Smith v. Way

Chapman, J.

By the breach of agreement set forth in the plaintiff’s declaration, the defendant became liable to the plaintiff for a single cause of action, and one action only could be maintained upon that liability. Bennett v. Hood, 1 Allen, 47. Assuming that the plaintiff had his election to sue either in contract or in tort, yet a judgment in one form would be a bar to an action in the other form. Eastman v. Cooper, 15 Pick. 285. Norton v. Doherty, 3 Gray, 372. Burnett v. Smith, 4 Gray, 50. Warren v. Comings, 6 Cush. 103. These cases sufficiently illustrate the doctrine, and it is not necessary to refer to the other authorities cited. ,

The plaintiff has heretofore brought his action of contract for his cause of action, it being the case reported in 6 Allen, 212, and has recovered judgment for his damages. The amount he there recovered was held to be a compensation for all the natural and proximate consequences of the defendant’s failure to fulfil his contract. Probably this is all he would have been entitled to recover if his action had been tort instead of contract; but if upon the allegation of special damages in his declaration it would have been otherwise, still the damages cannot be severed, and the judgment in file former action is a bai to the present actioiu