9 Colo. 551 | Colo. | 1886
It is conceded by the parties to this cause that the man Sargent, who procured the shipment of the wood from the plaintiff Miller to the defendant Hal-lock, was a swindler, and that both plaintiff and defendant acted in good faith. Plaintiff’s counsel contends that the plaintiff is entitled to compensation from Hallock for his wood, because it was neither sold nor delivered to Sargent, but shipped to, received by, and converted to the use of, said defendant. In support of this theory, counsel cite the following cases, which are clearly analogous to this case, so far as the facts are concerned, and which seem to sustain the rule of liability contended for: Hamet v. Letcher, 37 Ohio St. 356; Barker v. Dinsmore, 72 Pa. St. 427; Klein v. Seibold, 89 Ill. 540; Barnard v. Campbell, 55 N. Y. 457; Moody v. Blake, 117 Mass. 23.
The theory of the defense, however, is unanswerable so far as the present action is concerned. It is that the complaint counts upon a contract for the sale of the wood, alleged to have been entered into between the plaintiff and defendant, whereas the proof wholly failed to sustain
A cause of action is a wrong committed or threatened. It may consist of the wrongful conversion of property, or of the non-performance of an agreement. In one case the cause of action would sound in tort, the other in contract; and, while the relief sought might relate to the same subject-matter, yet proof of facts sufficient to sustain an action for the tort would be insufficient to sustain an action for the non-performance of the agreement, for the reason that the probata would not correspond with the allegata. The complaint would state one cause of action, every material averment of which might be controverted and put in issue by the answer of the defendant, while the facts proved would be foreign to the issues joined. That is just the case here presented. The com
The judgment must be affirmed.
Affirmed.