#### Edward A. Quintard, plaintiff, *vs.*Henry J. Newton, defendant.

1. An action will not lie by the purchaser of a horse for the difference between the price paid by him and its market value, together with the expenses of its keep, upon the ground of fraud in the sale, where the only fraud charged was the concealment of a disease of the animal, by an omission to disclose it at the time of the sale, although known to the vendor, and there was no attempt to rescind the contract by an offer to return the animal, and no notice given to the defendant of a resale of it by the purchaser.

2. No averment of fraud is necessary when the action is founded on a warranty.

8. The sufficiency of a pleading, in form and substance, is to be determined by the rules prescribed therefor by the Code of Procedure. (§ 640.)

4. The omission of a defendant to move to make definite and certain, or strike out irrelevant or redundant matter, in a complaint, is an admission that he fully understands, for the purpose of his defense, the nature of the charge against him, and is prepared to meet it. Nor is any thing contained in the complaint to be rejected as irrelevant or redundant, provided it relates, and is material to, some cause of action.

5. If there be two causes of action aimed at in the complaint, their junction in one action, if improper, can only be objected to by demurrer. So that although an action on a warranty and for a false representation on the sale of the same chattels, cannot be joined if objected to, yet that does not prevent parties from assenting, by not objecting, to try both in one action.

6. Where the complaint alleges a warranty, a sale on the faith of it, the existence of a defect warranted against, and damages thereby, these allegations complete a cause, of action on which the plaintiff is entitled to recover; unless in his complaint he rejects such warranty and its obligations as a contract, and limits the introduction of it to its use as a mere instrument of deception.

7. Allegations of fraud, in a complaint, when not essential to enable a plaintiff to recover, may be disregarded.

8. If. the question, whether words used by a vendor on a sale of a chattel were intended and understood as a warranty, be one of fact for a jury, proof of prior knowledge by the vendor, of a latent defect in the chattel sold, a previous attempt to cure it, and a failure to communicate such facts to the buyer, with a view to induce him to purchase, if the attempt be successful, and the purchaser buys believing the chattel to be perfect, may be relevant on such question of fact. *Per*Robertson, Ch. J. •

9. The allegation of giving a warranty on a sale of chattels *in order to deceive*the plaintiff, who was the vendee, is not necessary to any cause of action. The fact of making such a contract renders a reliance upon it, wholly independent of any question of good faith. <

11. The- omission in a complaint of an allegation of an offer to return property bought on the discovery of a defect in it, which is essential in an action for *73fraud, tends to establish that such was not the kind of cause of action intended where a warranty is also alleged; for the Code requires that when the effect of a pleading is to be determined, it shall be liberally construed with a view to *substantial justice*between the parties.

12. Where a buyer has had no opportunity or means to discover the nonconformity of an article sold to representations of facts affecting its value or utility, which the seller may be presumed to know, and such representations are made by the seller during the negotiation for sale, unqualifiedly, and no act, declaration or occurrence concurs therewith to show that they were expressions of mere opinion, it would seem that the law construes them to be a warranty.

13. Where, in the course of a negotiation by the plaintiff for the purchase of a horse from the defendant, the plaintiff had no means of detecting an existing defect in the animal upon mere inspection, or except after a thorough trial and testing of its qualities, but offered to give a certain price, on condition that the horse *was sound,*and the defendant unqualifiedly declared him *to be sound,*and received the price thus offered; *Held*that this was sufficient to establish a warranty, or, at least, to have gone to the jury as evidence of one. (Barbour, J. dissented.)

(Before Robertson, Oh. J., and Barbour and Garvin, JJ.)

Heard January 17, 1867;

decided May 6, 1867.

