
    The Executors of Nicholas Evertson against James Miles.
    NEW-YORK,
    May, 1810.
    
      Jlsmmpsit is the action1 f°where ranty ^express' ed or implied, m the sale of chattels; but tiffeground?ah!s o^fraud1 in” the ^breach of°contract, the deceit or fraud must be substantively alduration, other-fraud!”admissiMe*
    IN error, from the court of common pleas, of Dutchess county. The plaintiffs, as executors of Evertson, brought an action of assumpsit, on a breach of warranty, on the saie 0f a horse, to the testator. The declaration contained four counts.
    1. For that whereas, on the 20th day of September, in the year 1806, at Poughkeepsie, &c. in consideration, that t^le sa^ Nicholas, in his life-time, at the special instance an¿ request of the said "fames, would buy of the said * James, a certain gelding of him the said James, at and for a large price or sum of money, to wit, for the price of 187 dollars and 50 cents of lawful money, &c. to be paid by the said Nicholas, in his life-time, for the same, to the said James, he the said James, then and there, undertook, and faithfully promised the said Nicholas, in his life-time, that the said gelding was tame and gentle in harness, and was no more than seven years of age, the spring then next preceding; and the plaintiffs in fact say, that he, the said Nicholas, in his life-time, confiding in the said promise and undertaking of him. the said James, so by him made as aforesaid, afterwards, to wit,' on the day and year aforesaid, at the place aforesaid, and within the jurisdiction aforesaid, at the special instance and request of him the said James, did buy of him the said James, the said gelding, at and for the said price of 187 dollars and 50 cents ; and then and there paid him the said sum of money for the same. Yet the said James, not regarding his said promise and undertaking, so by him made as aforesaid ; but contriving and fraudulently intending to injure the said Nicholas, in his life-time, in this behalf, did not regard his said promise and undertaking, so by him made as aforesaid, but craftily and subtly deceived the said Nicholas in his life-time, in this, that the said gelding, at the time of making the said promise and undertaking of the said James, was not tame and gentle in harness, and was older than seven years the then last spring, to wit, was, and still is frac,tious, and unmanageable in harness, and was, the then last spring, ten years old, at least, to wit, at the place and within the jurisdiction aforesaid, whereby the said gelding, then and there became, was, and still is, of no value.
    2. And for that whereas, also, afterwards, to wit, on the same day and year aforesaid, at the place, &c. in consideration that the said Nicholas, in his life-time, would buy of the said James, other a certain gelding, at and for a large price, or sum of money, to wit, the price of 187 dollars and 50 cents, of lawful money, of the United States of America, to be paid by the said Nicholas, in his life-time, for the same, to the said James, he the said 
      James then and there undertook, and faithfully promised, the said Nicholas, that the said last-mentioned gelding was no more than eight years old the then last spring, &c.
    3. And for that whereas, also, afterwards, to wit, on the same day and year aforesaid, at, &c. in consideration, that the said Nicholas, in his life-time, at the special instance and request of the said James, had before that time bought of the said James, a certain other gelding of him the said James, at and for a large price or sum of money, to wit, the price of 18/ dollars and 50 cents, lawful money, &c. he the said James, then and there undertook, and faithfully promised the said Nicholas, in his life-time, that the said last-mentioned gelding was tame and gentle in harness, and was no more than seven years old, the then last spring. And the said plaintiffs in fact say, that the said James, not regarding his said promise and undertaking, so by him made as aforesaid ; but contriving and fraudulently intending to injure the said Nicholas, in his life-time, in this behalf, did not regard his said promise, but craftily and subtly deceived the said Nicholas, in his life-time, in this ; that the said last-mentioned gelding, at the time of the making the last-mentioned promise and undertaking of the said James, was not tame and gentle in harness, and was older than seven years, the then last spring, to wit, was, and still is, fractious and unmanageable in harness ; and was, the then last spring, ten years old, at least, to wit, ■at the place, and within the jurisdiction aforesaid; whereby the said gelding, then and there became, and was, and is, of no use or value.
    (4. The fourth count was for money paid, money lent, and money had and received, &c.) Nevertheless, the said James, his promises and assumptions aforesaid, in form aforesaid made, not in the least regarding, the said last-mentioned sum of money, to the said Nicholas, in his life-time, or to the said plaintiffs since his death, hath not paid; (though often requested, &c. by the said Nicholas, in his life-time, and the said plaintiffs, since his death;) but the same, to the said Nicholas, in his life time, to pay, the said James always refused; and the same to the said plaintiffs, since his death, hath hitherto wholly refused, and still doth refuse, to the plaintiffs’ damage of 300 dollars, and, therefore, they bring suit, &c.
    The defendant pleaded non assumpsit. At the trial, a witness for the plaintiffs testified, that in 1806, as agent of the testator, he purchased a certain horse of the defendant, for the sum of 187 dollars and 50 cents, and that the defendant represented the horse to be only seven years old, and good and gentle in harness, &c. The counsel for the plaintiffs, then offered to call a witness to prove the horse was not of the age represented by the defendant, nor good and gentle in harness ; and that the defendant at the time he made the representation, knew the same to be false : this was objected to by the defendant’s counsel, and the evidence was overuled by the court below, as inadmissible ; and the court decided that the plaintiffs must show an express warranty, otherwise they could not recover on their declaration, and the plaintiffs were called and nonsuited. A bill of exceptions was tendered to the decision of the court, on which a writ of error was brought.
    The cause was submitted to the court without argument.
   Vast Ness, J.

