The plaintiff sues for damages for false representations and the case has been treated throughout by all parties as an action founded upon fraud. The plaintiff proved a complete case of an express warranty and a breach thereof, but wholly failed to prove the cause of action it pleaded. It is an essential element of such an action that there should be shown not only the representations, and their falsity, but also knowledge of such falsity on the part of the person making them, and sometimes the positive affirmation of a material fact without knowing whether it was true or false. Fraud must be proven and is not to be presumed without proof, although of course its proof may consist of facts which raise the presumption. There was only one conversation between plaintiff’s representative and defendant, and what defendant said in that conversation was rather á warranty than a representation and was in point of fact afterwards incorporated into the warranty. There is not the slightest evidence in the. case that the *435defendant ever saw the horses until the day of sale, or had any knowledge at all as to their condition or defects. In Moorehead v. Holden, 7 Civ. Pro. 188, relied upon by the justice below, it appeared that the defendant had been a coachman and was familiar with horses and had had the horse there in question in his possession and under his control for a year with full knowledge of his lameness. That case differs essentially from the present.
The judgment must be reversed and a new trial ordered with costs to the appellant to abide the event.'
Giegerich, J., concurs.