Church v. Mumford , 11 Johns. 479 ( 1814 )

Thompson, Ch. J.

delivered the opinion of the court. It is, no doubt, a well-settled rule, that causes of action, founded on tort, and upon contract, cannot be joined in the same declaration; (2 Saund. 117. b. n. 1. Chittiy's Plead. 199.) and if the counts in the declaration of the plaintiffs are to be so considered, the demurrer is well taken. But that does not appear to be the case. The counts are all substantially the same, whether they are regarded as founded on tort, or in assumpsit, The gravamen alleged is a breach of duty, arising out of an employment for hire; and the same circumstances which show a breach of duty, amounting to a tortious negligence, show siso a breach of promise implied from the consideration of hire, A party may .generally declare in either way. Each count in this declaration contains allegations sufficient to support it, either in tort, or assumpsit. The two first counts set forth the employment of the defendant as an attorney, the consideration# And the promise or engagement on Ms part, and charges him not only with a breach of his undertaking, but with a neglect of duty as an attorney, in not commencing and prosecuting a suit against Burt and Babcock, whereby the plaintiffs lost their demand. The third count varies a little Use cause of action# and alleges, that the defendant, as attorney or agent, undertook to secure and render certain Use payment of the plaintiffs8 demand against Burt and Babcock, and a breach of such undertaking. But it also avers, that Burt and Babcock offered the defendant good, ample, and sufficient security for the payment of the demand; but that the defendant, fraudulently intending to deceive and defraud the plaintiffs, did not, and would not, accept of or receive the security. Whether the defendant is here to be considered as charged in the character of an attorney, or in that of an ordinary agent, cannot materially vary the nature of the charge. The facts set forth, if true, clearly show gross negligence, amounting to a tortious act on the part of the defendant. The material allegations in all the county are substantially the same. The plaintiffs must accordingly have judgment upon the demurrer.

Judgment for the plaintiffs-