Cunningham v. Kimball
Massachusetts Supreme Judicial Court
This was an action of trespass on the case for the recovery of damages for a deceit in the sale of a mare. The declaration contained several counts for the same cause of action.
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This was an action of trespass on the case for the recovery of damages for a deceit in the sale of a mare. The declaration contained several counts for the same cause of action. The fifth count, upon which the verdict was taken, alleges that the defendant, at, &c., on, &c., being possessed of a marc, which was unsound, and infected with a bad and inveterate sore in her shoulder, which rendered her of no value; and the plaintiff being then and there also possessed of a mare and a pair of steers, as of his own proper goods, of the value of eighty dollars; the defendant, to induce the plaintiff…
1Opinion of the Court
By the Court.
The objection in this case arises from a supposed variance between the declaration and the evidence given at the trial. If the action had been founded on the contract, and the gravamen had been the non-performance by the defendant of his part of it, there would have been some weight in the objection. But the whole gist and foundation of the plaintiff’s action is the defendant’s false and fraudulent affirmation; and, in this view, the variance is not such as to make it necessary or fit to send the cause to another trial; since the jury had all the essential facts before them, and…
2Cited by5 opinions
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