This was an action to recoyer the difference between the price paid for a mare and her real value at the time of her sale by the defendant to the plaintiff, as well as the expense of her keep, in consequense of- her unsoundness. The complaint, after setting out such sale for a certain sum, averred that at the time of it she was badly wind broken, and otherwise unsound and diseased; which averment was ^followed by substantially the following allegations: “ That the defendant knew of such defect, and while owner of such animal caused her to be treated with medicines *and otherwise, for the purpose of concealing”*it, so that he might dispose of her at a large price; that by reason of such treatment her unsoundness was temporarily entirely concealed ; that neither he nor his agent informed the plaintiff of any of such facts, but *“fraudulently concealed*the same, with *intent to deceive ”*him. It then proceeded to allege that *“further to mislead*and deceive the plaintiff, the defendant * * *falsely*represented and *warranted*to the plaintiff, that the * mare was in all respects *sound and*
      *74
      *healthy*and *in good*condition,” and “ that *by reason of the foregoing*the plaintiff was *deceived*and was induced to purchase and pay for” such mare. It then alleged expenses incurred for keeping and taking care of such mare, set forth her value if she had been sound, and demanded the amount of such difference in value and expenses. The answer put in issue all the allegations in the complaint, except the sale and delivery of the mare in question, and payment of her price.

On the trial the plaintiff’s coachman (Dickinson) testified, that the plaintiff, after he had obtained from the person in whose charge such mare was (McManus) the name of the owner and the price of the animal, and been informed by him in answer to a question that *she was sound,*stated that if *she was sound,*he would give the price named in the complaint, ($450,) and he, the witness, then went to see the defendant. He asked the defendant the price, and if the mare was *“sound in everyway."*He named $500, and said she was. The witness then told him, *f-Hf she was," the plaintiff would give*$450 *for her.*The defendant finally agreed to take it. The testimony of the plaintiff corroborated that of his coachman, as to the conversation between himself and McManus. He also testified that after he dis-' covered a defect in the mare, of being broken winded, he wrote a note to the defendant requesting him to take-her back, but subsequently sold her for a less sum ($150) than he paid for her.

^The testimony in regard to the unsoundness of the mare consisted of that of the plaintiff, his coachman, (Dickinson,) a veterinary surgeon, (Rudd,) a livery stable keeper, (Stevens,) the farmer who brought her, (Bailey,) and a' coachman of a former owner, (Brown.) The plaintiff testified that he drove her, after he bought her, and found she was *Irohen-wincled,*a defect which he understood. His coachman testified that he drove her after- the purchase; when “ she showed she was affected in the wind; she commenced to choke and whistle in the throat.” The surgeon *75testified that “ she labored under a disease called roaring.” That it was a thickening of the membrane within the throat or windpipe. “A horse affected with that disease could not be driven fast; it interfered with his breathing.” That it “is considered permanent and incurable. It developes itself in a long time.” Upon cross-examination, he stated that it was a chronic disease, caused by cold ór epidemic distemper, or bronchial disease, generally from distemper ; that was the principal cause. It could be concealed for a few days, but he couldn’t “ tell how long.” Upon re-direct examination he stated it was “a heavy breathing—a regular roar—a thickening within. The; animal cannot breathe as well when traveling.” The livery stable keeper testified that riding behind the mare, he discovered she was broken winded by her *“roaring*or *hallooing.”*Such a disease “ruined the horse; he could not be used.” He further stated that the “ difficulty seemed to be in the lungs.” The purchaser “found her wind broken; hada kind of whistling ■ or roaring. The former owner’s coachman (Brown) testified that she had a whistling in the throat. It is called *whistling*or *roaring.*This was all the testimony as to the disease or defect in the mare.

On the trial the defendant’s counsel moved to dismiss the complaint, on the ground that there was no proof of fraud on the part of the defendant in the sale, or any knowledge on his part that she was unsound at the time of the sale. The plaintiff’s counsel insisted that the action was upon a false warranty, and that no proof of such fraud, or knowledge, was necessary. The court sustained the application, and held that the action could not be maintained without proof of such fraud or knowledge. The plaintiff’s counsel then requested the court to permit the jury to pass upon the question of such fraud’ or knowledge, insisting that there was sufficient evidence for that purpose; but the Court held the evidence to be insufficient, and denied the request; to which also the plaintiff’s counsel excepted. The court then dismissed the complaint; to which also the *76plaintiff’s counsel excepted. The court directed such exceptions to be heard in the first instance at general term; which now came on to be argued.

*-Odell,*for the plaintiff.

