
    Gartner v. Corwine.
    
      Warranty — Sale of chattels — Action for damages — Allegation of false warranty —Recovery may be had without proof of knowledge of falsity.
    
    1. Where, in an action for damages for breach of a warranty in the sale of chattel property the petition also alleges that the defendant knew the warranty to be false, the plaintiff, upon proof of the warranty and its breach, may Recover the damages he thereby sustained, though he fail to prove the defendant’s knowledge of the falsity of the warranty.
    2. Whether such petition contains more than one cause of action, Quaere ? But if there be two, they may be joined in the samei action.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Ross county.
    The case is sufficiently stated in the opiuion.
    
      Frank P. Hinton, for plaintiff in error.
    The original action was not one to recover damages for the breach of an express warranty, but was an action for damages for a false warranty or deceit.
    In the general charge the court instructed the jury that if at the time of such sale the defendant ‘‘knowingly falsely warrants such horse,” etc.
    
      The general charge is based upon the authority of Swan’s Treatise, page 784; 12 Wheaton (U. S.), 183.
    The special instruction was based upon the authority of Taylor v. Leith, 26 Ohio St., 428.
    Under the general charge the plaintiff must prove: The warranty as claimed. Parmlee v. Adolph, 28 Ohio St., 20; 17 Texas, 372; 48 Illinois, 182; 2 B. Monroe, 375.
    Bates says, on page 788, vol. 2, “the action being for deceit or false representations, all the elements of such action must be averred and proved.
    “These are enumerated:
    
      ‘iFirst — Scienter of the falsity of the representation.
    
      li Second — An intent to deceive the plaintiff, etc.
    “ Third — The plaintiff must have relied on the representations, been deceived or misled.
    The intent to deceive must be averred. Bank, etc., v. Beebe, 6 Ohio, 497; Bartholomew v. Bentley, 15 Ohio, 659. This implies knowledge — otherwise could be no intent. Bates, page 416 and 417, vol. 1.
    No such case was made in the petition, hence no such charge would have been proper. Insurance Co. v. Reed, 33 Ohio St., 295.
    There are no allegations of reckless misrepresentations, or that he ought to have known the representations were false, but on the contrary, a positive allegation that defendant did know at the time he made them that they were false. The charge meets the case as plaintiff made it, and he cannot complain if the court did not read a treatise or essay on fraud to the jury, covering all its ■various phases. Vol. 28, Amer. and Eng. Ency., 858.
    Fraud and deceit implies bad faith, and has for its basis guilty knowledge, , and hence the charge correctly announced the law.
    
      The circuit court held that there were two causes of action set forth in the petition filed in the action in the court of common pleas, the first, declared upon an express warranty of the mare, and the second upon a false warrant}” or deceit.
    This was not the theory upon which the action was tried in that court, and we confidently submit, the petition will not bear any such construction.
    We submit that it sets forth but one cause of action, that of false warranty or deceit, with special damages. Wilcox v. Mc Coy, 21 Ohio St., 655.
    We may admit that a sufficient number of allegations of fact might be taken from this petition to make a cause of action upon an express warranty, but how could 'a petition be drawn declaring upon a false warranty or deceit of which the same could not be said? The allegations of fact declaring upon an express warranty, and a false warranty would be practically the same, except in the latter, the scienter must be alleged, and this, is what distinguishes the two actions.
    The weight of authority is to the effect that the code provisions have not abolished the distinction between causes of action excontractu and exdelicto, even when they arise out of the same transaction, although there are decisions to the contrary. Cohoon v. Bank of Utica, 4 How. Pr., 422; Maxwell v. Farnam, 7 How. Pr., 236; Furniss v. Brown, 8 How. Pr., 69; 9 How. Pr., 311; 12 How. Pr., 28,331; 15 How. Pr., 221; 65 Bar., 457; 56 N. Y., 332; 58 How. Pr., 152; 61 How. Pr., 163; 32 Hun., 332; 38 Hun., 380; 10 N. Y. St. Rep., 8; 94 N. Y., 22; 8 N. Y. Civ. Proc., 90; 10 N. Y. Civ. Proc., 43; 37 Cal., 183; 44 Ind., 223; 86 Ky., 530; 35 Mo., 483; 36 Mo., 350; 71 Mo., 424; 76 N. Car., 416; 78 N. Car., 22; 38 Wis., 603; 63 Cal., 97.
    
