Lane v. Cameron , 38 Wis. 603 ( 1875 )

Cole, J.

It is quite clear to my mind that the amended complaint states what under the former system of pleading would be called an action on the case. The facts stated show a breach of duty on the part of the defendants in using the horses in a different manner, or for a different purpose, from that which was intended by the parties, and that as a consequence the horses were exposed to the disease from which they sickened and died. That is, the very ground of the action is a breach of duty in the misuser of the horses. In Burnett v. Lynde, 5 Barn. & Cress., 609, Mr. Justice Littledale states the distinction between an action in assumpsit and one on the case in the following language: “ Where there is an express promise, and a legal obligation results from it, there the plaintiff’s cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where from a given state of facts the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, there although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action, in which the plaintiff in his declaration states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach?” 1 Chitty’s PL, 136. Consequently, before the code the actions of assumpsit and on the case were concurrent remedies for many injuries resulting from nonfeasance, misfeasance, and malfeasance to personal property. Booth v.. The Farmers & Mechanics' National Bank, 1 N. Y. Sup. C. R., 45. But this rule is so familiar that it would be a waste of time to dwell upon it.

The motion to strike the amended complaint from the files is based upon the objection, that, as the original complaint was. upon contract, the amendment was not allowable; that it is not permissible, under the form of amendment, to change an action upon contract into one in tort, and therefore the motion should have been granted. Supervisors of Kewaunee Co. v. Decker, 34 Wis., 378. This requires an examination of the original complaint, in order to ascertain what cause of action is there stated. The counsel for the plaintiffs insists that it states two causes of action : one on the contract of bailment, whether designated assumpsit or case; and the other upon the undertaking to pay the value of the horses in case they should die, providing the plaintiffs would go out to the town of Yinland, where the horses were, and take care of them. The proposition that a complaint might be so framed as to state in the same count, or in any number of counts, a cause of action ex contractu, and also one ex delicto, and still be a good pleading, is one we should be unwilling to sanction, certainly where any objection was taken to the misjoinder. But irrelevant and redundant matter may be stated in the complaint, which will not vitiate it, providing facts are stated which constitute a good cause of action. In the original complaint it is alleged, in substance, that the plaintiffs, at the request of the defendants, loaned to them a span of horses to be used, for their keeping, in the city of Oshkosh, in drawing their ice wagon and for no other purpose; that the defendants, wrongfully and without the knowledge of the plaintiffs, sent said horses away from the city of Oshkosh to the tow;n of Vinland, in violation of the contract of bailment; and that, by reason of the carelessness of the defendants and the exposure and improper management of the horses, they became sick, etc. This, we think, states a good cause of action in tort. It was virtually such a misuser of the horses as to amount to a determination of the contract of bailment, and to a conversion of the property. For the right to use the thing bailed is strictly confined to the use expressed or implied in the particular transaction ; and the borrower, by any excess, makes himself responsible for the loss, although it be by some inevitable casualty. Story on Bailm., §§ 232, 233 and 241. And therefore what is stated in the subsequent part of the complaint, ^* that the defendants promised to pay for the horses in case they should die while under the care of the plaintiffs, may' be rejected as surplusage. The duty of the defendants to use the horses in the place and for the purpose for which they were loaned, is very accurately stated, as well as the damage resulting to the plaintiffs from a breach of that obligation; and the redundant matter does not countervail or destroy what is well pleaded. . It follows from these views that there was no error in refusing to strike the amended complaint from the files.

By the Court. — The order of the circuit court is affirmed.

Lyojst, J., took no part in the decision of this cause.

* After the allegations the substance of which is previously set forth in the opinion, the original complaint averred, in the same count, that thereupon defendants notified the plaintiffs, and requested them to go out to said town of Vinland and take care of the horses, “ and undertook then and there that in case said horses should die, they, the defendants, would pay for them;” that one of the plaintiffs did, on that understanding, go out to where the horses were stabled, and did assist in taking care of them; that afterwards, on etc., tire horses died; and that defendants have refused to pay for them on demand, etc. — Rep.