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27 Vt. 720

Goodenough v. Snow

Supreme Court of Vermont

Decided April 15, 1855

Supreme Court of Vermont · decided 1855-04-15

Declaration. Action on the case. After a trial by jury which resulted in a verdict for the plaintiff, in the course of which exceptions were taken, which do not appear to have been relied upon in the supreme court, the defendant filed a motion in arrest, on account of the insufficiency of the declaration. The county court, March Term, 1854, — Poland, J., presiding, — overruled the motion in arrest to which the defendant also excepted.

Relies on Vail v. Strong · Beeman v. Buck

Good law ✅— No negative treatment on recordhow we know

Decided 1855-04-15

How this case has been cited

Cited by 3 later decisions — most recently September 1960

3 state decisions

10185518601870188018901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The opinion of the court was delivered by

Isham, J.

¶2The only question which has been raised in the argument of this case arises on the motion in arrest. The action is in case, in form ex delicto ; in which the plaintiff complains of a fraud, deceit and false warranty in an exchange of horses with the defendant. The principles governing the rights of parties, in cases of this character, seem to be well settled in this state by former decisions. When, on a sale or exchange of property, false representations have been made, but no warranty, a scienter must be avered in the declartion and proved on the trial. If a warranty was made, and that warranty is false, this form of action can be sustained, as well as assumpsit, and in either mode, a scienter need not be averred; or if averred, need not be proved. Doug. 18. 2 East. 451. 1 Chitty on Plea, 139. From the case of Vail v. Strong, 10 Vt. 457, it seems now settled, that the party may so frame his declaration as to be adapted to either mode of proof. If the declaration is in case for a false warranty, and a scienter is averred, the party may recover on proof of the warranty and its breach, without the proof of a scienter; or if the party fails in the proof of the warranty, and can prove a scienter, he may recover for a deceit. As observed by Judge Phelps in the case referred to, the declaration, in that form, has a two fold aspect; *722and from the case of Weall v. King, 12 East. 452, and Beeman v. Buck, 3 Vt. 53, such would now seem to be the approved mode of declaring.

¶3In this case the declaration, as to the sufficiency of its averments has pursued the form as given and sustained in the case of Beeman v. Buck, 3 Yt. 53, and in setting forth the contract and its breach, has adopted the language as used in Weall v. King, 12 East. 452. The contract or bargain for an exchange of horses, the mutuality of that contract, the false warranty and scienter, are facts substantially averred in the declaration, and on general demurrer would be admitted to be true. The question is not whether those facts are formally alleged, but whether they are substantially averred though informally; if so, the declaration will be good on general demurrer, and particularly so on a motion in arrest.

¶4The judgment of the county court must be affirmed.

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