I. The court erred in dismissing the complaint. The plaintiff made out a case by proof that a warranty was given, and that it was false. It was not necessary to show *knowledge*on the part of the defendant. *(Fowler*v. *Abrams,*3 *E. D. Smith,*1. *Holman*v. *Dord,*12 *Barb.*336. *Schuchardt*v. *Allen,*1 *Wal.*359. *Byxbie*v. *Wood,*24N. *Y. Rep.*607, 610, 612. *Marquat*v. *Marquat,*12 *id.*342. *See also Hoe*v. *Sanborn,*21 *id.*559; *Sharon*v. *Mosher,*17 *Barb.*518; *Craig*v. *Ward,*36 *Barb.*378; *Bennett*v. *Judson, 21 N. Y. Rep.*238.)

II. It is no answer to say that the complaint states a cause of action for *deceit,*to sustain which it must be proven that the defendant knew of the mare’s unsoundness. Does it not *also*state a cause of action for *& false warranty,*within the decisions above cited? If two causes of action are *commingled,*the remedy is by motion to strike out, or to compel the plaintiff to elect, or to make the complaint more definite. *(Cheney*v. *Fisk,*22 *How.*236. *Harsen*v. *Bayaud,*5 *Duer,*656. *Hess*v. *Buff. R. R. Co.,*29 *Barb.*395. *Springsteed*v. *Lawson,*14 *Abb.*328.) If two causes of action are *improperly united,*the remedy is. by demurrer. And if no demurrer is taken the objection is waived. The alleged medicinal treatment of the mare, its intent, its result, &c. are matters of *evidence,*are all included in the general allegation of fraud, and ought not, even if true, to have been set forth in the complaint.

III. The circumstantial evidence tending to show that the defendant knew that the mare was unsound, was strong, and sufficient to carry the ease to the jury.

PV. It is a *mistrial*to direct that an exception to the disr missal of the complaint be heard in the first instance at general term. *(Code,*§ 265. *Hoagland*v. *Miller,*16 *Abb.*103. *Lake*v *Artisans' Bank,*17 *Abb.*232.)

*77
      *Gfeo. iS. Stitt,*for the defendant.

I. The testimony did not show any knowledge of the nnsonndness on the part of the defendant, fraud or concealment.

H. There was no warranty proved, and no- warranty declared on in the complaint.

I. The complaint sets forth that the defendant treated and doctored the animal so as to conceal her unsoundness, and did thereby conceal her unsoundness, and then concealed these facts from the plaintiff, whereby he was deceived, and claimed to recover damages for such wrongful conduct. The mare was proved to be a “roarer.” This is not a breach of warranty. *(Bassett*v. *Collis,*2 *Camp.*523.)

2. The testimony does not prove a warranty. The statement of the defendant was not made to the plaintiff; was made merely in reply to a question, and as a mere commendation or opinion. The mare was then exposed to the inspection of the plaintiff. It cannot be pretended that the defendant intended it, or that it was understood by any one as a warranty. (1 *Pars, on Cont.*464. *House*v. *Fort,*4 *Blackf.*296. *Reed*v. *Randall,*29 *N. Y. Rep.*358.) In this case the contract was held not to be a warranty. *(Ender*v. *Scott,*11 *Ill. Rep.*35. *Humphreys*v. *Cornline,*8 *Blaclf.*508.)

III. Upon the evidence in this case, if the jury had found a verdict for the plaintiff, the judge would have set it aside as contrary to evidence. Therefore the judge was right in nonsuiting the plaintiff. (Besson v. *Southard,*10 *N. Y. Rep.*236. *The People v. Cook,*8 *id.*74. *Storey*v. *Brennan,*15 *id.*524. *Goelet*v. *Ross.*15 *Abb.*251. *Herring*v. *Hoppock,*15 *N. Y. Rep.*409.)

Robertson, Ch. J.

The present case may be incapable of being sustained, on the ground of fraud, for several reasons. The particular kind of fraud charged in the complaint was *concealment*of a disease known to the defendant, by omitting to inform the plaintiff thereof. There was no *78other proof of it, and that would hardly sustain it in such a case. In the next place there was no allegation in the complaint, or any proof, that any attempt was made by the plaintiff to rescind the contract by tendering back the animal, as he was bound to do, in order to recover at all. *[Burton*v. *Stewart,*3 *Wend.*236.) The note written to the defendant by the plaintiff, requesting him to take back the mare, as testified to by the latter, is not equivalent to such a tender. There is no proof, besides, that it reached the defendant. The plaintiff also sold her without any notice to the defendant.

