
    William J. Taylor v. Joseph J. Frost.
    1. Sale: deceit: scienter must be proven : warranty otherwise.— In an action of deceit in the sale of a chattel, it is necessary for the plaintiff to show that the defendant knew the falsity of the representations he made in respect to its quality: it is otherwise where the action is for a false warranty.
    Error to the Circuit Court of Madison county. Hon. E. G. Henry, judge.
    
      A. JP. Hill, for plaintiff in error.
    The allegations are, that false and fraudulent representations were made by defendant to plaintiff in the exchange of horses, on which plaintiff relied; the scienter on his part is alleged, and that issue we supposed we were trying. Yet the court, by its first and second instruction, especially the second, instructed the jury to find for plaintiff, even if defendant believed the representations to be true; in other words that, in an action of deceit, alleging false and fraudulent representations, the jury could find defendant guilty, although he' made innocent representations. The action of deceit cannot be converted on the trial, by instructions, to an action for breach of warranty, and especially under our system of pleading, where the cause of complaint must be set down in plain language, and the subsequent pleadings conform to the case made by tbe narration.
    Tbe third instruction asked by defendant below raised tbe true issue for tbe jury under tbe state of the pleadings, and its refusal was error; and a like error was committed by tbe court in granting plaintiff’s instructions.
    
      Luclcett and Fearn, for defendant in error,
    Contended that this was an action for a false warranty, and tbat tbe representations were such as in law amounted to a warranty. See Otts v. Alderson, 16 S. & M. 476; Barnett v. Stanton & Pollard, 2 Aid. 181.
   Handy, J.,

delivered tbe opinion of tbe court:

This was an action on tbe ease, in tbe nature of deceit in tbe sale of a borse by tbe plaintiff in error to tbe defendant in error with representations as to tbe qualities of tbe horse by tbe plaintiff which were known by bim to be false.

On tbe trial of tbe cause, tbe evidence left it a matter of doubt whether or not tbe plaintiff in error lenew tbat tbe representations made by him at tbe time of tbe sale were untrue, and tbat tbe borse was not of tbe qualities then represented. By tbe second instruction given at tbe instance of the defendant in error (tbe plaintiff below) tbe court instructed tbe jury, in substance, tbat if they believed, from tbe evidence, tbat tbe borse bad not tbe qualities represented by tbe plaintiff! in error, they should find against bim, although they should be satisfied tbat be believed tbat tbe borse bad tbe qualities represented by bim. Tbe same principle is stated in tbe third instruction at tbe instance of the defendant in error. And tbe court refused tbe third instruction asked in behalf of tbe plaintiff in error, to tbe effect, that be was not responsible in this action, unless tbe jury believed from tbe evidence tbat be lenew tbe representations to be false.

It is material to observe tbat this action is in form purely for deceit. It does not count on a warranty, but alleges representations as to the qualities of tbe borse, and avers tbat they were known by tbe plaintiff in error to be false at the time be made them. These representations are not alleged to be a warranty nor the ground of the action, nor does the declaration treat them as a warranty. They are treated merely as a part of the fraud and deceit which is stated as the ground of the action. If the action had been brought on the ground of warranty, there would have been no necessity for averring the scienter, and, if averred, it would not have been necessary to prove it; because, if the warranty had not been true, the party would have been liable whether he knew it or not. The court appears to have regarded the action as founded on breach of warranty; and, had it been an action of that nature, the rulings would have been correct. But, in form and in legal effect, it is an action for deceit. It avers no warranty; but sets forth false and fraudulent representations, averring the scienter, and concludes that, “by means of these false, fraudulent and deceitful representations, the defendant in error was induced to make the purchase, and thereby sustained the damage complained of. From this it is clear that the declaration does not treat the representations as a warranty, and that it is founded on the party’s hnowledge that the representations were false, which would have been unnecessary if the purchaser had understood them to be a warranty. In such an action, the gravamen of it is the deceit, and the gist of it the scienter. The notice of the action attached to the writ is to the same intent. It is that the “complaint is to recover damages four hundred dollars, sustained by plaintiff in swapping a horse, by which trade the defendant deceived and defrauded the plaintiff.” To such an action the defendant was only called on to respond to the deceit, and, if he showed a want of knowledge of the defects of the horse, it was a sufficient answer, and he was not liable in the action; or rather it was incumbent on the plaintiff to show such knowledge.

These principles are well recognized in the text-books, and have been sanctioned by this court. 1 Selw. N. P. 644, (7th Am. ed.,) McLeod v. Tutt, 1 How. 288.

The judgment is reversed, and the cause remanded for a new trial.  