that actual fraud was necessary to maintain the action, by inference from a narrower proposition not asserted, that the warranty was by deed and not by parol, and therefore that in the absence of actual fraud the proper remedy was in covenant and not in case. A party moving an instruction ought to lay his finger upon the very point, and not leave the correctness of his proposition upon the silent assumption of another proposition unas-serted though presented by the evidence. Such a practice might tend to surprise the Court and mislead the jury. In this case the jury might have inferred, and most probably did infer, from the instruction given, that the only question for their consideration was whether actual fraud was proved b3 the evidence.

seems therefore to the Court, that the instruction given to the jury by the Hustings court, was erroneous, and that its judgment was therefore correctly reversed by the Circuit court.

But it further seems to the Court, that the Circuit court erred in its direction that upon the new trial to be had, the instruction moved by the plaintiff and rejected by the Hustings court should be given to the jury, which direction must be treated as part of the judgment of the Circuit court. The instruction so directed, in effect assumes that whether the warranty was by deed or by parol, the plaintiff is entitled to recover without proof of actual fraud on the part of the defendant.

Both judgments reversed with costs, and case remanded for a new trial upon the evidence which may be adduced by the parties; and such proper instructions as the Court may thereupon give to the jury.

Judgment reversed. 
      The principal case is cited in Boyles v. Overby, 11 Gratt. 205.
     