Proofs. of the contract, has a power to rescind the contract by his own act, and does that act for the purpose of rescinding it, (as, where together with the warranty there is a power given to the buyer to return the horse within a certain time, if he disapproves of it, and he accordingly offers to return it to the seller, who refuses to receive it,) there the contract is determined by the single act of the buyer, and the buyer will be entitled to recover back the whole purchase-money in an action for money had and received.(1) In this action upon the warranty, the sale of the horse and an express warranty must be proved: the notion of a high price being tantamount to a warranty has been long exploded.(a) A written receipt for the price, containing the warranty, is admissible in evidence, stamped as a common receipt without an agreement-stamp.(2) There must also be positive proof of the unsoundness at the time of the warranty; a suspicion of unsoundness is not sufficient.(3) (1) See the cases, Power v (2) See 1 vol, p. 562. Skrine ▼ Elmore, 2 (ampb. 407. (3) Eaves v Dixon, 2 Taunt. 343. (a) No custom or usage is admissible to shew that the sale of any particular article implies a warranty of the goodness of that article. Thompson v Ashton, 14 Johns. Rep. 316. Though in an action founded on a warranty of the soundness of a chattel, it is necessary to prove the warranty, yet, it is not necessary for the plaintiff to shew that the defendant made the warranty in express words. Chapman v March, 19 Johns. Rep. 290. Spencer, Ch. J. in delivering the opinion of the Court says, "In every action on a warranty, it must be shewn that there was an express and direct affirmation of the quality and condition of the thing sold, as contra-distinguished from opinion, &c. and when that is made out, it would be an anamoly to require that the word warrant should be used. Any words of equivalent import, showing the intention of the parties that there should be a warranty will suffice." Vide further Kimmel v Lichty, 3 Yeate's Rep. 262. Searing v Lum, 2 Southard, 283. Mead v Crane, ib. 852. To con stitute an express warranty, it is essential that the affirmation at the time of sale should be intended as a warranty; otherwise it is only matter of judgment or opinion. Swett ▾ Colgate, 20 Johns. Rep. 196. As the breach of the warranty is the foundation of the action, the fact of the defendant having known of the unsoundness, at the time of the warranty, need not be averred, and, if averred, need not be proved.(1) A charge for keeping the horse is commonly inserted in the declaration; to recover damages on this account, the plaintiff ought to shew, that he offered to return the horse on discovering its unsoundness; otherwise he treats it as his own property, and ought to maintain it at his own expense.(2) If A. sell a horse with a warranty of soundness to B., who shortly afterwards sells the same horse with a similar warranty to C., and C. brings an action against B. for a breach of the warranty, on the trial of this action A. is not a competent witness for B. to prove the soundness; for if B. fail in the action, after giving notice of it to A., he may sue A. for the costs as for special damages, having been induced by A.'s warranty to warrant the horse to C.(3) Fourthly, of the evidence in assumpsit on a special contract for goods sold, &c. (a) The averments in the declaration in an action on a special assumpsit will vary with the nature of the contract. It will be necessary, in all cases, to state the consideration on which the contract is founded, the contract itself, and the breach of the contract by the defendant. In some cases, it will be necessary to aver, in addition to such gene (1) See 1 vol. p. 221. Williamson v Allison, 2 East, 446. (2) Caswell v Coare, 2 Campb. 82. 1 Taunt. 566. S. C. (3) Lewis v Peake, 7 Taunt. 153., an action by C. against B. on the warranty, and to recover the costs of the former suit. Witness. 80 Special as: sumpsit for sale of goods, &c. (a) As to the distinction between a sale, and a delivery of goods to sell on commission, see Marsh v Wickham, 14 Johns. Rep. 167. Proof of con tract. 81 ral statements, a performance of all that was requisite on the part of the plaintiff, or a readiness and offer to perform, or a legal excuse for the non-performance. An averment also that the defendant had notice of a fact previously stated, or that he was requested to perform his part of the contract, is frequently necessary. The propriety of introducing such averments must obviously depend upon the nature of the specific contract, which is the subject of the action. (a) Several cases have been mentioned in the former volame, in which the agreement is required to be in writing;(1) and in all those cases, if the form of the issue is such as to make it necessary to give evidence of the agreement, a written agreement must be regularly proved.(b) The rule is the same in other cases, where the contracting parties, however unnecessarily, have contracted in writing. The contract is sometimes admitted on the record, as, by a judgment by default, or by payment of money into court, (c) or by confining the issue to some collateral point; (1) As to the cases, where a written memorandum of the agreement is required by the stat. of Frauds, see 1 vol. p. 461. As to the proof of agreements, see 1 vol. p. 504. (a) of the declaration on a contract, see Dunl. Pr. 250 to 253. Of setting forth the consideration, Dunl. Pr. 254, 255. Of averment of performance, Dunl. Pr. 256, 257, 258. Of readiness and offer to perform, Dunl. Pr. -259 to 262. Of averment of excuse for non-performance, Dunl. Pr. 260. 