22 Kan. 296 | Kan. | 1879
The opinion of the court was delivered by
No cause of action was made out by the evidence, and the court properly sustainéd the demurrer. If
Counsel for plaintiff urge in support of his claim for damages, that where a contract creates a duty, the neglect to perform that duty, as well as the negligent performance of it, is a ground of action for tort — hence it is at the election of the party injured to sue either on the contract or the tort; and then argue that, as the company accepted the deed, it was bound to construct the wagon-road in a reasonably safe manner, and having neglected to perform that duty, it.was re
Notwithstanding the defendant is not liable in this action, the plaintiff had, long prior to this suit, his cause of action against the company for its refusal to build the wagon-roads on the pieces of land conveyed for right of way. He might, perhaps, have brought his action to compel the company to construct suitable roads. He certainly could havembtained pecuniary compensation, in the way of damages, for the breach of duty on the part of the. company in not performing the conditions of the deed.
On account of the negligence of the plaintiff, the other allegations of error are immaterial, and need not be discussed.
The judgment of the district court will be affirmed.