10 S.E. 917 | N.C. | 1890
A cause of action for tort cannot be joined in the same action with a cause of action upon contract unless they arise out of the same transaction, or transactions connected with the same subject of action. Such is not the case here. The first and third causes of action allege injury to real property by reason of the erection of defendant's embankment and road-bed. This is the transaction which is the subject of the action. The other cause of action has no necessary connection therewith. It existed, whether defendant had erected an embankment or not, and was for failure of defendant to put up cattle-guards at the points where defendant's track passed through plaintiff's enclosure. In the absence of legislation there was no duty imposed upon defendant to put up (172) such cattle-guards. Had this second cause of action arisen from wrongfully piercing plaintiff's line of fence, and thereby turning in cattle, unless fenced out by plaintiff, this would have been a tort. But so far from that, the defendant was authorized by law to enter, and compensation was given plaintiff for such lawful entrance, by proceedings to condemn the right-of-way. The second cause of action was for failure to perform the duty imposed by The Code, § 1975. An action for the alleged breach of the implied contract to perform a statutory duty "arises upon contract." A case exactly in point is Utica Black River Railroad Company
v. Thomas, 20 Am. and Eng. R. R. Cases, 93. There, the complaint was to recover damages caused by railroad embankment ponding back water on adjacent land, and for neglect of the railroad company to erect and maintain a farm-crossing, as required by statute. The Court held that the two causes of action did not arise out of the same transaction, and, inasmuch as the second cause of action was *159
for failure to perform a statutory duty, it "arose upon contract," and there was a misjoinder. In N. Y. N. H. Railroad v. Schuyler,
We think the demurrer should have been sustained. The Code, § 267;Logan v. Wallis,
The defendant would have been entitled, in any event, to an order of repleader, because the different causes of action are not stated separately as such, but all together, without any separation or distinction.
Error.
Cited: Purcell v. R. R.,
(173)