The complaint contains all the elements of a complaint for a fraud. It must be held to be such unless the distinction between the two forms of action is at an end. While it contains all that is necessary to authorize a recovery upon a contract, it contains much more. These additional allegations are so important and are stated in a manner so logical and orderly, that they determine the character of the action. In addition to what is necessary to sustain an action upon contract, the complaint alleges: 1. That the defendant "fraudulently represented" that the lameness arose from an injury to his foot, and was temporary only. 2. That the plaintiff relied upon the warranty not only, but upon said representations, and believing them to be true, made the purchase. 3. That at the time of the warranty not only, but of the false and fraudulent representations, the horse was lame in his gambrel joint and not in his foot. 4. That at the time of making the false and fraudulent representations, the defendant well knew that the lameness was not in the hind foot, but was in *Page 111 the gambrel joint, which had been badly diseased for more than two weeks, which was also well known to the defendant. 5. That by means of the premises, the defendant falsely and fraudulently deceived the plaintiff in the sale of the horse, to his damage of $500.
No allegations could have been inserted which would have more clearly constituted a case of fraud. That there was a warranty as well as representations, or that both are alleged to have existed, does not alter the case. Fraud may be based upon a warranty or upon representations, or upon both together. They may exist severally or together, and either or both may be the subject of fraud, and of an action for damages for fraud.
If the plaintiff had been able to establish a fraud in the sale, I cannot doubt that he would have been permitted to prove it under this complaint. I do not see upon what ground an objection could have been made to it. So if the allegations of the complaint had been positively stated and had been verified, an order to hold to bail must have been granted upon an application made to the proper officer. (Code, §§ 179, 188.)
I do not find any authorities in the courts of this State which sustain the position that this complaint may be considered as an action for a breach of warranty. None of the cases cited by the respondent's counsel are to that effect.
In Moore v. Noble (53 Barb., 425), the complaint alleged that the defendant falsely and fraudulently represented the horse to be of a certain value and guaranteed him to be sound and free from disease. The court held it to be an action for a fraud, and that to entitle the plaintiff to recover he must prove thescienter. (See also Marshall v. Gray, 57 Barb., 414;McGovern v. Payn, 32 id., 83.)
Walter v. Bennett (16 N.Y., 250) and Belknap v. Sealey (14 id., 147) are hardly authorities on the question of whether the complaint in this action is in tort or assumpsit. They are authorities on the proposition that where the complaint is for a tort, the plaintiff establishing a case in assumpsit merely cannot recover. *Page 112
The precedent in 2 Chitty's Pleadings (679, 8th Am. ed., from 6th Lond. ed.) and the case of Williamson v. Allison (2 East, 446), are chiefly relied on by the respondent. The precedent cited in Chitty, which is for "a false warranty of a horse," does not sustain the claim. It omits the important allegation that the seller well knew the representation to be untrue. The precedent also at p. 279, "on a warranty of a horse to be sound," omits the same allegation. Both of these precedents contain the allegation used in all the old forms of assumpsit, that the defendant not regarding his promise, fraudulently intending to injure the plaintiff, craftily and subtly deceived the plaintiff.
The case of Williamson v. Allison is nearer to the point. The court hold that where all the allegations are made which are necessary to sustain an action in tort, if a warranty is also alleged, the tort may be disregarded and a recovery had in assumpsit. Dowdny v. Mortimer, cited in the same authority, held that the scienter must be proved, and in that case no express warranty was alleged. In my opinion, this case is not in accordance with the authorities and practice of this State, and should not prevail.
The view of this pleading which I have taken is in accordance with our improved system of pleading, abolishing all prior forms and requiring the party to make a "statement of the facts constituting the cause of action." (Code, § 142.) In the present case, the plaintiff made a statement of facts which did not constitute his cause of action. The Code never intended that a party who had failed in the performance of a contract merely, should be sued for a fraud, or that a party who had committed a fraud should be sued for a breach of contract, unless the fraud was intended to be waived. The two causes of action are entirely distinct, and there can be no recovery as for a breach of contract, where a fraud is the basis of the complaint. (See authorities, supra.) Connaughty v. Nichols (42 N.Y., 83) is the only authority cited to the contrary, and it does not sustain that position. *Page 113
The judgment should therefore be reversed and new trial granted, costs to abide event.