There is, however, an allegation in the complaint of a warranty of the soundness of the mare in question, which, if standing alone, would certainly contain a complete 'cause of action, without any averment of fraud. *[Schuchardt*v. *Allens,*1 *Wall, U. S.*359. *Holman*v. *Dord,*12 *Barb.*336. *Fowler*v. *Abrams,*3 *E. D. Smith,*1.) Unless, therefore, either the plaintiff has so entangled his allegation of a warranty with his averments of fraud, as to.preclude him from availing himself of the former as a contract, and compel him to rely upon it only as an instrument of fraud, or there was no such evidence in the case of its existence or violation as to call upon the jury or court to pass upon them, the plaintiff was entitled to recover.

. The distinction between forms of action, such as that between torts and contracts, cannot embarrass the plaintiff’s right, since they are destroyed. *(Code,*§ 69.) The only rules by which the form or sufficiency of a pleading is to be determined, are those contained in the Code. (§ 640.) That prescribes what a complaint shall contain, (§ 142,) and provides means for striking out of it matter which ought not to be contained in it. (§ 160.) If there are not enough facts stated in it to constitute a cause of action, a remedy may be had by demurrer, (§ 144,) or on the trial. (§ 148.) The relief of the plaintiff, if the défendant does not answer, is confined to that demanded in the complaint. If the defendant submits to the authority of the court, such relief *79may be extended, as far as is consistent with the case' made by the complaint, and embraced within the issue raised by both pleadings. (§ 275.) The Code requires the complaint to contain, besides the title of the cause, specifying the court, the county and the parties, and the demand of relief, only a statement of facts constituting a cause of action. (§ 142.) It requires such statement to be plain, so that the nature of the charge may be apparent, otherwise it may be compelled to be made so, on motion to make it definite and certain. (§ 160.) It also requires it to be concise, and without unnecessary repetition, otherwise it may be compelled to be made so, on motion to strike out redundant matter. *(Id.)*Where a defendant, therefore, has omitted to move to make definite and certain, or strike out irrelevant or redundant matter, it may be assumed that he fully understands the nature of the charge against him, and is prepared to meet it, and that nothing contained in the complaint is to be rejected, as irrelevant or redundant, provided it relates to a cause of action. If there be two causes of action aimed at in the complaint, their junction in one action, if improper, can only be objected to by demurrer. (§§ 144, 148.) It does not clearly appear .what the remedy is for mingling them, or not stating them separately, as required by the 169th section of the Code, unless by motion to make definite and certain. *(Wood*v. *Anthony,*9 *How.*78.) For not numbering them as required by the 19th general court rule,, the remedy is to strike out all allegations not relating to a single caus-e of action, *(Benedict*v. Seymour, 6 *How.*298,) or the whole' pleading as irregular, *(Blanchard*v. *Strait,*8 *id.*85,) or to return it as such. *(Corlin v. George,*2 *Abb.*465.) There is abundant remedy, therefore, for any defect, confusion or redundancy, in a complaint, and a party defendant who does not take advantage of them, acknowledges himself fully prepared to meet any case, whose proof is warranted by allegations in the complaint. Indeed,' there is no mode prescribed by which separate causes of action can be distinguished. Any *80one which apprises the defendant of what is intended, is sufficient. *(Hall*v. *McKechnie,*22 *Barb.*244.)

It is true that an action on a warranty, and for a false representation on the sale of the same chattels, cannot be joined, if objected to; *(Sweet*v. *Ingerson,*12 *How.*331; *Springsteed*v. *Lawson,*14 *Abb.*328;) but that does not prevent parties from assenting, by not objecting, to try both in one action. In this case the complaint alleges a warranty; a sale on the faith of it; the existence of a defect warranted against, and damage thereby. Those allegations complete a cause of action on which the plaintiff is entitled to recover, unless, in his complaint, he has rejected such warranty and its obligation as a contract, and limited the employment of it to being a mere instrument of deception. That is best tested by ascertaining how much can be stricken from the complaint, without touching such cause of action. The allegations as to the defendant’s knowledge of the specified defect in the animal sold, his use of means to conceal it, and his omission to disclose those facts to the plaintiff, are entirely independent of any other, and may be omitted without affecting them. So, too, the intent with which the warranty was made is immaterial, and may be omitted, upon the authority of cases before cited. In *Schuchardt*v. *Allens, (ubi sup.)*where the action was both for deceit and on a warranty, it was held, that it was not necessary to prove a *scienter*by the defendants.

