Legal Opinion

Merrill v. Schwartz

Supreme Judicial Court of Maine

Decided November 30, 1878Published

Case on a warranty of a shingle machine, alleging deceit and fraud and breach of warranty. On report, as follows: “ The defendant is in bankruptcy, and filed his petition after the cause of action, if any, accrued. If a discharge or composition in bankruptcy, to which plaintiffs did not consent, would be a bar to plaintiffs’ claim, the action is to be entered neither party, otherwise to stand for trial.”

1Opinion of the Court

Appleton, O. J.

This is an action brought upon a warranty of the defendant. It is nofc'to recover for a tort, but for a breach of contract. A warranty is a contract. The plaintiffs claim that a breach has occurred, and have commenced this action to recover the damages arising from such breach. The damages are ascertainable, and this suit was brought for their ascertainment. A contract cannot be converted into a tort by the mere use of vituperative language in the declaration. When a claim originates in contract, although fraudulently induced, and is prosecuted in an action sounding in damages,…

2Cases cited4 opinions

  1. Matter of Gill Enterprises, Inc.United States Bankruptcy Court, D. New Jersey · 1981
  2. Gilson v. SpearSupreme Court of Vermont · 1865
  3. Kannon v. Blalock (In Re Blalock)United States Bankruptcy Court, E.D. Tennessee · 1981
  4. In re JonesUnited States Bankruptcy Court, M.D. Tennessee · 1980

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