ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.
MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.
We are of opinion that it was error to instruct the jury that the plaintiff could not recover, in the present action, unless he established the scienter upon the part of the defendant.The original complaint -- though, perhaps, not in the most concise language -- made a case in tort for the breach of an express warranty in the sale of the bonds. The bill of exceptions states that the evidence in behalf of the plaintiff tended to show that, although the defendant knew or had reason to suspect, when the bonds were sold, that they were not genuine and valid, he "expressly affirmed their regularity and validity." These words may not necessarily import an express warranty. But no particular phraseology or form of words is necessary to create a warranty of that character. As was held by the Court of Appeals of Maryland, in Osgood v. Lewis, 2 H. &. G. 495, 518, "any affirmation of the quality or condition of the thing sold, (not uttered as matter of opinion or belief,) made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase; if so received and relied on by the purchaser, is an express warranty. And in cases of oral contracts, on the existence of these necessary ingredients to such a warranty, it is the province of the jury to decide, upon considering all the circumstances attending the transaction." To the same effect are Henshaw v. Robins, 9 Met. 83, 88; Oneida M'f'g Society v. Lawrence, 4 Cowen, 440, 442; Cook v. Moseley, 13 Wend. 277; Chapman v. Murch, 19 Johns. 290; Hawkins v. Berry, 5 Gilman (Ill.) 36; McGregor v. Penn, 9 Yerger, 74, 77; Otts v. Alderson, 10 Sm. & Marsh. 476. The
plaintiff was clearly entitled to go to the jury on the issue as to an express warranty. But he was, in effect, denied that right by the instruction that he could not recover in this action, unless he proved a scienter. It is true his pleadings also contained every allegation essential to support an action for deceit, apart from the issue as to express warranty. But the cause of action in tort for the breach of the express warranty was not obliterated, or removed from the case, because it was joined with a cause of action for deceit.
In Schuchardt v. Allens, 1 Wall. 359, 368, which was an action on the case for a false warranty on the sale of certain goods -- the declaration also containing a count for deceit -- the court said that it was now well settled, both in English and American jurisprudence, that either case or assumpsit would lie for a false warranty, and that, "whether the declaration be in assumpsit or tort, it need not aver a scienter; and if the averment be made, it need not be proved." It was also said, that, "if the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action." See also Dushane v. Benedict, 120 U.S. 630, 636. In 1 Chitty's Pleadings, 137, the author says, that case or assumpsit may be supported for a false warranty on the sale of goods, and that, "in an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the declaration, nor, if charged, could it be proved." In Lasseter v. Ward, 11 Iredell Law, 443, 444, Ruffin, C.J., citing Stuart v. Wilkins, Doug. 18, and Williamson v. Allison, 2 East, 446, said: "It was accordingly there held that the declaration might be in tort, without alleging a scienter, and, if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is, that, when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort, as well as ex contractu, on false warranties." And so in House v. Fort, 4
Blackford, 293, 295, it was said that "the breach of an express warranty is of itself a valid ground of action whether the suit be founded on tort or on contract;" and that, "in the action on tort, the forms of the declaration are, that the defendant falsely and fraudulently warranted, &c., but the words falsely and fraudulently, in such cases, are considered as only matters of form." But as to the scienter, the court said, "that is not necessary to be laid, when there is a warranty, though the action be in tort; or, if the scienter be laid, in such a case, there is no necessity of proving it." See also Hillman v. Wilcox, 30 Maine, 170; Osgood v. Lewis, 2 Harr. & Gill, 495, 520; Trice v. Cockran, 8 Grattan, 442, 450; Gresham v. Postan, 2 Car. & P. 540.
As the evidence entitled the plaintiff to go to the jury upon the issue of express warranty as to the genuineness of the bonds and coupons, and as the jury were in effect instructed that he could not recover, unless upon allegation and proof of the scienter,
The judgment is reversed, and the case is remanded, with instructions to set aside the judgment and grant a new trial.
MR. JUSTICE FIELD dissented.
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