
    
      John Stockfleet v. George Fryer and William Bird.
    
    Where an action is founded on the joint contract of sale, laid in the declaration, the joint contract is essential to the joint warranty of the sale, and requires strict proof, in whatever form of action the plaintiff may sue.
    
      Before the Recorder, in the City Court of Charleston, July Term, 1847.
    This was an action on the case. The declaration alleged, in. substance, “ that the defendants agreed and undertook to sell to the plaintiff a certain canal boat, which they alleged to be the property of them, the said defendants, by reason of (which) said affirmation, he, the said John Stockfleet, was induced, and did then and there buy the said canal boat, of the said defendants, for the sum of $50. And the said plaintiff in fact says, that the said canal boat, at the time of the said affirmation, and the said plaintiff’s buying the same, was not the property of the said defendants, but that the said canal boat was the property of Thomas P. Chandler, and of right did belong and appertain to the said Thos. P. Chandler, (as they, the said defendants, well knew,) and that he, the said Thomas P. Chandler, did, on the 27th of Jan. 1847, at &c. take and carry away the said canal boat, out of and from, the hands and possession of the said John Stockfleet, as the property of him, the said Thos. P. Chandler, whereby the said plaintiff saith he is injured, and hath sustained damages, not only by having the said boat taken out of his possession, but also that he hath laid out large amounts in repairing said boat, in the whole amounting to $250, to the damage of said plaintiff $400; and therefore he brings suit.”
    The testimony offered on the part of the plaintiff was as follows. A bill and receipt, of which the following is a copy:
    Mr. JOHN STOCKFLEET,
    1846. ' To GEORGE FRYER, Dr.
    August 17. To one Canal Boat, (lying at Mr. Bird's yard) $50 00
    Received payment. (Signed) GEO. FRYER,
    W. BIRD.
    
      J R. Cook, sworn — Nays he knows a canal boat, bought from T. P. Chandler. Witness was to give $250 for her— about four or five months ago, she was in good repair — she was then in his possession — was placed there by the Sheriff, for safe keeping — Chandler gave no title.
    
      Cross-examined — Knows nothing of Bird’s selling a boat to plaintiff — cannot say the boat he speaks of is the one now in controversy. Witness delivered the boat, he was in treaty for, to Chandler in person.
    
      C. W. Brant, sworn — Said he was employed to put repairs on a canal boat — his bill was $175; the boat was worth about $300.
    
      W. W. Kunhardt, sworn — Said he called on Fryer, and informed him that the boat sold by him and Bird to Stock-fleet, had been taken away from him, as the property of Chandler, and witness required Fryer to make some arrangement. Fryer did not make any definite reply, or propose any arrangement.
    
      John H. Wilkming, sworn — Said he showed the receipt to Fryer, and informed him that the boat had been sold by the Sheriff. Witness asked Fryer how he could sell a boat which did not belong to him. Fryer replied, he could not help it.
    BY CONSENT,
    
