Solomon Weight vs. J. W. & A. C. Geer, 6 Vt. 151

The opinion of the court was pronounced by Phelps, J. — The only question in this case is, whether the plaintiff having obtained a verdict against one of the defendants only, is entitled to judgment on the verdict. On the one hand, it is urged that the action being founded on a tort, it is competent for the plaintiff to take judgment against such of the defendants as are proved guilty, although all may not be convicted.

On the other hand, it is insisted that the action is founded on a breach of contract alone, and falls within the common rule as to contracts, that a recovery must be had against all the defendants or neither. Various cases have been cited in support of these different positions, among which there does not appear that perfect harmony which might be desired. If indeed the various cases are not wholly inconsistent, it must be admitted that the criteria, if any there be, which might 'serve to reconcile the'decisions, have not in the discussion of the subject been kept very distinctly in view.

To a certain extent the cases may doubtless be reconciled; and it may be well to ascertain, if it can be done by a cursory view of them, in what the inconsistency, if any, exists. In the first place, it may be observed, that the form of the action is not wholly unimportant. There are many cases, where the plaintiff has an election to declare in contract or in tort; and where by adopting one form he may join his cause of action with a count sounding exclusively in contract, and by adopting the other he may join it with one originating exclusively in tort.

In such cases, where the declaration is decidedly of one kind or the other, its form will determine the character of the action. Indeed, where such is not the case, and where an action of one kind only can be sustained, the declaration may be so decidedly of a different character in its form as to be inappropriate and unsustainable. No reason can be given in short, why the character of the declaration, if it be impressed with decided and distinctive features, is not equally decisive of the nature of the action as in other cases. These remarks may possibly serve to illustrate some of the cases. .

The case of Bosou vs. Sanford, (Salk. 440) was an action upon an express contract. The defendants are not alleged to have been common carriers, but their liability is put in the declaration upon the ground of a contract alone. It was an action of assumpsit in form. — See remarks of Ld. Ellenborough in Govet vs. Radnige, 3 East. 68. Whether the defendants were common carriers in fact, does not appear from the report in Salkeld, nor indeed wa3 it important, as the plaintiff proceeded upon a special undertaking. The same remarks apply to Slater vs. Baker et al. 2 Wilson, 359.

The plaintiff counted upon an express joint undertaking, and alleged as the ground of recovery a breach of the promise; and although there was evidence of misfeasance in the case, yet that was relied upon only as a breach of contract. Had the plaintiff declared in tort, the question would have been different. Powell vs. Layton, 5 Bos. & Pull. 365, is of the same character. The declaration proceeded upon an express undertaking; and the case is put by Ch. Ü. Mansfield upon that ground.

The case did not require a decision upon the question, whether, had the plaintiff declared in tort, upon the custom of the realm, the plea in abatement could be sustained. It is true the learned Judge discusses that question; but how far his opinion coincides with authority remains to be seen. Max vs. Roberts, 5 Bos. & Pul. 454, is so similar to the last-case as to require no further remark. The ultimate fate of this case however deserves notice.

Judgment passed at last for the defendants upon the ground that no sufficient •promise was alleged in the declaration. — (12 East. 89.) This shows that the form of the action was decisive; for had the plaintiff declared in tort against the defendants, as common carriers, upon the custom of the realm, no averment of an express undertaking would have been necessary. In Brotherton vs. Wood, 7 Com. Law Rep. 345, 5 Bro. & Bing. 54, this explanation of the above cases is sustained in terms by Ch. J. Dallas. It is said that the form of the declaration does not determine the nature of the action.

This is true in a certain sense, but not the extent contended for. It is certainly true, that the plaintiff cannot, by varying the form of his action, alter the intrinsic nature of his case. But it is also true, that the form of the declaration determines the character of the action ; and, if the action be not adapted to the case, the suit fails for that reason.^ It is not contended, that a claim arising ex contractu can be converted into a tort by the mere forms of pleading.

But it is believed that, where the party has an election to proceed as for a tort, or upon a contract, the form of the declaration determines the character and incidents of the suit. The distinction might be illustrated, by comparing the action of assumpsit on a warranty upon a sale with the action for a deceit, both of which have a common origin.

The great difficulty on this subject, however, has originated in a class of cases, where the plaintiff has declared either in tort without alleging any promise or undertaking, or has alleged a promise, but in such a manner as to leave it doubtful, upon the face of his declaration, whether a declaration in tort or contract was intended. suc'1 a case ^ie su^ject matter of the suit must be resorted to, for the purpose, first, of determining whether the action is sustainable, and secondly, if so, what proof is re<lu*s’te to sustain it.

