The complaint was properly dismissed, in both aspects in which the cause of action was presented.
There was no warranty upon the part of these defend*138ants as to the iron. Their undertaking, in that respect, was to send to San Francisco iron lying in Boston or New York, and a suitable description, so as to identify it, was inserted in- the contract. If the article was not at the places from which they were to transport it, they could not send it, and the omission would be no breach on their part. The language was simply descriptive, and did not constitute a warranty that the particular article existed.
[First Department, General Term, at New York, November 1, 1870.• Ou the other branch of the case it is enough to say that there is not any evidence that these defendants knew the representation, if made by them, (which it is not necessary to determine,) to be false. The very gist of the action for deceit is the fraudulent intent with which the representation is made; and that intent is not established by proof merely of the falsity of the representation; but knowledge when it was made, by the party making it, that it was false, must be shown. (Marsh v. Falker, 40 N. Y. 562, and cases cited.)
There is no proof that these defendants, if they made the representations, did not believe them to be true. The fact as to the identity of the iron was matter within the knowledge of "Weld & Co.; and it is quite likely that whatevever information the defendants possessed was obtained from that firm. And there is nothing to show that they did not believe, or had not the right to believe, in the truthfulness of the information they had acquired.
. I think the judgment should be affirmed, with costs.
Judgment affirmed.
Ingraham, P. J., and Geo. G. Barnard and Cardozo, Justices.]