      William Bird, one of the defendants,
    was examined, on oath. He said he never purchased this boat from Chandler —he believed the boat to be Fryer’s — witness had no interest in it — witness never acquiesced in the boat’s being taken away from the plaintiff. The boat had been placed in his hands by Fryer, for repair; that he had put repairs upon her to the amount of $52, and his bill being unpaid, under Fryer’s directions, and at his request, he sold the boat to plaintiff, and signed the receipt as agent of Fryer, and by his authority. The purchase money was applied to payment of his bill.
    Here the testimony closed, and the defendant’s counsel moved for a non-suit on various grounds, now renewed in his motion of appeal. The Presiding Judge says: I refused the motion. Although, in my judgment, (considering the cause of action, as set forth in the declaration, either formally as an action on the case for deceit — or informally, as an action on the warranty of title,) there was not sufficient evidence to warrant a verdict, yet as there was some evidence to go to the jury, I preferred the case should be submitted to them, under proper instructions from the Court, as to the law and the evidence.
    The case was argued by the counsel to the jury, and was submitted to their decision. I instructed the jury that, regarding the present action as one of deceit, it was incumbent on the plaintiff, when he charged'a joint sale by two defendants, and a fraudulent representation or deceit practiced by them upon such sale, to prove the joint sale as alleged, as a necessary preliminary to his right to recover. That, having established the joint sale, it was not enough, in this form of action, to rely upon the implied warranty of title, which the law raises upon the sale of personal property, or upon proof of an express warranty of title, but it was necessary to go farther, and show, by evidence, that the vender or venders knew that they had no title, and knowingly and intentionally committed a fraud in the sale, upon the purchaser. That, in this view of the case, it appeared to me, both with regard to Mr. Bird and as to Fryer, there was no evidence of the scienter alleged in the declaration to warrant a verdict against them or either of them. That, in regard to the sale and written receipt for the boat, if they believed the testimony of Mr. Bird, that the boat belonged to Fryer alone, that he acted only as the agent of Fryer, and, as such, signed the receipt, it could not be considered as a joint sale, and plaintiff could not be entitled to recover in this action against either. I further stated that, if the action were to be considered as an action on an express or implied warranty of title, it- appeared to me there was no competent or satisfactory proof that the warranty was broken, by title in any other person, or that the plaintiff had been divested either of his title or possession by any just claim or legal authority. I commented strongly upon the vague, indefinite, and entirely uncertain evidence offered by the plaintiff,to sustain his case, in any point of view of his supposed legal rights, and felt no doubt the jury would find for the defendants. They however found a verdict for the plaintiff, against Fryer, for $250 damages, and of not guilty as to Bird. In support of the position that, in an action of deceit on a warranty, upon a joint sale by two defendants, such sale must be proved as alleged, to warrant a verdict, I refer to the following authorities. In Weale v. King, 12 East, 452, Lord Ellen-borough held., even in case for deceit, on a-warranty, where' it arose in a joint sale of sheep by two, as their joint property, that the joint interest and joint sale of both, being described as the foundation of the joint warranty, was essential, and must be proved as laid'. See the same principle recognized and other authorities cited, in our own Court, in the case of Patton et al. v. Magrath et al., Rice's Rep. 162. Supposing the allegation of a joint sale in this case to be unsustained or negatived by the verdict against one defendant only, I should have no hesitation, if the case were now presented to me, to grant a non-suit, or, if it pertained to this Court, to arrest the judgment.
    The motion for a non-suit, on behalf of George Fryer, was renewed, on the grounds—
    1. That there was no proof of the scienter, nor of fraud or deceit, in the defendants, or either of them.
    2. That there was no proof of the false representation and deceitful sale, alleged in the declaration, but on the contrary, express disproof of the same, by the plaintiff’s own witness, Mr. Bird — the allegation being of an affirmation of joint property in defendants, and of a joint sale by them of the boat In question, as their joint property, when the plaintiff’s own proof was, that there was no such representation and no such sale, but a sale only by Bird as Fryer’s agent, and as of Fryer’s exclusive property.
    3. That there was no proof of any legal ouster of plaintiff, from possession of the boat, but only of a voluntary surrender thereof by him, without notice to defendants, or either of them, to defend their or his title.
    A motion for a new trial was also made on the foregoing grounds, and on the additional ground -that the verdict was without evidence, and against law and evidence, and for excessive damages.
    A motion was also made in arrest of judgment, on the grounds—
    That neither fraud nor deceit are charged in the declaration against the defendants, or either of them; and that there is no sufficient allegation of special damage.
    Yeadon &. Macbeth, for the motion.
    Kunhardt, contra.
    
   Frost, J.

delivered the opinion of the Court.

The action is founded on the joint contract of sale, laid in the declaration. The joiut contract is essential to the joint warranty of the sale of the boat; and requires strict proof, in whatever form of action the plaintiff may sue. In Patton et al. v. Magrath et al., Rice’s Rep. 162, it was held that when the liability of the defendants is created or arises out of a joint contract, whether the declaration be in assumpsit or in case ex quasi contractu, the result will be the same, and the general and well settled rules of pleading and evidence will apply. The plaintiff must sue all the joint contracting parties, or the defendants may plead in abatement. He must sue, in the same actions, only the joint contracting parties, or he will fail at the trial. That decision is supported by Powell v. Layton, and Max v. Roberts, 2 Bos. and Pull. N. R. and Neal v. Jones, 12 Bast, which have since been followed in the English Courts.—1 Chit. Plead. 86.

The evidence not only fails to establish the joint sale by the defendants, but directly contradicts the fact. The verdict of the jury, which finds Fryer guilty and Bird not guilty, is conclusive. On the record, then, it is manifest that the plaintiff has no cause of action, and a non-suit is granted.

Richardson, J. O’Neall, J. Evans, J. and Wardlaw, J. concurred.

Withers, J. absent, from indisposition.

Motion granted>  