Opinion of the Court.

plaintiff was clearly entitled to go to the jury on the issue as to an express warranty. But he was, in effect, denied that right by the instruction that he could not recover in this action, unless he proved a scienter. It is true his pleadings also contained every allegation essential to support an action for deceit, apart from the issue as to express warranty. But the cause of action in tort for the breach of the express warranty was not obliterated, or removed from the case, because it was joined with a cause of action for deceit.

In Schuchardt v. Allens, 1 Wall. 359, 368, which was an action on the case for a false warranty on the sale of certain goods—the declaration also containing a count for deceit — the court said that it was now well settled, both in English and American jurisprudence, that either case or assumpsit would lie for a false warranty, and that, "whether the declaration be in assumpsit or tort, it need not aver a scienter; and if the averment be made, it need not be proved." It was also said, that, "if the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action." See also Dushane v. Benedict, 120 U. S. 630, 636. In 1 Chitty's Pleadings, 137, the author says, that case or assumpsit may be supported for a false warranty on the sale of goods, and that, "in an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the declaration, nor, if charged, could it be proved." In Lasseter v. Ward, 11 Iredell Law, 443, 444, Ruffin, C. J., citing Stuart v. Wilkins, Doug. 18, and Williamson v. Allison, 2 East, 446, said: "It was accordingly there held that the declaration might be in tort, without alleging a scienter, and, if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is, that, when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort, as well as ex contractu, on false warranties." And so in House v. Fort,

Syllabus.

Blackford, 293, 295, it was said that "the breach of an express warranty is of itself a valid ground of action whether the suit be founded on tort or on contract;" and that, "in the action on tort, the forms of the declaration are, that the defendant falsely and fraudulently warranted, &c., but the words falsely and fraudulently, in such cases, are considered as only matters of form." But as to the scienter, the court said, "that is not necessary to be laid, when there is a warranty, though the action be in tort; or, if the scienter be laid, in such a case, there is no necessity of proving it." See also Hillman v. Wilcox, 30 Maine, 170; Osgood v. Lewis, 2 Harr. & Gill, 495, 520; Trice v. Cockran, 8 Grattan, 442, 450; Gresham v. Postan, 2 Car. & P. 540.

As the evidence entitled the plaintiff to go to the jury upon the issue of express warranty as to the genuineness of the bonds and coupons, and as the jury were in effect instructed that he could not recover, unless upon allegation and proof of the scienter,

The judgment is reversed, and the case is remanded, with instructions to set aside the judgment and grant a new trial.

MR. JUSTICE FIELD dissented.

SUN INSURANCE CO. v. KOUNTZ LINE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Argued January 17, 18, 1887.- Decided May 23, 1887.

A person who conducts himself with reference to the general public in such a way as to induce others, acting with reasonable caution, to believe that he is a partner in a partnership, is liable as such to a creditor of the partnership who contracted with it under such belief, although he is not in fact a partner.

The defendants in error so conducted themselves towards the general public, in their business relations with each other, as to induce a shipper,

Statement of the Case.

acting with reasonable caution, to believe that they had formed a combination in the nature of a partnership, or were engaged as joint traders, under the name of the Kountz Line.

THIS was a libel in admiralty and in personam. The libellants were insurance companies, which issued policies covering certain produce and merchandise delivered, May 21, 1880, on board the steamboat Henry C. Yeager, at St. Louis, Missouri, for transportation to the city of New Orleans and other ports on the Mississippi River; which cargo was lost by the sinking of the boat the day succeeding its departure from St. Louis. The Yeager was unseaworthy, both at the commencement of her voyage and at the time of the loss. The sinking and the loss were the direct consequence of such unseaworthiness.

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The libellants having paid to the owners of the cargo the damages sustained by them - $31,720.10 and having been subrogated to all the rights and claims of the latter on account of such loss, brought this suit against the appellees jointly to recover the amount so paid. In the District Court, the attachments sued out by the libellants were discharged, and the libel dismissed. In the Circuit Court, it was adjudged that there was no joint liability on the part of the respondents, or any of them, and that liability for the loss of the cargo was alone upon the Yeager, and her owner, The H. C. Yeager Transportation Company. As to all the other respondents, the libel was dismissed. Of that decree the libellants complained, the principal assignment of error being that the court erred in not holding the respondents, or some of them, jointly liable for the loss of the cargo.