If the declaration be in tort, and no promise is alleged, then, if upon the facts a promise is necessary, or, in other words, if an action of assumpsit only can be sustained, it would seem that the declaration is defective, and the suit must fail. This is well illustrated by the case of Max vs. Roberts, 12 East. 89.

If a promise is alleged, and yet the character of the declaration is equivocal, then again the subject matter must be resorted to; and it would seem, that if the cause of action be merely a breach of contract, the action, if sustained at all, must be sustained as an action of assumpsit and treated accordingly. On the other hand, if there be a positive tort, which might be sued for as such, it would result that the plaintiff might treat his actipn as one or the other. The case of Weall vs. King et al. 12 East. 452, is an instance of the former kind. That action was in reality founded on a warranty.

There was no ground for calling -it deceit, because no scienter was alleged or proved. A warranty in terms was proved. It was very clear therefore, that the action must be treated as a case of contract, and the court very properly held, that, as the joint contract was not proved, the action failed. A case of the latter description is that of Dickson vs. Clifton, 2 Wils. 319. — That was a case of a carrier, who suffered goods in his possession, through negligence, to be embezzled and lost. In such a case, there is no doubt'that he might be charged, either upon assumpsit or tort.

A case is there well put by Clive, J., “ Suppose I trust a shepherd with my sheep, and he puts his own dog among them, who worries them, this would be a tort, although I contract with him for wages, and he undertakes accordingly.” He might also have added, ‘Suppose I trust a carrier with my goods, and he converts them to his own use.5 Slater vs. Baker et al. is also of the same description, where an action sounding in tort might doubtless have been sustained. These cases depend, in some measure, upon the distinction between misfeasance and non-feasance.

For where the gravamen is mere non-feasance, or mere non-perform-anee of a contract, the action in general must be treated as founded in contract. Thus if a carrier receive goods to carry, and purloins them, there is a positive tort, and either trover or assumpsit will lie. If he receive pay for carrying, but neglects to call and receive them, it is a mere breach of contract. Of this character was the case of Wolcot vs. Canfield, 3 Con. R. 194, which was a case of non-feasance only. And the same remark is applicable to Bosou vs. Sanford, Powell vs. Layton, and Max vs.

Roberts, which were all cases of non-feasance. On the other hand, where there is a positive tort, actions counting upon tort have been sustained. — Govet vs. Radnidge, 3 East. 62.— Coggs vs. Barnard, Ld. Ray. 909.— Dickson vs. Clifton, 2 Wils. 319. — Mitchell vs. Tarbut, 5 T. R. 649. — Brotherton vs. Wood, 7 Com. Law Rep. 345. Another material inquiry in connexion with this question is, in what cases is it necessary to set forth a contract, in declarations of this kind ?

The general rule is doubtless this, that whenever the duty or liability upon which the action is founded, is created by the contract between the parties, the contract should be stated, as in Max vs. Roberts, Weall vs. King, &c. There are cases where the duty arises from the nature of the employment, and no contract is necessary to be stated or proved. Thus in the case of a common carrier, the law imposes the liability; and it is only necessary to state the employment of a carrier as such. An express contract is not necessary.

The rule maybe illustrated by the follovsfr. ing case : Suppose a carrier receives compensation for carrying goods, and agrees to call at a given place and receive them, and neglects to do so. Here is no liability imposed by law, and he can be made liable-only upon his. express contract. But if he receive the goods, and fail to deliver them, the ground of liability is different, and no express contract need be stated. The same rule would doubtless hold in the case of a surgeon.

With, some exceptions of this kind, the general rule holds, that where an express contract is necessary to create the liability, it must be stated. And it is agreed on all hands, that where a contract is necessary to be stated, it must be proved as laid. Hence, in these cases, if the plaintiff alleges a joint contract, and to Prove fails altogether in his action. But here the question arises, with respect to which there has ,been so much discussion in the books.

Suppose an action is brought in form in tort, upon a case of this kind, where no contract need be set forth, and where the tort consists in neglect or breach of duty, can the plaintiff recover against one of two joint defendants, without proving-a joint contract? Or if one only is sued, can the non-join-der of another equally liable be pleaded in abatement? On the one hand, we have the cases of Powell vs. Layton, Max vs. Roberts, and Buddle vs. Wilson, 6 T. R. 369; and on. the other, Dickson vs. Clifton, Mitchell vs. Tarbut, Govet vs. Radnidge, and Brotherton vs. Wood.

