Philadelphia, Wilmington & Baltimore Railroad v. Constable

Miller, J., delivered the opinion of the Court. The first subject of review in this case, is the judgment overruling the demurrer to the declaration. The ground of demurrer is a misjoinder of counts. The declaration contains two counts, of which the first charges that the defendant by its agents and servants so carelessly and negligently drove and conducted its locomotives and cars, that sparks and fire therefrom were dropped, blown, cast and spread by burning in and upon the plaintiffs’ fences, trees, timber, grass, wood and rails, and thereby set fire to, burned, consumed, injured and destroyed the same.

This is unquestionably a count in case founded in tort. Whether the second is of the same character, so as to admit of being joined with the first, is the question now to be determined. The appellant’s counsel insist that while the first count is in tori, the second is in contract, and they invoke the familiar rule of pleading that actions in form ex delicto, cannot be joined with those ex contractu, whilst the appellees contend that both are in form and substance, counts in case for negligence, and were properly joined in the same action. This requires us to examine the second count and determine its true character.

It avers in substance that the mother of the plaintiffs, being seized of a certain close and farm, did, on the 11th of August, 1862, make and deliver her deed, under her hand and seal, to the defendants, and did thereby grant to them for the purpose of making and using their railroad, the right of way through her lands described in the deed, but subject to the conditions and obligations on their part, to make and keep in repair good and substantial fences between said railroad and her adjoining lands; that, by virtue of this deed, the defendants entered into the enjoyment of the right of way through the premises therein mentioned, and have since continued in possession and enjoyment thereof: that they fully accepted the ¹⁵⁴ ' lands, rights, privileges and ways so granted by said deed, and placed the same upon record, and have used, and still continue to use the right of way so granted for the purpose of their railroad ; whereupon it then and there became, and was the duty of the defendants to perform all and singular the covenants and conditions in said .deed contained, for and during the time they should remain possessed, and in the actual use and occupancy of the said right of way and land mentioned in said deed: that on the 24th of July, 1871, their said mother died, leaving the plaintiffs, her sole heirs-at-law, who ever since her death have been seized and possessed of the land and all reversions therein described in said deed, and through which the defendants have built their said railroad; nevertheless the plaintiffs say that the defendants, not regarding their said- duty in that behalf, but continuing to injure the plaintiffs in this behalf, did not, nor would after the time the plaintiffs became seized and possessed of the said close and premises, during the time the defendants remained and continued possessed of the aforesaid right of way, using the same and occupying the said land for their railroad, make and keep in repair good and substantial fences between said railroad and the adjoining lands of the plaintiffs mentioned in said ■deed of their said mother, but suffered and permitted the said fences to be and remain out of repair for a long space of time, to wit, from the said 24th day of July, 1871, hitherto, by reason whereof the plaintiffs’ land has suffered from the inroads of cattle, and their crops have been destroyed, and the plaintiffs’ cattle have been enabled to escape from their enclosure to the great damage of said plaintiffs, and the plaintiffs have been unable to cultivate and pasture their lands for want of the fences which the defendants ought to have built; wherefore the plaintiffs say they have sustained damages to the value of $5000, and therefore they bring their suit. ¹⁵⁵ The question is not whether covenant or any other form of action ex contractu could have been brought by the plaintiffs against the defendants for breach of the conditions of this deed, but whether they can maintain an action on the case founded in tort for neglect of the duty and obligation to make and keep in repair these fences and consequent damage, and whether this is a count of lhat nature. Both of these questions would seem to be answered in the affirmative by the opinions of all the Judges in Burnett vs. Lynch, 5 Barn. & Cress., 589. In that case a lessee under a lease containing covenants on his part to pay the rent, paint the premises every five years and keep the same in good repair, assigned by deed-poll his interest in the term to another, subject to the payment of the rent and the performance of the covenants contained in the lease. The assignee took possession and held the premises for a time under this assignment.

The lessor sued the executors of the lessee for breaches of the covenant committed during the time the assignee remained in possession, and recovered damages, which the executors were compelled to pay. The latter then brought an action upon the case, founded in tort against the assignee of their testator, for having neglected to perform the covenants oí’ the lease during the time he continued assignee, whereby the plaintiffs had sustained damage, and upon motion in arrest of judgment, it was held the action was well brought. All the Judges concurred in opinion that no matter whether covenant or assumpsit could have been sustained, the defendant was liable in the form of action adopted. Baile?, J., says, “it is not necessary to decide whether assumpsit or covenant will lie; but I have no difficulty in saying, that an action upon the case founded upon the tort will lie, on this ground, that from the facts stated in this declaration the law raises a duty in the defendant to perform the covenants, that there has been a breach of that duty, and that ¹⁵⁶ damage has accrued to the plaintiffs in consequence of that breach of duty.” So Littledale, J., in his judgment, says, “But it is said that the plaintiff ought to have brought assumpsit, that being the form of action best adapted to his case.

Assumpsit lies where a party claims damages in consequence of a breach of promise not under seal. That promise may be either express or it may be implied from a legal obligation to do a particular act. Where there is an express promise and a legal obligation results from it, then 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