
    Moore vs. Noble.
    In an action for a deceit in the sale of a horse, where the fraud is the gist of the action, if there is no evidence of a scienter, the action cannot be sustained.
    Where the complaint averred that to induce the plaintiff to purchase, the defendant falsely and fraudulently represented the horse to be worth $120, and guarantied him to be sound in all respects, and free from disease; that he was not sound, and not worth $120, but was unsound, and had a disease Well known to the defendant, at the time of the sale; Meld, that the complaint was for deceit in the sale, willfully and knowingly perpetrated by the defendant. And that these were substantive averments, on which the action was founded, and it was necessary for the plaintiff to prove them.
    
      Meld, also, that the defendant having expressly negatived any knowledge by him of the alleged unsoundness, and the plaintiff failing to prove such knowledge, the latter was not entitled to recover in an action for deceit.
    The rule in a justice’s court is the same as in all other courts—that if a material part of the plaintiff’s case is wholly unsupported by evidence, a judgment in his favor will be reversed on appeal, whether the trial is with or without a jury.
    ACTION to recover damages for a breach of warranty in the sale of a horse. It was brought before a justice of the peace in Jefferson county. The complaint was as follows: “ That on or about the month of March, 1865, the said plaintiff, at the town of Hourisfield, purchased a certain horse of the defendant, for and at the agreed price' of $120, and paid the said defendant said sum ; that said defendant, to induce the plaintiff to purchase the said horse, falsely and fraudulently represented the s.aid horse worth and of the value of $120, and guarantied the said horse to be sound in all respects, and wholly free from disease; that the said horse was not sound or free from disease, as represented by the defendant, nor was he worth or of the value of $120, but the said horse was unsound and diseased, in this, to wit: the said horse was unsound and diseased in the shoulder, and had a disease of the shoulder called swenie, which said disease was well known to the defendant at the time of the sale of the said horse to the plaintiff. Wherefore,” &c.
    The answer was a general denial.
    The plaintiff claimed that the complaint set forth a cause of action for breach of warranty, and that it was unnecessary to prove the allegations of deceit. The action was tried before the justice and a jury. Ho scienter was proved on the trial. The jury found a verdict in favor of the plaintiff for $30, and from the judgment rendered thereon the defendant appealed to the county court of Jefferson county, which court affirmed the judgment of the justice, and the defendant appealed to this court.
    
      Reynolds & O’Brien, for the appellant.
    
      Moore & McCartin, for the respondent.
   By the Qourt, Bacon, J.

If the action, in this case, had been simply for a breach of warranty, it is possible the judgment might be upheld, although the evidence is far from being very satisfactory, either that an unsoundness existed at the time of the sale of the mare, or that. the plaintiff relied upon, and bought upon, the faith of the alleged representations of the defendant. And in this respect it would be immaterial whether the defendant did or did not know of the unsoundness, prior to the sale; because upon an absolute warranty it is unnecessary to allege a scienter, and upon such a representation a party is bound to accountability for an unsoundness, whether he knew it or not. (Case v. Boughton, 11 Wend. 106.)

But in an action for a deceit in a sale, where the fraud is the gist of the action, the rule is otherwise. In' such a case, if there is no evidence of a scienter, the action cannot be sustained. It may not be necessary, in all cases, to aver knowledge on the part of the defendant, of the falsity of the representations, and in the case of Thomas v. Beebe (25 N. Y. Rep. 244) it is held that an averment that the defendant “falsely and fraudulently represented,” is a sufficient statement of the scienter. That the complaint in this case is for deceit in the sale, willfully and knowingly perpetrated by the defendant, is manifest. To give it any other construction would be to violate all the rules of language and of pleading. It avers that to induce the plaintiff to purchase, the defendant falsely and fraudulently represented the horse to be worth $120, and guaranteed him to be sound in all respects, and free from disease; that he was not sound, and not worth $120, but was unsound and had a disease well known to the defendant at the time of the sale. These are substantive averments on which the action is founded, and it was necessary to prove them; and the rule in a justice’s court is the same as in all other courts, that if a material part of the plaintiff’s case is wholly unsupported by evidence, a judgment in his favor will be reversed on appeal, whether the trial is with or without a jury. (Tifft v. Tifft, 4 Denio, 175.)

In this case there was an utter failure by the plaintiff to prove that the defendant had any knowledge of the alleged unsoundness, and the defendant expressly negatived any such knowledge. Without this proof the plaintiff was not entitled to recover, in the form of action he elected to bring, and the judgment should have been reversed.

[Onondaga General Term,

April 2, 1867.

Mtjliin, J., dissenting,

wrote an opinion for affirmance, maintaining the doctrine laid down in Bennett v. Judson, (21 N. Y. Ref. 238,) and Craig v. Ward, (36 Barb. 377.)

Judgment reversed,

Morgan, Baton, Mnllin and

Foster, Justices.]  