Chimekas v. Marvin

The trial court correctly held that the cause of action attempted to be pleaded in the complaint was one at law for fraud. While the word “warranted” is used in one place and “breach of warranty” in another, the other allegations clearly establish the nature of the action as one in tort for fraud and not in contract for breach of warranty.

While the complaint alleges that plaintiffs Chimekas assigned all their rights under the contract to plaintiffs Cha-loupkas, this is not an allegation that the former assigned their tort cause of action for fraud to the latter. Thus we reach the same…