— Thе original complaint in this case is in trover,, and contains two counts. The suit was commenced in Aprily 1879. At the Fall term, 1882, the complaint, with leave of the court, was amended by adding a third count. The defendant demurrеd to the complaint, as amended, assigning as one of the grounds that there was a misjoinder of count, in this, that the first two counts are in trover, and the third in assumpsit. If this be true, then the demurrer ought to have been sustained; for trover, which is ex delicto, can not be joined in the same action with assumpsit, which is ex contn-actu. Furthermore, on the hypothesis that the third count is in assumpsit, its allowance would have been the introduction of a new cause of action, a departure from the wrong complained of in the first two counts, and not allowable, even under our liberal system of amendments. — Crimm v. Crawford,
The history of the action on the case, or special action on the case, as it was originаlly called, is well known to the profession. It is not one of the original common-law writs. In the progress of judicial contestation, it was discovered that there was a mass of tortious wrongs, unattended by direct аnd immediate force, or where the force, though direct, was not expended on an existing right of present enjoyment, for which the then known forms of action furnished no redress. The action on the case was instituted to meet this want. It may then be styled a suppletory, personal action, ex delicto. It was designed to be residuary in its scojje, but is always classed among the actions in tort.
For mere breaches of ordinary сontracts, without more, this action will never lie; for, in such breach of promise, there is no element of tort, in the legal sense of that term, — “ a wrong independent of contract.” — Bouvier’s Die. Nevertheless, wrongs which will maintain an action on the case are frequently
Mr. Justice Parsons, in Wilkinson v. Mosely,
Justice Parsons, in Wilkinson v. Mosely, supra, illustrates his view of the question as follows: “ If the declaration allege the hiring of a horse to ride to a certain place, and that the defendant rode him so immoderately that he died, this would be case; for the contract of hiring imposed upon him the duty to ride in reason, or not unreasonably fast. But, if the declaration allege the hiring, and that he promised to ride with reasonable speed, but, not regarding his promisé, he rode the horse immoderately, whereby he died, the action may be considei’ed assumpsit.” We do not doubt that assumpsit would lie in the case last supposed ; but case would lie also. It was
In the third count, or amended complaint, we find this averment : “ Plaintiff avers that the defendant, disregarding the rights of plaintiff under said agreement, and in violation of said agreement, did, to-wit, on the 1st day of Seрtember, 1878, wrongfully discharge plaintiff from its said service.'*’ This averment, it is contended, if all others fail, fixes the character of this count as in case. The vice of this argument lies in this : The complaint shows that plaintiff wаs the agent of the defendant corporation, and it entirely fails to show that his appointment was for any given time, except from year to year, or that, at the time of his alleged discharge, he was acting as agent hy virtue of any appointment, or renewal of appointment. The count avers that plaintiff became defendant’s
The third count, then, is narrowed down to this : It avers that, under the terms of the modified contract of April, 1876, plaintiff was entitled to a certain per-cent, on annual renewals of a given number of policies, for and during the term of his natural life, which it avers would amount to a named, sum. The breach assigned is, that defendant denies plaintiff all right to said renewal premiums, or any interest therein, and still refuses to recognize plaintiff’s interest therein. There is not an elеment of legal tort in the averments.of this count. If a denial of liability to pay money, claimed by another, be a tort that will maintain an action on the case, then that action has a very wide scoрe; much wider than the appellee himself would contend for.
We have-carefully examined the facts and history of this case, and, basing-our judgment alone on the two contracts of February, 1874, and April, 1876, аnd the testimony of plaintiff himself, we announce the following conclusions: 1. There is no conversion that will maintain the action of trover. 2. If the defendant corporation discharged plaintiff from its service, the latter’s prior violation of the contract of February, 1874, justified it-in so doing. The facts will not support an action on the case.
It results from these principles, that the present complaint can not be so amended as to authorize a recovery. If the plaintiff has any cause of action, it is for his interest in the renewal premiums as they are realized.
Reversed, but the cause need not be remanded.