62. Of request, Dunl. Pr. 262. Of averment of notice, Dunl. Pr. 263. Vide post, p. 8, in notis. (b In a case in the Court of Errors of the state of New-York, the question arose as to the sufficiency of a writing made with a lead pencil; and it was held, that a memorandum of a contract for the purchase of goods, written by a broker employed to make the purchase, with a lead pencil, in his book, in the presence of the vendor, the names of the vendor and vendee, and the terms of purchase being in the body of the memorandum, but not subscribed by the parties, is a sufficient memorandum within the statute of frauds. Clason's ex'rs v Bailey and others, 14 Johns. Rep. 484. (c) As to admission by suffering a default, see Dunl. Pract. 385. 395. By payment of money into court, Dunl. Pract. 421, 422. Johnston v the Columbian Ins. Co. 7 Johns. Rep. 315. and such admissions will dispense with all proof of the agreement.(1) But the general rule is, that a written agreement, if to be proved at all, can only be proved by writing, or by secondary evidence of the writing, where secondary evidence is allowed.(2) Another rule, to be observed is, that where a written contract must be proved, the writing ought to be properly stamped, if any stamp is necessary. There are several exemptions in favour of agreements, which have been already noticed: the principle of these, which applies to the subject now under discussion, is the exemption of any "memorandum, letter, or agreement made for, or relating to, the sale of any goods, wares, or merchandize."(3) The contract proved, ought to agree in substance and effect, with the contract set forth on the record. (a) They need not be co-extensive: the written contract generally comprises much more than is expressed in the pleadings, for it is sufficient to state only so much of the contract, as shews the particular promise, upon which the plaintiff grounds his action.(4)(6) But, though not co-extensive, they must be consistent; in other words, there must be no contrariety between the statement and the proof, with (1) As to the effect of judgment by default, see 1 vol. p. 197. and of payment of money into court, 1 vol. p. 198, (2) Upon this subject, see 1 vol. p. 233. 485. (3) On this exemption, see 1 vol. p. 36.. (4) 4 Taunt. 287. (a) Vide Crawford and others v Morrell, 8 Johns. Rep. 253. Umberbocker v Rassel, 3 Yeates' Rep. 339. ib. 444. (b) Vide Bristow v Wright, Doug 665. 2 Caines Rep. 120. 4 Campb. 20. Dunl. Pr. 251. 252. "Tryon v "right, Peters Rep. 96. But the whole of the consideration of a parol agreement must be stated, although consisting of several parts. 6 East's Rep. 564. 3 Caines Rep. 286. 12 East's Rep. 3 Cro. Eliz. 79. ca. 44. 9 East's Rep. 9. 13 East's Rep. 15. n. c. And although it may be in the alternative. 2 Bos. & Pull. 119. 2 East's Rep. 4. 1 New Rep. 351. Proof of aver ment. 82 respect to any qualification or condition annexed to the contract.(1) An unwritten contract may be proved in various ways as by proof of the defendant's admission, by an agent employed to make the contract, or by some persen present when the the contract was made. Immaterial averments, which might be expunged from the record without affecting the plaintiff's right of action need not be proved.(2)(a) In the case of an averment of a promise to pay a sum of money on request, in consideration of money lent, goods sold, &c. where the consideration of the promise is not collateral, but founded on that part of the contract which is to be performed by the defendant, the request need neither be averred, nor proved; the bringing of the action being considered a sufficient demand.(b) But all material averments must be proved; as, where the performance of the contract by the defendant is to depend on the previous performance of something by the plaintiff, (c) or where the performance on both sides is (1) Wildman v Glossop, 1 Barn. & Ala. 12. And see, as to variance in the proof of contracts, 1 vol. p. 222. (2) See 1 vol. p. 222. (a) Vide Panton v Holland, 17 Johns. Rep. 92. United States v Burnham, Mason, 57. (b) When a request is not parcel of the contract, or the action is founded upon a precedent debt or duty, as to pay a bond, or against the maker of a promissory note, or for the price of goods sold, or for money paid by mistake, the request is usually alleged generally, that the defendant licet saepius requisitus, &c. and in these cases no demand or request need be proved: nor is it necessary to lay even a general request, for the bringing of the suit is itself a sufficient request. 1 Saund. 33. n. 2. 2 Saund. 118 n. 3. Plowd. 128. 1 Wils. 33. 2 H. Black. Rep. 131. 1 Johns. Cas. 99. 319. 7 Johns. Rep. 462. 3 Maule & Selw. 150. Utica Bank v Van Gieson and others, 18 Johns. Rep. 485. (e) Vide Burrill & Cahoon v Cleeman, 17 Johns. Rep. 72. 2 Gallison, 73. Gray & Osgood v James et al. Peters Rep. 476. Dani. Vr. 255. Ante p. 63, in notis. |