Livingston v. Cox

• Decision Date: 29 September 1847
• Citation: Livingston v. Cox, 6 Pa. 360, 1847 WL 4906 (Pa. 1847)
• Parties: LIVINGSTON <I>v.</I> COX.
• Court: Pennsylvania Supreme Court

6 Pa. 360

LIVINGSTON v. COX.

Supreme Court of Pennsylvania.

September 8, 1847.

September 29, 1847.

Sept. 8.

IN error from the District Court of Allegheny county.

Williams, for plaintiffs in error, cited Gratz v. Phillips, 5 Binn. 564; Burke v. Huber, 2 Watts, 306; Reynolds v. Cleaveland, 4 Cow. 282; Douglass, 371; Schermerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Trovinger v. McBurney, 5 Cow. 253; Warner v. Griswold, 8 Wend. 665; 1 Chit. Pl. 87; Wilt v. Welsh, 6 Watts, 10; Hunt v. Wynn, 6 Watts, 47; McCall v. Forsyth, 4 Watts & Serg. 180; Bretherton v. Wood, 7 Eng. Com. Law Rep. 345; Ansell v. Waterhouse, 18 Eng. Com. Law Rep. 227; Bank of Orange v. Brown et al., 5 Wend. 158; Zell v. Arnold, 2 Penna. Rep. 295.

Dunlop and Magraw, contrà, cited sects. 26, 28, of act of 1834, Dunlop's Dig. 515; Dodge v. Coddington, 3 Johns. 148; Alexander v. McGinn, 3 Watts, 220; Graeff v. Hitchman, 5 Watts, 454; Gratz v. Phillips, 5 Binn. 564; Spackman's administrators v. Byers, 6 Serg. & Rawle, 385.

Sept. 29. BELL, J.

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 the contract, and will be treated as such, though the tortious negligence may also be 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 of a contract to support it, though the law will imply a contract if the plaintiff prefers to invoke it. Bretherton v. Wood, 7 Eng. Com. Law Rep. 345; Ansell v. Waterhouse, 18 Eng. Com. Law Rep. 227. Although not at all times obvious, the distinction seems to be between misfeasance, which imports in itself a wrong without reference to contract, and non-feasance, being the violation of an obligation by a neglect or refusal to fulfil its requirements. It is upon this ground that the cases of Zell v. Arnold, 2 Penna. Rep. 295; and McCahan v. Hirst, 7 Watts, 177; and Todd v. Figley, Id. 452, are said to be reconcilable. But at present, it is scarcely necessary to trouble ourselves with these shades of difference; for it is obvious the present is an action in form as well as in substance, upon a contract, specially and circumstantially set out in the plaintiff's declaration, and necessarily so too, for I take it, it is only on this ground an action can be maintained against a negligent attorney or his personal representatives after his death: 1 Chit. Pl. 90. But at the time of the inception of the contract declared on, the defendant's intestate was associated in partnership with John D. Mahan, Esq., as attorneys at law; and the subject of the contract being within the objects of the firm and the scope of its business, is to be taken in law as made with the firm, though but one of the partners negotiated it, and the plaintiff was ignorant of the partnership at the time, unless the transaction be marked by some peculiar circumstance which will prevent it from falling under the operation of the general rule. It is no consequence that a contract was made with and on the credit of one partner alone; for if the acting partner intended it at the time, for the use and benefit of the partnership, the law implies an obligation upon the part of all who are entitled to a share in the profits. The rule is thus established for the benefit and protection of those dealing with partners; but it also operates for the protection of those thus associated, for if a less number than all be sued, it may be pleaded in abatement; Clark v. Holmes, 3 Johns. 146; Murray v. Somerville, 2 Campb. 99; Schermerhorn v. Loines, 7 Johns. 311; Reynolds v. Cleaveland, 4 Cow. 282; Alexander v. McGinn, 3 Watts, 220; and if one of the partners die, no action will lie against his representatives, except upon a suggestion and proof of the insolvency of the survivors. Tacitly admitting this principle to be operative in the case of partnership formed for commercial or other trading purposes, the learned judge, who tried the cause below, seems hastily to have adopted the idea that there is something different in the nature of a partnership, entered into with a view of carrying on the business of an attorney at law, which frees it from the dominion of the general law of partnership; and this, probably, led him to give less attention to the first point, upon which the defendant prayed his instructions to the jury, than its importance under the facts in proof demanded. But the idea is evidently erroneous. The law recognises professional...