The two first of these cases I have already remarked upon, as reconcileable with the other cases, upon the ground that they turn upon the form of the declarations, which count upon an express contract; although it is true, that the opinion of Sir James Mansfield was decidedly against the authority of the latter cases. Bosou vs. Sanford was also an action of assumpsit, not counting against the defendants as common carriers upon the eustom of the realm. Buddie vs. Wilson was an action against carriers upon the custom of the realm, and the authority of that case conflicts most decidedly with Govet vs.

Radnidge, Mitchell vs. Tarbut, and Brotherton vs. Wood. The decision of Ld. Kenyon in Buddie vs. Wilson was predicated expressly upon the case of Bosov, vs. Sanford,. and its accuracy depends upon the pertinency of that authority. If there be any thing in the distinction attempted' to be made between an action upon an express contract and one upon the custom of the realm, the cases are dissimilar. Buddle vs. Wilson is the only case cited, which is not reconcileable with Brotherton vs. Wood, and similar cases, upon the grounds taken by Ch. J. Dallas, in the latter- case.

I lay out of the question the case of Weall vs. King, because there is nothing in that case but the-express warranty to sustain the action- Upon the score-of authority, therefore, we have the single decision of Ld. Kenyon opposed to the cases of Mitchell vs. Tarbut, Govet vs. Radnidge, and Brotherton vs. Wood. The authority of Govet vs. Radnidge has been doubted ; but, if we consider it analogous to the other cases already cited, where similar decisions were had, it seems well supported.

If there be any doubt of the correctness of that case, it would seem to me to arise out of the question whether a contract, or undertaking of some kind, ought not to 'have been alleged. In this particular, that case and Coggs vs. Barnard seem to be anomalous. The latter case, however, appears to sustain the former in this respect, and if it be conceded that an. action can be sustained in such case, without such an allegation, and upon the same ground that it may be sustained against a common carrier, the same consequences must necessarily follow.

Upon principle it appears to me, with due deference to the learned Judges, that the doctrine of the recent case in 7 Com. Law Reports is correct. For if a contract is not necessary to be alleged, nor proved, I cannot well perceive how any question of variance can arise, nor indeed how the precise terms of the contract are important. If the ground of the defendant’s liability is a mere duty, and a tortious disregard of it, it would seem not to vary the ground, if a similar duty rested upon another.

In applying these doctrines to the case before us, we may remark, first, that it would follow from the cases of Coggs vs. Barnard and Govet vs. Radnidge, as also from the analogy of the other cases, that the action as for a tort might be supported. The waste of materials, arising from the mismanagement of the defendant, is a positive injury growing out of a neglect or breach of duty, rather than a mere non-performance of the terms of the contract. Whether it was necessary, in this instance, to set forth a contract between the parties, is a question not so easily decided.

We are of opinion however that it was; because we consider that the obligation or duty of the defendant rested wholly upon the contract. It is not a case where the mere employment of the party could create any definite obligation. The case of an ordinary mechanic is not like that of some other professions. The liability of such persons depends upon what they undertake. The defendant might have been employed upon the mill in question as a mere laborer in the way of his vocation.

In order to render the defendant responsible for the success of the entire work, it should at least appear, that he had the oversight and direction of it; and of course it becomes necessary to set forth the contract by which he assumed that oversight and responsibility. The injury complained of is the imperfection of the whole; and the first question is, who is responsible ? Not certainly every individual who was employed about the edifice, but he who had assumed the responsibility. The contract being alleged, and being an essential part of the declaration, it becomes necessary to prove it as alleged.

The case of Bristow vs. Wright, Doug. 665, is a leading case on this subject. The lease set forth in that'case, might perhaps have been dispensed with, but being alleged, it became necessary to prove it as laid ; and there being a variance, the court held it to be fatal. The remarks of Ld. Ellenborough in Weall vs. King are applicable to this case. Upon the whole, although we are inclined to think that this action might be treated as sounding in tort, yet as in Bristow vs. Wright (which was tort) the statement of. the contract is material, and the variance is fatal.

It would be idle to send the case back for a new trial, as the verdict in favor of A. C. Geer, one of the defendants, cannot now be disturbed; and so long as that remains, the plaintiff must necessarily fail. The judgment against J. W. Geer is reversed, and judgment entered for the defendant.