      Again, we insist that these two causes of action are contradictory and inconsistent with each other and cannot be joined in the same petition. A fraudulent sale is not void but voidable, at the election of the vendee. If there is a warranty, and the sale is fraudulent, the party may elect to keep the property and sue for a breach of the warranty, or he may return the property and avoid the sale. Swan’s Treatise, 783, 784; Roth v. Palmer, 27 Bar., 652; Kayser v. Sichel, 34 Bar., 84; Hion Bank v. Carson, 31 Bar., 230; Benj. on Sales, vol. 1, page 591, 593 and notes; also, pages 579, 580; vol. 6, Amer. and Eng. Ency. of Law, 247.
    A plaintiff cannot be permitted in one petition to allege a cause of action which would affirm a contract, and in another seek to rescind it. Kinkead’s Code Pleading, vol. 1, page 21, 22; Owens v. Hickmans, 2 Dis., 471; Trimble v. Doty, 16 Ohio St., 118; Morris v. Rexford, 18 N. Y., 552; Leading case, 95 N. Y., 237; 21 Ohio St., 277; Bliss on Code Pleading, section 11.
    Parties cannot have inconsistent remedies. Maxwell on Code Pleading, page 345.
    And where there is a warranty, with fraud, the vendee cannot rescind in part, but must do so in toto or be confined to his action on the warranty. Voorhees v. Earle, 2 Hill., 288.
    Fraud and warranty can not, in .any case, be united together. Moore v. Noble, 53 Bar., 425; 36 How. Pr., 385; Bates Ple., vol. 1, page 417; Sweet v. Ingerson, 12 How., 331.
    It is an action exdelicto and it would have been substantial error to direct a verdict for the plaintiff in case the jury shall find a mere breach of contract of warranty. Sweeney v. Vroman, 60 Wis., 278; Amer. and Eng. Ency. of Law, vol. 8, page 653.
    
      If the vendee both affirms and rescinds the contract, to whom does the property belong? Vol. 28, Amer. and Eng. Ency. of Law, page 858 and notes; Wallace v. Wren, 32 Ill., 146.
    We repeat that this petition contains but one cause of action, and after verdict and judgment the pleading should be construed so as to support the judgment. Trimble v. Doty, 16 Ohio St., 119; Dean v. Leonard, 9 Minn., 190.
    The case was tried in the common pleas court upon the theory that the petition contained but a single cause of action, and the court so charges the jury.
    The circuit court holds that the petition states two causes of action, one for a breach of warranty and one for false warranty or deceit, and, in effect, reversed the judgment because the court omitted to charge the jury upon the first cause of action, although, the record shows, that the plaintiff did not make any request of the court at all, as to the charge.
    In order to constitute this error, the plaintiff must have requested the court to so charge the jury. Jones v. State, 20 Ohio, 34; Doll v. State, 45 Ohio St., 452.
    
      C. B. Foster and W. E. Evans, for defendant in error.
    In the general charge, the jury was instructed that the plaintiff could not recover unless he proved that the defendant ‘ ‘knowingly falsely warranted, ’ ’ etc. In the special charge, the jury was told that before it could find for the plaintiff, “it must find not only that the defendant made the representa tions in question, * * * that such represen bations were relied upon and were false, but also that the defendant at the time he made them knew they were false.”
    This was erroneous and prejudicial.
    It precluded the plaintiff from any recovery although the petition contains every averment, and the evidence may have satisfied the jury of the truth of every fact, essential to a recovery for a breach of warranty; and would drive the plaintiff (in the event of failure to prove false representations knowingly made) to a new action where he would have to reaver and reprove only what he in the action tried, averred and proved; and that, too, against the same party only. Morgan v. Bronson, 20 Ohio St., 54; 1 Herman Estop, etc., section 258.
    The question presented is, whether or not a plaintiff must resort to a new action for his remedy on a warranty, when he fails in his action for fraud.
    A plaintiff is directed, in his petition to state the facts constituting his cause of action in ordinary and concise language, and demand the relief to which he thinks himself entitled. Section 5060, Revised Statutes.
    The plaintiff, in this case, alleged the facts just as he believed them to be — he had been informed' and he believed that the defendant knew the representations in question to be false, and he so averred, and asked for the relief to which he thought himself entitled; but, according to the charge of the trial court, he did so at his peril — if he failed to satisfy the jury that the defendant knew the representations to be false, he could not recover anything although he proved the warranty, the breach of it, and damages resulting; and he must go out of court, and in a new action reaver and reprove the same things averred and proved in the trial had, against the same party, in order to get the relief to which he is entitled, omitting only in the petition the averment that the defendant knew the representations wére false.
    The claim to recover on the warranty in the event of failure to establish the fraud was made on the trial; but the court, in the charge to the jury, positively prohibited such a recovery. An exception was taken to the charge for that reason. Section 5019, Revised Statutes, expressly authorizes the joinder of several causes of action when they are included in “the same transaction, or transactions, connected with the same subject of action.”
    And this includes causes of action legal and equitable, excontractu and exdelicto. Sturges v. Burton, 8 Ohio St., 218; Sweet v. Ingerson, 12 How., 331; Parmlee v. Adolph, 28 Ohio St., 10.
    The person making the representations must not only believe them to be true, but the facts of the case must be such as to justify the belief. Taylor v. Leith, 26 Ohio St., 428.
    An action will lie for false representations of a material fact, whether the party making it knew it to be false or not, if he had no reason to believe it to be true when made, etc. Insurance Co. v. Reed, 33 Ohio St., 283.
    Reckless statements — “Representations made in ignorance of their truth or falsity, involve moral turpitude equally with knowingly false statements.” Notes to Pasley v. Freeman, 2 Smith’s Ld. Cases, pages 1331 of 9th American Edition; 21 Ohio St., 21.
    No motion was made in the trial court to require dlaintiff to separately state and number the different causes of action, which he could easily have done if asked so to do by defendant, and which he- would have done in the first instance had he considered it necessary, or even better pleading in this particular case, as defendant by answering as he no doubt would, and did in fact— would waive any such objection, and the result would be the same as to separately state and number. McKinney et al v. McKinney et al., 8 Ohio St., 429; Township, etc. v. Bennett, 10 Ohio St., 441; Blossom v, Barrett et al., 37 N. Y.; Freer v. Denton et al., 61 N. Y.,492.
    One injured by breach of warranty of such a nature as would justify a return cannot be compelled to elect between a return and damages, but may be entitled to both. Mfg. Co. v. Vrooman, 3 Mich., 518; 37 Id., 183; 1st Nash. Pl. and Prac., 4th ed., page 97.
    An action for fraud in the sale of a horse and for breach of warranty are joinable. 1 Kinkead Code PL, bottom page 26 and top page 27.
    ' In civil actions no one would be heard to contend at this late day, that, because the plaintiff had claimed more than, upon the trial he could maintain, it would be fatal to his rights to recover that to which he was entitled upon the facts and the law as they appear, upon the trial. State ex rel. v. Crites, 48 Ohio St., 173.
   Williams, J.

