Schulhofer v. Richmond & Danville Railroad ( 1896 )

ClarK, J.:

The cause of action could be sustained either for damages for breach of the contract of safe delivery, or in tort for negligence. The plaintiff having brought the action before a justice of the peace “ for $190, due by contract,” evidently elected to sue ex contractu. "When the action can be fairly treated as based either on contract or in tort, the courts, in favor of jurisdiction, will sustain the ■election made by the plaintiff. Brittain v. Payne, at this Term; Bowers v. Railroad, 107 N. C., 721; Stokes v. Taylor, 104 N. C., 394.

The judgment dismissing the action is

Reversed.