Corwin & Corwin v. Davison

Headnote

Precedent of a declaration for fraud in the sale of a , chattel, both as to form and substance. In declaring for fraud in representing a machine, on sale of the patent right, as Capable, if1 Constructed and worked ak described by ibe'defendant, of performing a certain quantity of .labor, and averring that though so ‘ constructed it would not perform thé'work5-; it* is uhnecessary to’ sbt ’forth 'the manner of the construction. The consideration fof the sale need not be set forth particularly.-i It is enough to say a valuable consideration was paid, or that the plaintiff satisfied the defendant, without any thing more.' It is1 enough* to tiver that5^thé'’defendant 'defrauded the pláintiff, without growing the means he used. . In declaring for a fraud in the sale of a chattel, it is not necessary to set out either th« contract or consideration. 'Adjtidged'tin spedial demurrer. 1 •

-On depmrr.erJo the.dpdlqTaJipn. -iThe plaintiffs.declared jn case,.“ for that whereas the defendant, on, &p.,.at, &c., ■' ■ - ..........•

-right and liberty of making,, constructing, using and vending :,a certain flax =and:hemp"dressing¡maehme,-within" the counties of Orange and ¡Rockland, &c., he,¡the said, defendant,.then.anddhereprofessing to havedull-power and lawful authority in him vested, - to .make, .use and vend inthe UnitediStatesrof, America, the-saiE machine, and.the right and liberty of making, • constructing, using .and -vending the same; and then and there falsely and fraudulently affirmed, that.the said machine, when constructed in manner-byhim particularly mentioned, would, with the assistance or-help of two men,(break 500 weight,of flax or ¡hemp .in a day, and dress -200 weight of the same "at the same time, and thereby caused and induced.the said plaintiffs:to ¡purchase of -him, the said defendant, the exclusive right and liberty of making, constructing, using,.and .vending to others -to ¡be used, the said flax and ;hefmp dressing machine, within-the-counties of Orange -and Rockland. And the said plaintiffs, confiding in the said-affirmation-of the said-defendant, purchased of him, the-said-defendant,ior .themselves, theirheirs, executors, &c. the Ml and .exdlusive right and liberty -of making, constructing, using, and -vending .to others to -be used, the said machine, within the counties of -Orange and Rockland, &c. -and .-satisfied ¡him therefor. Whereas, -in truth ¡and ¡in -fact, at the 'time .df the affirmation and -sale aforesaid, to wit, at ;&c. the said flax -and ¡hemp ¡dressing machine, when constructed -in the ¡manner by him particularly mentioned, would not with the .assistance -pr help df two men, .break 500 weight of flax or hemp.in a-day, and dress 20.0 weight of the same at the same *time; but -on -the contrary thereof, the said machine, when constructed -in manner by him, the said defendant, mentioned, was altogether ¡useless, ¡and ¡the defendant then and there well knew the same. By reason of which false and fraudulent assertion and ¡affirmation, the said defendant, on, <fcc., at &c. falsely and fraudulently -deceived them, the -said plaintiffs, on the aforesaid sale, and thereby the right and liberty of making, constructing, using, and vending to others to be intexiding to~deceive axul defraud~the~said~p1aintiffs,;did ~n-courage them to purôhase of iiim, the~said d~fendant, the

used the said machine, became of no use or value to the said plaintiffs; and thereby the said plaintiffs were then and there, and have at all times since, been put to great charge and expense of their money, and to great loss and expense of their time in and about constructing said ma chine, and in and about the purchase as aforesaid of the right and liberty of making, constructing, using, and vending to others to be used the said machine, in the whole amount to a large sum of money, to wit, &c. $700, to wit, at, &c.”

“ And whereas also the said plaintiffs, on, &c. at, &c. at the special instance and request of the said defendant, bargained with the said defendant to buy of him the said defendant, the exclusive right and liberty of making, constructing, using, and vending to others to be used within the counties of Orange and Rockland, in, &c. a certain other flax and hemp dressing machine, which he, the said defendant then and there professed to have full power and lawful authority in him vested as the patentee of the same, to malee, use and vend in the United States, and for which the said plaintiffs were to pay a valuable consideration: And the said defendant, by then and there falsely and fraudulently warranting and representing the said machine, when constructed, to be capable, with the help or assistance of two men, to break 500 weight of flax or hemp in a day, and dress 200 weight of the same, at the same time, then and .there sold to the said plaintiffs the full and exclusive right and liberty of making, constructing, using and vending to others to be used, the said flax and hemp dressing machine, within the counties of Orange and Rockland, in, &c. for a valuable consideration to him then and there paid by the said plaintiffs. Whereas; in *truth and in fact, at the time of the said sale and warranty, and at all times afterwards, the said machine, when constructed, would not, with the assistance, &c.” (negativing substantially, as in the first count, the power of the machine, in the words of the warranty.) “ But on the contrary thereof, the said machine, and the right and liberty of making, constructing, using, and vending to others to be used the said machine was

altogether useless to the said plaintiffs, and has from thence hitherto so remained and continued. And the said plaintiffs in fact further say, that the said defendant by means of the premises, on, &c. at, &c. falsely and fraudulently deceived them, the said plaintiffs, on the sale of the right and liberty of making, using, and vending to others to be used, the said machine as aforesaid, whereby the.saíne became of no use or value to the said plaintiffs ; and thereby also, the said plaintiffs were then and there put to great expense, &c.” (residue as in the first count, and concluding in damages $700, in the whole.)'

Special demurrer, assigning for cause as to the first count,

1. That it does not state in what manner the defendant represented that the machine ought to be constructed in order to perform the quantity of labor represented.

2. The plaintiffs charge the defendant with representing that he had power to make, &c. and vend to others, &c. and the right and liberty of making, constructing, &c.; and that he thereby defrauded the plaintiffs ; and the plaintiffs do not show whether they intend to charge the defendant with having such authority or not.

3. The plaintiffs do not show how much they paid the defendant.

4. The plaintiffs do not show how the defendant deceived and defrauded them, and in what particular, and by what ways and means they were put to great expense and trouble of time, labor, and money.

As to the second count, the demurrer assigned the following causes ; 1. The plaintiffs do not set forth whether the defendant deceived them in representing that the machine would perform a certain quantity of labor, if constructed in *a particular manner, or whether the defendant deceived them as to his right or power to sell, or upon which or what account he deceived them.

2. They do not describe in what manner the defendant said they must construct the machine in order to perform the prescribed work.

3. They do not state how or for what purpose they were induced to incur their alleged expense of money

and -time, -or ;to .what .purpose .the:time-ana-money -.were . - - r r - V •applied.

Joinder in-demurrer.