Hart v. Ludwig

• Citation: 347 Mich. 559,79 N.W.2d 895
• Decision Date: 28 December 1956
• Docket Number: No. 40,40
• Parties: Hazen H. HART and Lorene C. Hart, his wife, Plaintiffs-Appellants, v. Frederick LUDWIG, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 895

79 N.W.2d 895

347 Mich. 559

Hazen H. HART and Lorene C. Hart, his wife, Plaintiffs-Appellants, v. Frederick LUDWIG, Defendant-Appellee.

No. 40.

Supreme Court of Michigan.

Dec. 28, 1956.

William K. Kreston, Detroit, for plaintiffs-appellants.

Schlee & McIntosh, Port Huron, for defendant and appellee, Schlee, McIntosh & Simpson, Port Huron, of counsel.

Before the Entire Bench, except BOYLES, J.

SMITH, Justice.

Here a contracting party 'refused and neglected' further to abide by an agreement. The other parties sued him, not for breach of contract, but in tort. Upon motion ('plaintiff's declaration does not state a valid cause of action because if alleges an action in tort for the nonperformance of a contract') the trial court dismissed, with prejudice. His action is before us on a general appeal.

The contract was verbal. It related to the care and maintenance of an orchard owned by plaintiffs (who will hereafter be referred to in the singular). Defendant worked the orchard during the spring of 1952, but shortly after beginning work for the 1953 season he refused to go on. Why, we are not told. But his omissions are set forth in detail. He thereafter failed to remove the shutes, to prune, to fertilize, or to protect it against destructive animal life. These omissions, says plaintiff, 'were contrary to the common law' and constituted negligence. Plaintiff, it is pleaded, was in nowise contributorily negligent.

Thus we have, clearly, an action in tort, arising out of breach of contract. Can it be maintained?

The question is not without difficulty. It carries much of history, much of the forms of action, case and covenant, debt and detinue. Thus the clumsy or unfortunate barber or blacksmith must answer on the case at an early day. (Y.B. 46 Edw. III, 19, pl. 19 (1973)). He had been guilty of deceit. He had represented that he was skilled in his calling and plaintiff's injuries attested that he was not. As the embryonic contract law grew, however, as the idea of consideration developed, the defendant's 'assumpsit' became the gist of the action. 3 Street, Foundations of Legal Liability (1906) 173. Ample precedents in tort, however, remained, and with them much confusion as to the 'proper' form of action. As Prosser puts it, in his Thomas M. Cooley Lectures (Selected Topics on the Law, of Torts, Ch. 7, Borderland of Tort and Contract, 384-86 (1953):

'For our purposes, the important fact is that it still remained possible, notwithstanding the existence of the new remedy, to maintain the old tort action on the case in any contract situation in which it had been recognized. Litigants were quite slow to adopt the practice of pleading in assumpsit where the older action would still lie. It was not until 1689 that it was first intimated that a carrier might be liable in contract. It was not until 1778 that assumpsit was held to lie for a seller's breach of warranty; and even then it appears to have been resorted to only for the procedural advantage of joining money counts to recover the price paid. The old tort remedy for breach of the undertaking involved in a warranty, without proof of an scienter or deceit, survives in a healthy condition even to the present day; and there are a great many American cases in which it has been successfully maintained.

'Once it was clear that assumpsit would lie for any breach of contract, but that in certain situations there might still be a remedy in tort, the English courts began to be beset with problems.'

A dichotomy eventually emerged, however, generalized, and with notable exceptions, but roughly workable. The 'time-honored formula,' holds Mr. Justice Cardozo, 'often phrases the distinction as one between misfeasance and nonfeasance.' H. R. Moch Co., Inc., v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898, 62 A.L.R. 1199. Thus in Elsee v. Gatward, 5 Durnford & East's 143, 150, 101 Eng.Rep. 82, 86 (1793) the court held:

'The distinction is this: If a party undertake to perform work, and proceed on the employment, he makes himself liable for any misfeasance in the course of that work; but if he undertake, and do not proceed on the work, no [tort] action will lie against him for the nonfeasance.'

The distinction thus enunciated was considered in detail by this court, and employed, in Chase v. Clinton County, 241 Mich. 478, 217 N.W. 565. In this case plaintiff's performance of his contract obligation to the county had been delayed, he asserted, because of the county's nonfeasance, its failure to act promptly in securing prompt dismissal of a pending chancery suit. In his action, sounding in tort, the trial court, 'being of opinion no actionable tort negligence was shown, rendered a judgment for defendants.' In affirming we held, in part:

"A distinction is made, however, in case of nonfeasance in performance of a contract, it being held that an action sounding in tort cannot be founded thereon.'

'This so-called 'important distinction' is reviewed with citations in 12 L.R.A.,N.S., 929 (annotations). Amongst other authorities cited is Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N.E. 465, which squarely states the distinction, and clearly explains the reason for it. The most that plaintiff appears to claim is negligent nonfeasance of the board in failure to more fully observe an implied contractual obligation to more promptly secure dismissal of the court's restraining order against it, and, as we view it, his proofs fail to sustain the burden of proof even to that extent.' Id. 241 Mich. at pages 486-487, 217 N.W. at page 568.

In the Tuttle case referred to above, the plaintiff was a lessee of farm buildings which the defendant lessor had agreed to repair. Plaintiff was injured when the floor of the barn collapsed and sued in tort for the alleged negligence of the defendant. In refusing to allow recovery the court said:

'But if we assume that the contract was to make the repairs within a reasonable time, and that the jury would be justified in finding that the defendant had not performed it within a reasonable time, the question is whether, for such a breach, the plaintiff can maintain an action of tort to recover for personal injuries, sustained by reason of the defective condition of the stable floor.

'The cases are numerous and confusing as to the dividing line between actions of contract and of tort; and there are many cases where a man may have his election to bring either action. When the cause of action arises merely from a breach of promise, the action is in contract. 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 promise to pay money, would sustain a suit in tort for negligence, and thus the promissor be made liable for all the...