Executors of Evertson v. Miles
New York Supreme Court
IN error, from the court of common pleas, of Dutchess county. The plaintiffs, as executors of Evertson, brought an action of assumpsit, on a breach of warranty, on the saie 0f a horse, to the testator.
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IN error, from the court of common pleas, of Dutchess county. The plaintiffs, as executors of Evertson, brought an action of assumpsit, on a breach of warranty, on the saie 0f a horse, to the testator. The declaration contained four counts. 1. For that whereas, on the 20th day of September, in the year 1806, at Poughkeepsie, &c. in consideration, that t^le sa^ Nicholas, in his life-time, at the special instance an¿ request of the said "fames, would buy of the said * James, a certain gelding of him the said James, at and for a large price or sum of money, to wit, for the price of 187 dollars…
1Opinion of the CourtVast Ness, J.
The decision of the court below was correct. The declaration was agreeable to the precedent in Stuart v. Wilkins ; (Doug. 10.) and that applies when ■the plaintiff sues for a breach of a warranty ; and it is the modern mode of declaring on a warranty, instead of the ancient form of warrantizando vendidit. But when the plaintiff does not go for a breach of contract, but grounds his action on deceit and fraud in the sale, the fraud must be averred and charged, as a substantive allegation. To *142admit the proof of it, without such averment, would be going wide of the issue, and taking the party by…
2Cases cited1 opinion
- Hallock v. PowellNew York Supreme Court · 1804
3Cited by9 opinions
- In re the Estate of MullinNew York Surrogate's Court · 1932
- Harris v. BottumSupreme Court of Vermont · 1908
- Brooks v. RomanoSupreme Court of Alabama · 1906
- Vanleer v. EarleSupreme Court of Pennsylvania · 1856
- Mahurin v. HardingSuperior Court of New Hampshire · 1853
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