Wood v. Milwaukee & St. Paul Railway Co. , 32 Wis. 398 ( 1873 )

Cole, J.

After the decision of this court in the case of Conkey against this defendant, nothing further need be said upon the question of the liability of the defendant for the property lost or destroyed. The only remaining question is that which relates to the question of costs. The defendant objects that no more than twenty-five dollars attorney’s fees can be taxed on the action. And this calls for a construction of a clause of section 59, ch. 133, p. 1533, Tay. Stats., which limits the amount of attorney’s fees “in actions at law on contract” to twenty-five dollars. And tbe question is, Can this be said to be an action at law on contract, witbin tbe meaning of tbis provision of tbe statute? We tbink not. Tbe gravamen of tbe complaint is solely for a breach of duty, and is founded upon tbe custom. It is wbat would have been denominated under tbe old system an action on the case for a tort or misfeasance. Tbe plaintiff doubtless bad bis election to bring bis action on contract or for a breach of duty. He chose the latter form of action, and framed tbe complaint accordingly. And that tbe complaint states an action in tort, or for a misfeasance, is a point fully established by tbe authorities to which we are referred in tbe brief of tbe counsel for tbe plaintiff. Indeed, all discussion of tbe question would seem to be quite unnecessary after tbe very clear and satisfactory opinion of Savage, C. J., in the case of Orange Bank v. Brown, 3 Wend., 158. He shows most conclusively that an action against a common carrier founded solely upon tbe custom is an action in tort, and not upon contract.

By the Court.— Tbe judgment of the circuit court is affirmed.