The general ground upon which this contention was placed was that the shipment of May 21, 1880, on the Henry C. Yeager was a part of the general business of transportation, in which The II. C. Yeager Transportation Company, The C. V. Kountz Transportation Company, The K. P. Kountz Transportation Company, and The M. Moore Transportation Company, were jointly engaged under the name of the "Kountz Line," and, consequently, that said companies were jointly liable for the loss and damages in question. The de

Statement of the Case.

cree below proceeded upon the ground that said companies were not jointly engaged in business, and that the loss must be borne entirely by the company owning the Henry C. Yeager. Citizens' Ins. Co. v. The Kountz Line, 4 Woods, 268.

The determination of the question of joint liability depended upon the facts set out in the finding by the Circuit Court. Those facts-preserving, in the statement of them by this court, substantially, the language of the court below as follows:

were

In June, 1872, William J. Kountz, John W. King, W. W. Atex, and Charles Scudder organized, under the laws of Missouri, a corporation by the name of the Kountz Line, of which they were to be, and did become, directors for the first year; and of which Kountz was president and King general agent. Its capital stock was fixed at fifteen thousand dollars, divided into shares of one hundred dollars each. The declared object of the corporation was to build or purchase, use or employ, one or more wharf-boats for the use of steamboats and other vessels belonging to the stockholders of the company; to build, purchase, or charter steamboats, towboats, etc., for transporting freight and passengers on the Mississippi River and its tributaries; and do a general river business. It does not appear that the Kountz Line corporation owned, at the time of the shipment on the Yeager, or at any time during the year 1880, any steamboat or other water craft, except a wharf-boat at St. Louis.

In a few months after the organization of that corporation, to wit, on the 13th of November, 1872, Kountz, King, and one Sheble organized, under the laws of Missouri, the four transportation companies above named, of each of which Kountz and King were chosen directors, and King treasurer and secretary. Kountz, King, and Sheble, Charles H. Seaman, H. K. Haslitt, and W. P. Braithwaite, having interests, as owners, respectively, in the steamboats Henry C. Yeager, Carrie V. Kountz, Katie P. Kountz, and Mollie Moore, transferred the same, by bills of sale, as follows: The Henry C. Yeager, to The H. C. Yeager Transportation Company; the Carrie V. Kountz, to The Carrie V. Kountz Transportation

Statement of the Case.

Company; the Katie P. Kountz, to The K. P. Kountz Transportation Company; and the Mollie Moore, to The M. Moore Transportation Company; the vendors receiving, in consideration of said transfers, stock in the respective transportation companies.

Of the stock of the Kountz Line corporation, on the 6th of July, 1874, William J. Kountz owned two shares; King, D. C. Brady, Van Hook, and C. H. Seaman, one share each; the steamboats John F. Tolle, Henry C. Yeager, Mollie Moore, and Carrie V. Kountz, thirty-six shares each. There was no change in the ownership of such stock by those steamboats up to the commencement of this suit, except that the shares held by the John F. Tolle belonged to the steamboat J. B. M. Kehlor, when, on September 14, 1878, the latter was transferred to The M. Moore Transportation Company. W. J. Kountz never, at any time, owned more than two shares in the Kountz Line corporation, and was a stockholder in all of the transportation companies.

On the 15th of January, 1873, W. J. Kountz owned 398 shares, and King and Sheble each one share of the stock of The M. Moore Transportation Company. But, on December 19, 1879, the stock of that company was held as follows: Katie P. Kountz, a daughter of W. J. Kountz, 397 shares, and Kountz, King, and Rogers each one share. November 4, 1878, Katie P. Kountz held 241 shares, her father and King each one share, and Braithwaite 56 shares, in The K. P. Kountz Transportation Company. December 19, 1879, Katie P. Kountz held 379 shares, and her father, King, and Rogers each one share in The H. C. Yeager Transportation Company. On the 21st of May, 1880, of the stock of The C. V. Kountz Transportation Company, Katie P. Kountz held 323 shares; Clement Seaman 74 shares; and her father, King, and C. H. Seaman each one share. No subsequent transfers of stock in any of these companies were made, and, at the time of the shipment on the Yeager, "the stock in no two of said companies was held by the same person."

It thus appears that, at the time of the shipment on the Yeager, almost all the stock of these transportation companies stood in the name of a daughter of William J. Kountz.