The Holt Ice And Cold Storage Co. v. The Arthur Jordan Co.

• Decision Date: 29 May 1900
• Docket Number: 3,076
• Citation: 57 N.E. 575,25 Ind.App. 314
• Parties: THE HOLT ICE AND COLD STORAGE COMPANY v. THE ARTHUR JORDAN COMPANY
• Court: Indiana Appellate Court

57 N.E. 575

25 Ind.App. 314

THE HOLT ICE AND COLD STORAGE COMPANY v. THE ARTHUR JORDAN COMPANY

No. 3,076

Court of Appeals of Indiana

May 29, 1900

Rehearing denied October 5, 1900.

From the Marion Superior Court.

Affirmed.

J. R Wilson and M. M. Townley, for appellant.

R. W McBride and C. S. Denny, for appellee.

OPINION

ROBINSON, C. J.

Appellee's complaint avers that appellant is a warehouseman maintaining storage rooms for storing butter and other articles of a perishable nature; that appellee was engaged in buying butter which it wished to preserve for future use; "that said defendant undertook and agreed with plaintiff that for a reasonable storage charge it would cause said butter to be kept in frozen storage in its said rooms, and that thereafter, to wit, from time to time during the months of May, June, and July of 1897, plaintiff did deliver to defendant large quantities of said butter, in all, 21,072 pounds, to be by defendant thus kept in frozen storage, and agreed to pay to defendant its charges therefor, which said charges plaintiff thereafter paid; and that in consideration of plaintiff's said promise to pay said charges, said defendant accepted and kept in its said frozen storage rooms all of said butter, and undertook to use ordinary skill, diligence, and care in the storage and preservation thereof. Plaintiff further avers that said defendant wholly failed to use due, ordinary, and reasonable care, skill, and diligence in the storage and preservation of said butter, by reason of which it became, and was, impregnated with deleterious odors and flavors, which greatly diminished its value, to wit, in the sum of $ 5,000; all to plaintiff's damage in the sum of $ 5,000, for which sum plaintiff demands judgment."

Appellant answered in general denial. Trial by jury and verdict for appellee for $ 2,300. Appellant's motions for a new trial and in arrest were overruled. These rulings, and that the complaint does not state facts sufficient to constitute a cause of action, are assigned as error.

It is argued that the complaint is defective for failure to negative contributory negligence. If the recovery demanded is sought to be predicated upon the breach of a contract it was not necessary to aver the absence of contributory fault. It is insisted by appellant's counsel that the contract referred to in the complaint is purely as an inducement to what follows, and that the action is for damages arising out of a breach of duty imposed by law.

Although the code provides that there shall be out one form of action for the enforcement and protection of private rights and the redness of private wrongs, yet the courts have constantly kept in view the fundamental distinction between case and assumpsit. The distinction between actions ex delicto and actions ex contractu is as substantial and material under the code as before its adoption. The code may abolish the formal differences between such actions, yet the intrinsic and substantial differences remain as before. And where a party's contract rights have been violated by the wrongful and tortious act of another he may, as a general rule, sue for damages for the tort, or, waive the tort, and sue on contract. In such case, under the code and at common law, the party has the two concurrent remedies.

Where a pleader simply sets forth the facts of the transaction, it is often difficult to determine whether he has sued in tort, or waived the tort, and sued on contract, but in every case whether the action is ex contractu or ex delicto must be determined from the facts which are averred as constituting the cause of action, not from averments which are neither issuable nor material.

In 1 Chitty on Pl. (16th Am. ed.), 397, the author says that when the declaration "is founded on the obligation of law, unconnected with any contract between the parties, it is sufficient to state very concisely the circumstances which gave rise to the defendant's particular duty or liability."

At common law a declaration in assumpsit must disclose the contract, its consideration, whether the contract was express or implied, and its breach. It was necessary to slow a promise, either by directly averring that the defendant "promised", or by other equivalent words. Avery v. Tyringham, 3 Mass. 160; Sexton v. Holmes, 17 Va. 566, 3 Munf. 566; Cooke v. Simms, 6 Va. 39, 2 Call 39.

