Louisville & Nashville Railroad v. Hurt

Cobb, P. J. (After stating the facts). It is. conceded by counsel that under the ruling in Atlanta, Knoxville & Northern Railway Company v. Newman, 128 Ga. 281, 57 S. E. 514, the petition set forth no cause of action against the Atlanta, Knoxville & Northern Railway Company. The judgment, therefore, will be reversed in any event so far as that company is concerned. Treating the petition as one in which suit against the Louisville and Nashville Railroad Company alone is brought, is it subject to the objection, that it sets forth two causes of action, one ex contractu and the other ex delicto, and is therefore subject to demurrer upon the ground that there is a misjoinder of causes of action? The concluding paragraphs of the petition unquestionably set forth a cause of action ex delicto. This is conceded. The question is, what is the character of the cause of action set forth [236] in the first part of the petition, which relates to the agreement to build a- depot and establish a station on the land of the plaintiff ? The "definite allegation of the petition is that the defendant, through its authorized agents, agreed to do this. If they did, the undertaking amounted to a contract between the parties. They have refused to do it, and hence there has been a breach of the contract, and damages are claimed for this wrong. Unquestionably if the agreement between the railroad company and the plaintiff was an enforceable contract, the plaintiff, in an action ex contractu, could recover damages for its breach. But counsel say that their petition, properly construed, is not brought for a breach of the contract. Their contention is that the defendant obtained the plaintiff’s land by fraudulent misrepresentations, and that they have a right to bring an action for damages and make it pay for the land taken. Counsel do not characterize the form of action which they claim the petition sets forth, but in the way in which it is described by them it must be considered as in the nature of an action for deceit; a cause of action made up out of the two elements of fraud- and injury. The basis of the cause of action, whatever it may be, is the contract. The right of action -of the plaintiff must therefore be one that can be enforced either in an action ex contractu for a breach of the -contract, or in an action for a tort arising out of a breach of some duty which the contract imposes.- As was said by Presiding Justice'-'1 Lumpkin, in Louisville & Nashville Railroad Co. v. Spinks, 104 Ga. 695: “Every person who makes a contract of any kind is, of course, under a duty of performing it; but it would never do to hold that every breach of a civil contract, though necessarily in a sense involving a breach of the duty thereby imposed, would give rise to an action ex delicto.” In order to sustain that part of the petition which relates to the agreement to locate a station, it will be necessary to construe the suit as a cause of action for deceit, or in the nature thereof. Before this can be done, it must appear that there was actual fraud in the statements relied on. The petition expressly negatives intentional fraud. We do not think that the petition can be properly construed as setting forth a cause of action as for a deceit. It is an action for the damages resulting from a failure to comply with the contract. There is no duty alleged growing out of the contract, except merely the [237] duty of performance in manner and form as the contract provides for. If an action of tort would lie in this case, then an action of tort would lie in any case where the vendee of the land refuses to pay the purchase-money. Properly construed, the petition set ■forth two causes of action, one ex contractu and the other ex delicto, and was subject to the demurrers urged against it. Judgment reversed. All the Justices concur.