The decision of the court below was correct. The declaration was agreeable to the precedent in Stuart v. Wilkins ; (Doug. 10.) and that applies when ■the plaintiff sues for a breach of a warranty ; and it is the modern mode of declaring on a warranty, instead of the ancient form of warrantizando vendidit. But when the plaintiff does not go for a breach of contract, but grounds his action on deceit and fraud in the sale, the fraud must be averred and charged, as a substantive allegation. To admit the proof of it, without such averment, would be going wide of the issue, and taking the party by surprise. To justify the proof offered, it ought to have been charged, that the defendant falsely and fraudulently represented the horse to be gentle, &c. and that he knew him to be vitious, &c. There is no case which permits a plaintiff to establish deceit and fraud, when he declares only in assumpsit, on a warranty, express or implied. There are indeed actions of assumpsit, which are founded upon a breach of duty, and partake of the nature of counts upon a tort. (5 Bos. and Pull. 366. 370.) The case of Hallock v. Powell, (2 Caines’s Rep. 216.) was an instance. The two counts in that case (and which I have since particularly examined) were for deceit. The one in warranting a distempered horse to be sound, and the other for a like deceit, in promising that he was sound. The gist of the action, then, was the deceit, and not the contract. Here it is otherwise. It is plain that a breach of contract, and not fraud, is the gravamen complained •of and, consequently, the evidence of fraud, which was offered at the trial, was properly overruled, and the judgment must be affirmed.

Kent, Ch. J. Thompson, J. and Yates, J. were of the same opinion.

Spencer, J.

The court below considered the declaration as on an express warranty, and rejected the proof which went to show, that the defendant had been guilty •of fraud in the sale of the horse. The case of Stuart v. Wilkins (Doug. 19.) furnished the precedent of this declaration; and as I read the counts, they charge the •defendant with actual and positive deceit. In the case cited, there was proof of an express warranty; and on doubt being raised whether, in such a case, this was a proper form of action, it was held that it was. In delivering the opinion of the court, Lord Mansfield oh-1 served, that this sort of declaration, where a warranty is to be proved, (he was told by Ashhurst and Bailer, Justices,) had been practised for twenty years ; and that it is made use of with a view to let in both proofs, if necessary. And Butter, J. in giving his opinion, states, that this mode of declaring had been in use ever since he knew any thing of the practice. It is supposed that Lord Mansfield, in speaking of both proofs, meant proof of an express and an implied warranty; but this cannot have been his meaning, for he had just said, “ that selling for a sound price without a warranty, may be the ground for an assumpsit; but in such case it ought to be laid, that the defendant knew of the unsoundness.” In the declaration before him, it was not alleged that the defendant knew of the unsoundness, and so, according to his rule, it could not embrace the case of an implied warranty, merely from the soundness of the price, and by both proofs he must have meant' proof of an express warranty, and proof of a representation amounting to a promise. In the case of Hallock v. Powell, (2 Caines, 216.) one of the counts was Mon assumpsit, like the present, and the other on a warranty, and this court held, the gist of the action was a deceit.

As I understand the objection, it is, that the declaration does not aver that the defendant knew the horse was different from his representations of him, the want of which averment is considered fatal. I repeat, that it cannot be said that the declaration does not allege that the defendant deceived the plaintiff’s testator in two essential qualities of the horse, his age, and his being gentle in harness. The case of Bayard v. Malcolm, (2 Johns. Rep. 550.) is in point, that the sciens of the defendant is matter of evidence, and need not be averred; the declaration, in that case charged the defendants with affirming the number of subscribers to the newspaper establishment sold, to be 900, and the profits to exceed 4,000 dollars per annum; and it alleged, 66 and so the plaintiff saith, that by reason of the affirmation of the the existence or non-existence of the deceit. It is true that case was after verdict, and the court intended that the plaintiff would not have recovered without proof of the fraud. In the present case the plaintiff offered the proof which went to establish the fraud; and he offered to prove what was intended to be proved in the case cited. That case, therefore, directly applies to the present; and although I was of a different opinion, I feel myself bound to assent to, and to uphold the judgment of the court of errors. defendant, he was falsely and fraudulently deceived.” xhe court for the correction of errors adjudged that this was a sufficient charge of fraud, and put in issue V

My opinion is, that the judgment below ought to be reversed.

Judgment affirmed.  