When pleadings were in Latin the word assumpsit was always inserted in the declaration as a description of the defendant's undertaking, and afterwards the word "undertook", though the promise be founded on a legal liability and would be implied in evidence, was always considered proper to be inserted in the declaration. Bacon's Abr., Assumpsit, F.; 1 Chitty on Pl. (16th Am. ed.), 152, 308, 397; 2 Chitty on Pl. (16th Am. ed.), 69, 144, 484; Booth v. Farmers, etc., Bank, 65 Barb. 457. For the difference at common law between the form of a declaration in assumpsit and one in case, see 2 Chitty on Pl. (16th Am. ed.), 60, 483.

In Booth v. Farmers, etc., Bank, supra, it is said: "When case and assumpsit were at common law concurrent remedies, the form of action that the pleader selected was determined, as I have shown by the insertion in or omission from the declaration of the allegation that the defendant undertook and promised. This right of selecting remedies, and whether the action is in tort or assumpsit, must be determined by the same criterion. If this is not so, then the right of election is taken away. If taken away, which of the two is left? An action on contract can not be joined with one in tort. How are we to determine whether the action is one on contract or in tort, unless the pleader by averment alleges the making of the contract, and demands damages for a breach in the one case, or, by the omission of such an averment, makes it an action in tort? I know of no more certain or convenient criterion by which to determine the class to which a cause of action belongs than by the one suggested. If some such rule is not established the question of misjoinder will arise in every case in which, at common law, assumpsit and case were concurrent remedies."

While an express promise, or words equivalent to the averment of an express promise, was absolutely necessary in a declaration in assumpsit, yet, under the code, a promise need not be averred, if from the facts pleaded a promise would be implied by law. Wills v. Wills, 34 Ind. 106; Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308.

In the case at bar the complaint shows an agreement under which appellant accepted for storage appellee's property, and for which appellee paid a consideration. The question is whether the complaint avers a promise, or facts implying a promise, to use diligence and care in the storage and preservation of the property. If there is such a promise, express or implied, it must be in the following: "And that in consideration of plaintiff's said promise to pay said charges, said defendant accepted and kept in its said frozen storage rooms all of said butter, and undertook to use ordinary skill, diligence and care in the storage and preservation thereof." The words quoted mean that in consideration of plaintiff's promise to pay the charges defendant accepted the butter and undertook to use skill and care in its preservation and storage. The neuter verb "undertake" sometimes means agree, promise. Soule's Synonyms; Century Dictionary. And taken with the context it is here used in the sense of agreed or promised. The complaint means appellant undertook to use skill and care in the storage and preservation of the butter in consideration of appellee's promise to pay the storage charges. A consideration is alleged, and it was for this consideration that appellant undertook to use skill and care. Taking the complaint as a whole its averments show that the pleader relied upon the agreement, and that the action is on contract. See Staley v. Jameson, 46 Ind. 159, 15 Am. Rep. 285; Burns v. Barenfield, 84 Ind. 43; Lane v. Boicourt, 128 Ind. 420, 25 Am. St. 442, 27 N.E. 1111; Greentree v. Rosenstock, 61 N.Y. 583; Austin v. Rawdon, 44 N.Y. 63.

In DeHart v. Haun, 126 Ind. 378, 26 N.E. 61, the words used in the pleading could not be construed as a promise, for the reason no consideration was alleged.

In Boor v. Lowrey, 103 Ind. 468, 53 Am. Rep. 519, 3 N.E. 151, the complaint averred that the plaintiff having sustained a fracture employed certain physicians, who undertook, for a certain reward, to treat the fracture; that they executed their undertaking negligently, in consequence of which plaintiff was injured. The court said: "It might well be said within the holding in Goble v. Dillon, 86 Ind. 327, that the action was brought in form ex delicto, but we choose to put it on the broader ground, that regardless of the form in which the action is brought, since the injury for which a recovery is sought is an injury to the person, it can not survive the death of the defendant." And when the same case was appealed a second time, Hess v. Lowrey, 122 Ind. 225, 17 Am. St. 355, 7 L. R. A. 90, 23 N.E. 156, it was said: "If the action is, as doubtless it should be, regarded as a suit quasi ex contractu, for damages for an injury to the person occasioned by the breach of a joint contract, the death of one of the defendants simply severed the joint liability and extinguished the claim against the decedent, while it continued in full force as to the survivor."

It must be noted also that the word "undertook" is used differently in the Boor-Lowrey case from the case at bar. In the former the physicians simply undertook to perform the service; in the case at bar appellant, for a consideration, agreed to perform the services and undertook to use care and skill. The...