Suit was brought by Corwine against Gartner to recover damages for breach of warranty in the sale of a horse. The petition alleges, in addition to the warranty and its breach, that the defendant knew, at the time of the sale that the animal was not what it was warranted to be. On the trial of the issued joined by a denial of the warranty and its breach, and of the defendant’s knowledge that the warranty was false, the jury was instructed, in substance, that to entitle the plaintiff to a verdict in the case, it was necessary for him to prove, by a preponderance of the evidence, that the defendant knew the warranty was false in some material particular, or had reason to believe it to be false. The judgment rendered on the verdict, which was for the defendant, was reversed for error in giving the foregoing instruction; and, upon the question concerning which the courts below entertained different opinions, the case has been ordered to be reported.

The contention of counsel for the plaintiff in error appears to be, that the effect of the averment charging the defendant with knowledge of the falsity of the warranty, was to make the action one for deceit or fraud; and, therefore, proof of such knowledge was essential to the plaintiff’s right of recovery; otherwise, the petition would include two inconsistent causes of action which could not be joined.

The code permits a plaintiff to state the' facts which constitute his cause of action; and when, upon any of the facts so stated, he is entitled to recover, he cannot be denied that right because he has alleged other facts that he is unable to prove. A warranty in a sale of chattel property is a part of the contract; and the warrantor is bound by it, and answerable in damages for its breach, though he may have honestly believed the article to be as warranted. But the representations of the seller may fall short of an express warranty» and yet may be such as induce the purchaser to rely upon them, and entitle him to redress against the seller if the latter knew they were false, or recklessly made them without reasonable ground for believing them to be true. And which of these phases of his case the purchaser may be able to sustain by proof, can only be determined on the trial. But proof of either, entitles him to relief.

And it is competent, we think, for a plaintiff to state in his pleading all the facts of the transaction which enter into his right to recover, as he believes them to be, though they present different grounds of recovery, and admit of different modes or measures of relief; and he may ultimately have that relief to which the allegations proved, show him entitled.

The petition of the plaintiff alleges an express warranty of the horse, and a breach of that warranty; and, his right to recover the damages resulting from that breach was not affected by the allegation of the defendant’s knowledge of the falsity of the warranty. The latter allegation did not, as counsel for the plaintiff in error contends, change the action to one exclusively for deceit, nor is it inconsistent with those upon the warranty; they may all be true. Whether there is more than one cause of action stated in the petition, is a question upon which differences of opinion may exist. But it need not now be determined. If there are two, one for breach of the warranty, .and the other for fraud, they grew out of the same transaction, and may be properly joined in the same petition; and no motion having been made to require them to be separately stated, that objection to the petition, if it were open to it, was waived by answer. In favor of the view that there is but one cause of action stated, it may be said, there was but a single transaction between the parties — the negotiations resulting in the sale of the horse; there was but one wrong of the defendant — the sale of an unsound animal as and for a sound- one; and there is but one right of the plaintiff growing out of the wrong, and that is, to have redress for the injury he sustained in consequence of it, and for which he can have but one recovery. And a statement of all the facts of the transaction, with a demand for the relief desired, as one cause of action, seems more in harmony with our reformed system of pleading than a repetition of them, which becomes necessary, in part at least, in their statement as separate causes of action. But in either event, whether the petition contains but one cause of action, or two, the plaintiff, upon proof of the warranty and that it was broken to his damage was entitled to a verdict, notwithstanding he failed to establish by proof the defendant’s knowledge that the warranty was false; and as this right was denied him by the instruction given to the jury, the reversal of the judgment for that reason was not error

Judgment affi/rmed.  