Thе appellant, Freeman-Darling, Inc. (hereinafter Freeman), initiated this cause of action seeking the recovery of damages from defendant-appellee Andries-Storen-Reynaert Multi Group, Inc. (hеreinafter ASR), due to ASR’s allegedly negligent failure to properly perform its contract with the State of Michigan. The trial court granted the appellee’s motion for summary judgment pursuant to GCR 1963, 117.2(1). The resulting appeal is as of right.
The instant case arose out of the construction of the Ypsilanti Correctional Facility by the State of Michigan under a "multi-prime” contract arrangement. Under this plan, rather than hire a general contractor to coordinate the construction, the state awarded nine different contracts covering various phases of the facility’s construction. Each of the nine contractors еntered into separate contracts directly with the state.
Under the terms of its contract with the state, ASR was required to furnish special locking hardware for a security system to be built into the facility’s administrative/mediсal building. The basis of Freeman’s complaint against ASR was that, in selecting a subcontractor to perform the installation of the security locking system, ASR caused an unreasonable delay which affected Freеman’s ability to proceed with and fulfill its own contractual obligations. In causing the work delay, it was alleged that ASR breached certain duties owed to *284 Freeman, to-wit: the duty "to perform its work in accordance with the expressed and implied terms and conditions of defendant ASR’s contract with the Owner [the state]”, and the duty "to refrain from taking actions, inactions, and making omissions, which a similarly situated construction contractor would know, and otherwise should know, would injure plaintiff and plaintiff’s conduct and execution of its work pursuant to plaintiff’s contract with the owner”.
In essence, the theory upon which Freeman seeks to recovеr against ASR is the "negligent interference with a contractual relationship”. We are therefore presented with an action in tort based upon the defendant’s failure to perform its contract with a third party. The issue to be resolved, then, is whether Michigan recognizes such a cause of action.
Appellant Freeman begins its argument on appeal by citing two Michigan Supreme Court cases,
Clark v Dalman,
The distinction between the above-stated propo
*285
sitions, although difficult to make, is significant. The concepts with which we are concerned were fully explored by the Supreme Court in
Hart v Ludwig,
" 'The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise, the failure to meet a note, or any other prоmise to pay money, would sustain an action in tort for negligence, and thus the promissor be made liable for all the consequential damages arising from such failure.
" 'As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. In the case at bar, the utmost shown against the defendant is that there was unreasonable delay on its part in performing an executory contract. As we have seen, it is not liable by reason of the relation of lessor and lessee, but its liability, if any, must rest solely upon a breach of this contract.’ ” Hart, supra, p 563.
The Court went on to identify the important distinction as being one of misfeasance, which may support an action in either tort or contract, and nonfeasance of a contractual obligation, which *286 gives rise only to an action on the contract. The Court elaborated as follows:
"There are, it is recognized, cases in which an incident of nonfeasance occurs in the course of an undertаking assumed. Thus a surgeon fails to sterilize his instruments, an engineer fails to shut off steam, Kelly v Metropolitan R Co, [1895] 1 QB 944 (72 LT 551), a builder fails to fill a ditch in a public way, Ellis v McNaughton,76 Mich 237 (15 Am St Rep 308). These are all, it is true, failures to act, each disastrous detail, in itself, a 'mere’ nonfeasаnce. But the significant similarity relates not to the slippery distinction between action and nonaction but to the fundamental concept of 'duty’; in each a situation of peril has been created, with resрect to which a tort action would lie without having recourse to the contract itself. Machinery has been set in motion and life or property is endangered. It avails not that the operator pleads that he simply failed to sound the whistle as he approached the crossing. The hand that would spare cannot be stayed with impunity on the theory that mere nonfeasance is involved. In such cases in the words of the Tuttle Case, supra, we have a 'breach of duty distinct from contract.’ Or, as Prosser puts it (Handbook of the Law of Torts [1st ed], § 33, p. 205) 'if a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.’ ” Hart, supra, pp 564-565.
Applying these concepts to the facts of Clark v Dalman, supra, reveals its inapplicability to the present situation. The defendant in Clark entered into a contract with the City of Otsego to repair, clean and paint a city water tank. Plaintiff wаs an employee of an engineering firm responsible for inspecting the defendant’s work on the project. In carrying out its contract with the city, defendant coated the walls, floor and ladder inside the tank with аn extremely slippery substance. When plaintiff went to inspect defendant’s progress, he slipped *287 on the substance and fell to the bottom of the tank. Plaintiff sued, claiming that his injuries resulted from the defendant’s failure tо notify the engineering firm that the tank had been coated with a greasy substance. In reversing a directed verdict for the defendant, the Supreme Court addressed the crucial duty of care issue as follows:
"Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. * * *
"* * * Moreover, while this duty of carе, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accomрanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contraсt. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creatеs the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence аction to the extent of showing the relationship of the parties and the nature and extent of the common-law duty on which the tort is based.”379 Mich 251 , 260-261.
Thus, while the contractual relationship brought the parties together аnd furnished the occasion of the tort, the defendant owned a general duty, imposed by the common law, "to act so as not to unreasonably endanger the well-being of employees of either subcontrаctors or inspectors, or anyone else lawfully on the site of the project * *
The same cannot be said of the case now before us. Freeman’s only allegation against ASR was that ASR failed to perfоrm the work in accordance with the terms and conditions of its contract with the state. 1 More specifically, ASR allegedly caused an unreasonable delay in connection with its designation of a subcontractor to perform the security locking system installation. As in Hart, ASR did not violate a duty imposed upon all, for the common law does not insist that contractors perform their work without unnecessary delay. Rather, the duty in quеstion was voluntarily assumed by ASR when it entered into a contract with the state. 2 The contractual relationship was not merely the occasion of a duty arising by operation of law; rather, the entire existence of the duty depended upon the contract promise. Therefore, the breach of those contractual obligations could not provide the basis for an action sounding in tort. The motion for summary judgmеnt based upon the failure to state a claim upon which relief could be granted was properly granted.
Affirmed.
Notes
We note that the facts before us differ from those presented in
Hart
in that
Hart
concerned an action in tort based upon the breach of defendant’s promise to the plaintiff, while here plaintiff Freeman has based its cause of action upon defendant ASR’s breach of promise to a third party,
i.e.,
the statе. This distinction does nothing to change the analysis contained herein, however. Since ASR had no legal duty to perform the work in question without enforcing the contract, the legal concepts set out in
Hart v Ludwig,
The resоlution of this case does not require that we address to whom the duty to perform the contracted-for work was owed, and thus we need not consider the effect of Freeman’s third-party status in regards to the ASR-State of Michigan contract.