Nethery v. Belden , 66 Miss. 490 ( 1889 )

Arnold,' C. J.,

delivered the opinion of the court.

With us, attachment is essentially a statutory remedy, and it is maintainable only in those cases in which it is authorized by statute. The code provides that “the remedy by attachment, shall apply to all actions or demands, founded upon any indebtedness, or for the recovery of damages, for the breach of any contract, express or implied, and to actions founded on any penal statute.” Code, § 2414.

In Fellows v. Brown, 38 Miss. 541, it was held, under a statute similar to the one above cited, that attachment was not allowable, to recover damages sustained in consequence of fraud and deceit, and it was said to be plain that, except for the recovery of penalties under statutes, the remedy by attachment was intended to apply to matters ex contractu, and not to actions ex delicto. It was said also, that there was nothing in that case, savoring of contract or seeking to recover for the breach of a contract. It looked entirely to the recovery of damages for the fraud, alleged both in the affidavit and the declaration; nor did the declaration set forth the fraud and deceit, and waiving the tort, seek recovery in assumpsit. It sounded wholly in tort, and contained no feature of an action of assumpsit.

We construe the statute quoted, to mean, as far as implied contracts are concerned, that whenever assumpsit will lie for the breach of an implied contract, attachment may be maintained to recover damages therefor, although the breach of the contract may be tortious. Wade on Attachment, §§ 12, 22 ; Crane v. Lewis, 4 La. An. 320 ; Hunt v. Norris, 4 Mart. (La.) 517; R. R. Co. v. Peoples, 31 Ohio St. 537 ; Fuel Co. v. Tuck, 53 Cal. 304.

As the suit here, was brought before a justice of the peace, and there are no pleadings in writing, we infer from the facts of record, that the horse injured by being overdriven, was in possession of appellee as a bailee for hire. In such case, the bailee or hirer is under an implied obligation to use the animal with such care and moderation as an ordinarily prudent man would use his own property of the same kind, and not to apply it to any other use than that for which it was hired. Trotter v. McCall, 26 Miss. 410 ; Story on Bailments, §§ 397, 399, 400, 413. And if he fails to comply with this implied obligation, and' the bailer is thereby damaged, he may sue, either in case or assumpsit, at his option. Bank of Mobile v. Huggins, 3 Ala. 206 ; 1 Chit. Pl. [102] [1351] ; 2 Ib. [338]. If he declares in case, the fraud or negligence of the bailee, is the gravamen of the charge ; if in assumpsit, then the implied promise or undertaking and its breach, constitute the ground of action.

In this view of the law, the item in the account sued on, for injury to the horse, is within the statute authorizing attachment, and should not have been excluded by the court.

The question of the liability of the appellee for the act of his agent, suggested in the brief for appellee, was not raised in the court below, and will not now be considered or adjudicated here.

The judgment is reversed, and the cause remanded.