The case of *Byxbie*v. *Wood,*first decided in this court, and which was finally disposed of in the Court of Appeals, (24 *N. Y. Rep.*607,) settles the question that allegations of fraud in a complaint, when not necessary to enable a plaintiff to recover, may be disregarded. In that case the action was brought by an assignee, and an objection was taken that the action was for *fraud,*and its cause could not be assigned. The action was for moneys overpaid upon the settlement of the accounts of a joint adventure between the associates in it, on the faith of false and fraudulent accounts and vouchers produced. In that case the court held, *81
      *(page*610,) that they could “not say that a particular phrase makes a particular form of action, so that a party, by its use, may shut himself out from the remedy which his facts would give him. He may, indeed, so utterly *misconceive his rights*as to make a complaint *not at all adapted thereto,*so that his offered proofs, or even his proofs put in without objection, would require an entirely new complaint to reach them, and then no court could give him judgment.” It also emphatically declared that “ the ends of substantial justice would require them to disregard the words that charge a wrong,” unless the complaint were “necessarily and unavoidably ” one for “a mere naked tort in an action claiming damages for the wrong.” *(Page*611.) It was also held therein that the allegation of deceit was proper, because some proof of such fraud would be necessary to enable the plaintiff to recover back the money overpaid, otherwise it might be presumed to be a voluntary gift.

Applying the principles thus evolved, from the case last cited, to that before us, inasmuch as the question, whether words used were intended and understood as a warranty, may be one of fact for a jury, *(Duffee*v. *Mason,*8 *Cowen,*25; *Whitney*v. *Sutton,*10 *Wend.*412; *Cook*v. *Moseley,*13 *id.*277; *Stryker*v. Bergen, 15 *id.*490; *Moses*v. *Mead,*1 *Denio,*378; *S. C.*5 *id.*617,) it cannot be positively asserted, that proof of prior knowledge by a vendor of a latent defect in a chattel sold 'by him, and an attempt to cure it, and his failure to communicate such facts to the buyer, in order to induce him to purchase, (if the attempt be successful, and he buys believing the chattel to be perfect,) may not be relevant on such question of fact. A contract of warranty repudiates the idea of imposition, since the purchaser trusts to the contract, not to a representation. From the same facts, an inference of an innocent contract is to be drawn, rather than of a fraud, where the party influenced by it is equally protected. A right of action on a warranty on a sale of chattels, may be more or less de*82sirable than one for a fraud, because, although it ■ gives ■no right of rescission of the contract, it requires no proof of knowledge on the part of the seller. Except the fraudulent concealment charged on the defendant in the complaint, he might have done all wherewith he is- charged therein, and (believing the disease in question curable,) perfectly innocently, and have been willing to give a warranty. The fraudulent concealment alleged can 'only be one in law; for no acts to conceal the disease, or the fact of its having been attempted, to be cured, except the negative one of omitting to disclose them, is charged; and whether that is a fraudulent concealment must be entirely a question of law, founded upon some supposed obligation to disclose it. The allegation of giving a warranty, *in order to deceive the plaintiff,*was not necessary to any cause of action. The fact of making a contract, (as I have already said,) shuts, out all consideration of good faith in relying upon it, on one side, as it does of its materialty on the other. The fact, also, that the complaint does not contain the allegation of an offer to return, on the discovery of the unsoundness of the mare, which is essential in an action for fraud, *(Baker*v. *Robbins, 2 Denio, 136; Fisher*v. *Conant,*3 *E. D. Smith,*199; *Same*v. *Fredenhall,*21*Barb. 82,)*tends to establish that such was not the cause of action intended, since the Code requires that the construction of a pleading, *in order to determine its effect,*shall be lib eral, with a-view to *substantial justice*between the parties. (§ 159.) There cannot be much, doubt if charges of fraud contained in a complaint, considered as controlling the nature of the cause of action, make it bad, and the rejection of such charges as surplusage, leaves a statement of a good cause of action therein, without such charges, which construction of it will most favor the “ ends of *substantial justice ”*alluded to in *Byxbie v. Wood, (ubi sup.)*and mentioned in the4 section of the Code last cited.

