Merrill v. Schwartz
Supreme Judicial Court of Maine
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
- Matter of Gill Enterprises, Inc.United States Bankruptcy Court, D. New Jersey · 1981
- Gilson v. SpearSupreme Court of Vermont · 1865
- Kannon v. Blalock (In Re Blalock)United States Bankruptcy Court, E.D. Tennessee · 1981
- In re JonesUnited States Bankruptcy Court, M.D. Tennessee · 1980