79 N.W.2d 895 (Mich. 1956), 40, Hart v. Ludwig
|Citation:||79 N.W.2d 895, 347 Mich. 559|
|Opinion Judge:||SMITH, Justice.|
|Party Name:||Hazen H. HART and Lorene C. Hart, his wife, Plaintiffs-Appellants, v. Frederick LUDWIG, Defendant-Appellee.|
|Attorney:||[347 Mich. 560] William K. Kreston, Detroit, for plaintiffs-appellants. Schlee & McIntosh, Port Huron, for defendant and appellee, Schlee, McIntosh & Simpson, Port Huron, of counsel.|
|Judge Panel:||Before the Entire Bench, except BOYLES, J. BLACK, J., took no part in this decision.|
|Case Date:||December 28, 1956|
|Court:||Supreme Court of Michigan|
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, [347 Mich. 561] 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:
[347 Mich. 562] '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...
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