Assuming the action to be for a breach of warranty, the next question that presents itself is, whether there was evi*83denee, either directly of one or of facts, from which a jury might infer one. It appears to me there was, of hoth. The term “warrant,” it is settled, need not be used, provided an equivalent affirmation or assertion is. *(Roberts*v. *Morgan, 2 Cowen,*438. *Whitney*v. *Sutton, Cook*v. *Moseley, ubi sup.)*It is true that the mere expression of an opinion will not be enough. *(Sweet*v. *Colgate,*20 *John.*196. Eagle *Works*v. *Churchill, 2 Bosw.*166.) Bat positive assertion as to the quality, nature or attributes of an article sold, made to induce their purchase, and understood to be so, will be sufficient to authorize the inference of a warranty. *(Chapman*v. *Murch,*19 *John.*290. *Gallagher*v. *Waring,*9 *Wend.*20. *S. C.*18 *id.*425.) Indeed the rule seems to be, that where a buyer has no opportunity or means to discover the non-conformity of an article sold to representations of facts affecting its value or utility, which a seller may be presumed to know, and such representations are made by such seller, during the negotiation for the sale, unqualifiedly, and no act, declaration or occurrence concurs therewith, to show they were expressions of mere opinion, the law construes them to be a warranty. A concomitant expression, such as that used in the case of *Cook*v. *Moseley, (ubi sup.)*“ I would not be afraid to warrant,” may warrant a submission to the jury of the question whether the assertion was intended as an expression of opinion only. A positive statement in the case of *Carley*v *Wilkins,*(6 *Barb.*557,) was held to constitute a warranty, and not a mere opinion of. value, although accompanied by the expression that the article “ was worth a shilling a barrel more than common.” Upon proof that certain goods were fancy articles, dependent for their value upon being *new, just imported and French,*it was held that an assertion that they were so, was not a mere representation of their value, or statement of their condition, but *an absolute warranty. (Holman*v. *Dord,*12 *Barb.*336.) Representations that a certain kind of oil was “ *suited for machinery,”*where it was at a distance, when bought, were also *84held to constitute a.warranty. *(Warren*v. *Van Pelt,*4 *E. D. Smith,*202.)

In the case before» us the evidence brings it to the standard just laid down. The testimony of the plaintiff and his coachman establish that, in the course of a negotiation for the purchase of a mare, the plaintiff, having no means of detecting the existing defect in such mare, upon mere inspection, or except after a thorough trial and testing of her qualities, upon his offering to give a certain price, *upon condition that she was sound,*the defendant, who, as owner, may be presumed to have known her true condition, declared her, unqualifiedly, *to he sound,*and received the price thus offered. This was sufficient to establish a warranty, or, at all events, to have gone to a jury as evidence of one.

Lord Ellenborough held, in one case, at *Nisi Puris, (Bassett*v. *Collis,*2 *Camp.*523,) roaring *not*to be unsoundness in a horse; but in a subsequent ease, *(Onslow*v. *Eames,*2 *Stark.*81,) being apparently more fully advised, held the contrary. It is hardly possible that an incurable chronic disease, such as that in question, impeding the efforts of the animal in his exertions, should not be held unsoundness. There must, therefore, be a new trial, even if that be a question of fact, and the exceptions must be sustained.

Garvin, 3. concurred.

Barbour, J. (dissenting.)

The complaint sets forth, as a cause of action, that the defendant, by his agent, McManus, sold a mare to the plaintiff for $450, which was paid by the latter; that, previous to, and at the time of the sale, the mare was unsound, to the knowledge of the defendant, and that he, with intent to deceive and defraud the plaintiff, *falsely represented and warranted,*by his said agent, to the latter, that the mare was sound; that the plaintiff was deceived and induced thereby to purchase and pay for her; *85and that, in fact, she was unsound and of little value; and he claims to recover as damages, the difference between the price he paid and the real value of the animal, and also the expenses of her keep..

