Stark v. Wellman

Temple, C.

— This case presents only the question whether different causes of action have been improperly united in a complaint.

It consists of two counts, or separate statements of two causes of action. The first charges that plaintiff delivered to defendant, at his special instance and request, a package containing $650 in coin, in consideration of which defendant undertook and agreed to take due and proper care of it, and to redeliver the same to plaintiff on demand; that defendant did not take due and proper care of said package, but so carelessly conducted himself with respect thereto, that it was lost through his gross [401]carelessness, negligence, and improper conduct, and that he failed to redeliver the same on demand; wherefore plaintiff demanded judgment for damages.

In the second cause of action it is averred that on a day named plaintiff was the owner and entitled to the possession of a certain package of coin worth $650, which, being in the possession of defendant, he converted to his own use, etc.

A special demurrer was interposed to this complaint, specifically objecting to the joinder, on the ground that the first is a cause of action for the breach of a contract,, and the second is founded upon a tort.

Respondent contends that both sound in tort; that the first is for a breach of a duty imposed by law, and not for the violation of a contract obligation. This contention cannot be sustained. It is true, the owner of property injured by the tortious act of another may sue-for the injury in tort, without noticing a contract with the wrong-doer, of which the wrongful act is a violation. (Shearman and Eiedfield on Negligence, sec. 22.)

But there can be no question that he may sue for the breach of his contract, as was done in this case. The duty which the defendant is charged with having violated is expressly derived from the contract.

The cause of action averred in the second count is a conversion of personal property.

These two causes of action cannot be joined under section 427 of the Code of Civil Procedure, and it was-error for the court to overrule the demurrer interposed on that ground. Whether the error was prejudicial is-the only question remaining.