Chapman v. Murch

acüonYomided of the’TouS ness of a chattel by the venUofv it is necesth7 xy°arian°t™ cesVaVy "or thé fhauhidefenY warrmuylnlYEYanyYepre«eutation thin^ief°ndanty or a direct and mationby him, and'Yonditior^ tentYonSto wLrsufficient'11 be

IN ERROR to the Court of Common Pleas of Wash-*nEton county. Chapman brought an action of assumpsit against March in the Court below. The declaration stated, ,, , , . . 7 that the defendant, on the 1st of December, 1818, in consideration that the plaintiff would deliver to the defendant, a certain horse óf the plaintiff, of great value, in exchange for a certain horse of the defendant, the defendant undertook and promised, that the horse of the defend-an* was t^ien anc^ there sound, &c.; that the plantiff confiding the said promise of the defendant, delivered to him the sa,a horse of the plaintiff, in exchange for the defendant’s horse, &C. Yet the defendant, 8zc. fraudulently, ,&c. did not perform or regard his said promise, &tc., for that the horSe of the defendant was not sound, but, on the contrary was unsound, and had a certain disease, called the yellow wa*er) °f which he afterwards, to wit, on the second day of December, 1818, died, whereby, &c. The defendant pleaded the general issue, and on the trial of the cause, the plaintiff offered to prove, that the parties exchanged horses; that the plaintiff let the defendant have a horse ■worth one hundred dollars, in consideration of which the defendant let the plaintiff have another horse, which the defendant, at the time, represented to be sound ; that the. horse of the defendant, _ so delivered to him in exchange, was not sound, but that he had the disease, called the yellow water, which rendered him useless and of no value, and that he died the next day. The evidence so offered was objected to by the defendant’s counsel, and rejected by the Court, on the ground, that this being an action of as~ sumpsil founded on á warranty of the soundness of the horse, the plaintiff, in order to entitle himself to a recovery, was bound to prove an express warranty, and that the testimony offered by the plaintiff did not amount to such a warranty-. A bill of exceptions was taken to the opinion of the Court, on which the writ of error was brought. The case was submitted to the Court without argument, on a statement of the points and authorities. Pealce's Evid. 279. (229.) 3 Esp. JV*. P. Rep. 72. 2 Esp. JV\ P. Rep. 673. 3 Campb. JV". P. Rep. 556. %Rl. Com. 451. 3 El. Com. 166. 1 Moore, 109. IQ Johns. Rep. 109. 2 East, 314. 2 Caines, 48. 1 Johns. Rep. 274. 4 Johns. Rep. 421« 5 Johns. Rep. 354.