The plaintiff failed, upon the trial, to prove such facts, as would have authorized the jury to find that either the defendant or his agent had any knowledge of the unsoundness of the mare, previous to, or at the time of, the alleged sale. The action must, therefore, be sustained, if at all, upon the warranty charged in the complaint, and a breach of such warranty as an action, not sounding in tort, but in *assumpsit*upon the contract and promise of the defendant implied in and by such warranty. The first question, then, is, whether the defendant warranted the animal to be sound, wnen, in fact, she was unsound.

A mere representation by a vendor, during the progress of a bargain of sale, as to the quality or condition of goods, which the purchaser has an opportunity to and may examine before the completion of the sale, does not, necessarily, constitute either a fraudulent representation or a warranty. “ *Simplex oommendatio non ohligat; sed caveat*emptor.” But if the representation be false within the knowledge of the party making it, and the buyer is thereby deceived and defrauded, an action will lie upon the tort for the injury he has sustained; and that, too, whether such representation be, in form or effect, a warranty or otherwise. Nor is it material whether the representation be made at the time the sale is effected, or during, or even prior to, any negotiation in regard thereto, provided it shall appear that the seller designed to, and did deceive the purchaser thereby, and induce him to purchase.

To create a warranty, upon the sale of goods, however, it is quite essential that the statement or representation of the vendor should, actually or constructively, enter into, and form and constitute a part and portion of, the contract of sale itself; for a warranty is made by the contract or undertaking of the warrantor, and in no other way.

*86I am satisfied that the representation of McManus to the plaintiff, touching the soundness of the mare, considering all the circumstances under which’the same was made, constituted a warranty, if a contract of sale, resulting from negotiations of which that statement formed a part, was subsequently entered into and completed between them. *(See Wilmot*v. *Hurd,*11 *Wend.*584.) Eor, as stated by the plaintiff in his testimony, the conversation in that regard was this: “I asked the man who brought them around the price of this mare. I asked him if she was sound. The man said she was. I then told him, 6 *If the mare is sound,*I will give you $450 for her, and you may send her around to the stable in 29th street.’ He said, ‘ *She is sound as a dollar;*but I could-not sell her at that price.’” It will readily be seen, therefore, that the statement of McManus that the mare was sound, was not made as a mere commendation of the animal or as a representation of her condition, simply, but in reply to the offer of the plaintiff to pay $450 for her, if, that is, *upon condition,*she was sound; thus making such statement of McManus, not only a part and parcel of the bargain, but a condition upon which it was to be consummated.

Ueither the decision in *Bassett*v. *Collis,*(2 *Camp.*523,) that roaring in a horse is not unsoundness, nor that in *Onslow*v. *Eames,*(2 *Starkie,*81,) where the same learned jurist arrived at a directly contrary opinion, is of any authority whatever in the case before us. Eor the question as to whether an animal thus affected is sound or unsound, is not. a question of law to be decided by the court, but a matter of fact for the jury to determine upon the evidence. If the evidence upon that subject had been submitted to the jury, on the trial of this cause, it would, I think, have been sufficient to justify them in finding that the mare was unsound, because a roarer.

Assuming, then, that the proofs were sufficient to establish a warranty and a breach thereof, the question arises whether the plaintiff, having failed to show any fraud upon *87the part of the defendant, was entitled, under the pleadings, to a verdict and judgment upon such warranty and its breach.

