6 Pa. 360 | Pa. | 1847
The weight of authority has put it beyond question, that though the action may be in form as for a tort, yet if the subject of it be based on contract, the suit will be attended by all the incidents of an action ex contractu, and this whether the defaulting party be an infant or an adult. The remark of Sir James Mansfield in Weal v. King, 12 East, 534, is, that “the form of the action cannot alter the nature of the transaction,” and he added, that, “ though the non-performance of that which is originally contract may be made the subject of an action of tort, the foundation of that action must still be in contract.” This doctrine is adopted by our own cases of Wilt v. Welsh, 6 Watts, 10, which denies the soundness of the New York determination in Campbell v. Stokes, and of Hunt v. Wynn, Id. 47; which recognises that wherever the violated duty necessarily springs from contract alone, the action is quasi ex contractu, though the gravamen is laid in tortious negligence, or breach 'of duty by positive and express tort. These cases are in consonance with Powell v. Layton, 2 New Rep. 365; Max v. Roberts, Ibid. 454; Wolcott v. Canfield, 3 Conn. Rep. 190 ; and the Bank of Orange v. Brown, 3 Wend. 158. The last was an action against the proprietors of a steamboat, as common carriers, liable either upon the custom or by force of their undertaking, at the option of the plaintiff; and after an examination of most of the authorities to be found on this somewhat vexed question, it.,is laid down that if the plaintiff relies on the undertaking general or special, the action is, in reality, founded on tifie contract, and will be treated as such, though the tortious negligence may also he set out in the narr. To this class is to be referred McCall v. Forsythe, 4 Watts & Serg. 180, brought against the joint-owners of a stage-coach for an injury done to a passenger. It was decided as being founded upon the custom for a misfeasance, apart from contract; and the court notice the choice, which, in such cases, is open to the plaintiff to bring either assumpsit upon the implied contract of the defendant, or case, as for a breach of his common law duty, and say that the form adopted will be governed by its own rules. The reason why this choice • of form against a common carrier is permitted, is that the action requires not the aid
It follows from what has been said, that if the contract sued on here was made with Livingston, the deceased partner, acting for and on behalf of the firm of which he was a member, the action for a breach of it, occurring in his lifetime, survived against the surviving partner, John D. Mahan, whose solvency is not disputed, and must be so brought, and not against the personal representatives of the deceased. But if Cox and Livingston made the contract as individuals, intending only to bind themselves, and without reference to the partnership, then it would seem as the firm cannot be charged, the action will survive against the estate of the con
But’upon the supposition that it was the understanding and agreement of the parties, that Livingston alone was retained by the plaintiff, we seé no objection to the answer given by the court below to the defendant’s fourth proposition. It is certainly true, that the measure of damages, in a case like the present, is the. actual loss sustained by the negligence of the attorney, But if the claim or debt intrusted to his professional care for collection is not, through his neglect, collected or secured when it might, and reasonably ought to have been; it will not do to say this neglect is excused by the subsequent laches of a volunteer, who possibly, by the exercise of extraordinary diligence, might have made the debt from the wreck of a failing man’s fortune. Though this might have been possible, or even probable in the particular case, it may still' with truth be affirmed that the client lost the opportunity of securing the amount due to him because of the default of the first attorney, and has, therefore, suffered an injury at his hands, commensurate with the debt due, should the money eventually remain uncollected.
No exception was taken upon the trial to the answer of the court to the defendant’s fifth point, and therefore the error assigned here, in this particular, cannot be noticed ; and .as the cause goes back for another trial, when doubtless the plaintiff will take the opportunity of increasing the amount laid in his narr. as damages, it is unnecessary to consider the first error.
The fourth error was not urged on the argument by the plaintiff in error. No mistake in the record is perceived but that already pointed out, but for this the judgment must be reversed.
Judgment reversed, and a venire facias de novo awarded.