The *gravamen*of the action, under the allegations of the complaint, *is fraud;*the obtaining of the plaintiff’s money by a fraudulent representation and a false and fraudulent warranty. There is no averment that a warranty was made, independent of, or except as connected with, the charge of fraud in the making of such warranty. Indeed, the allegation in regard to the warranty seems to have been inserted in the complaint for the mere purpose of showing that a fraudulent representation was made on the part of the defendant, in the form of a warranty. The complaint, therefore, is based wholly upon the tort or wrong done to the plaintiff by the defendant, and not upon a contract of warranty; and so the pleader, as well as the defendant’s counsel, appears to have understood it, and the cause was evidently tried upon that theory alone. I may also add that the plaintiff’s counsel must so have continued to regard the design and effect of the pleading, up to, and upon the argument here. For he does not claim, in his points, that the plaintiff is entitled to a judgment, unless he has proven that the warranty was false; which word, as applied to warranties, is only another term for fraud or deceit. Indeed, it is quite clear that the complaint was designed and intended to embrace one, and only cause of action, to wit, a cause of action arising from the general fact that the defendant obtained the plaintiff’s money by false and fraudulent representations and statements; although, it is true, that "in the setting forth of the facts constituting that cause of action the pleader has, incidentally, mentioned the fact that the defendant’s agent warranted the mare to be sound. As the plaintiff, therefore, intended to, and did, set forth in his complaint, in a proper and connected form, such facts, only, as would constitute a cause of action against the defendant for obtaining his money by false pretenses, and tried his action upon that theory alone, I think he was properly held *88to the case he had thus made; and that he was not entitled to a judgment upon the warranty, even though sufficient facts might have been fished out of the complaint to constitute a cause of action arising from a warranty and its "breach.

But, upon a careful examination, I am satisfied that the complaint does not state sufficient facts to constitute a cause of action upon a warranty. For, after setting forth the sale and payment, the unsoundness of the mare within the knowledge of the defendant, and his concealment of that fact, the complaint avers, merely, that the defendant, “ with the intent to mislead and deceive the plaintiff, falsely represented and warranted to the plaintiff that the said mare was, in all respects, sound and in good condition, and that, by reason of the foregoing, he was *deceived*and induced to purchase and pay for the mare;” and no other or further statement touching the warranty is to be found in the complaint. There is no averment that the alleged warranty was included in, or made at the time of the sale; or of any negotiation leading thereto, or that it was founded upon any consideration whatever. For aught that appears in the complaint, therefore, the alleged warranty was a mere *nudum factum.*

For these reasons, I think, the complaint was properly dismissed.

For still another reason, I am also of opinion that the plaintiff was not entitled to a judgment upon his complaint,as it stood, without amendment, when the motion to dismiss was made, and, therefore, that such motion' was properly granted; that is to say: If the cause had gone to the jury, their verdict, if in favor of the plaintiff, would have been simply for a certain sum of money, and a judgment for that sum, with costs, would, thereupon, have been entered by the clerk without any direction from the court; and, upon such judgment, so entered, the plaintiff would have been entitled, after the return of an execution against the property of the debtor unsatisfied, to issue an execution against *89Ms person, without obtaining permission from the court, hut wholly independent of its control. (Code, §§ 386, 8, 9.) For the judgment roll would have shown, in the case supposed, by the complaint, verdict and judgment incorporated therein, and, therefore, by evidence of the highest class, the record itself, that the action was brought upon an obligation in the incurring of which the defendant was guiliy of a fraud, and that the judgment was rendered in that action. *(See Code,*§ 179, *subd.*4.) A judgment for the plaintiff, therefore, on the pleadings as they then stood, would have been a judgment that would have authorized the plaintiff to imprison the defendant on execution, in an action in which no fraud, but only a promise had been proven, although the statute declares that no person shall be arrested in a civil action, except in certain specified cases, not including actions onpromises unaccompanied by fraud. *(Code,*§§ 178, 179.) In fewer words, such judgment would have empowered the plaintiff" to do just that which the legislature has expressly prohibited; and, I may add, such power would have been conferred upon him merely because he had, in his complaint, charged the deféndant with the commission of a fraud, although he had wholly failed to sustain such charge by proofs. If that may be done, and such is to be the effect, I see no reason why the payee and holder of a promissory note, past due, may not insert in his unverified complaint, in all cases, an allegation of fraud, as well as the .usual averments, and thus entitle himself to a judgment upon which he may imprison his debtor. It seems to me that the plain object and design of the legislature in regard to the abolishment of imprisonment for debt, cannot so be defeated at the will of a pleader. Such a judgment would, in effect, work, and be a fraud upon the law.

The exceptions should be overruled, and a judgment entered for the defendant, with costs.

New trial granted.