Badger v. Benedict

IN graham, First Judge. — The demurrer only states one ground for demurring, viz.: that, in tbe complaint, several causes of action are improperly joined together. All tbe causes of action stated in the complaint arise o.ut of one transaction, viz.: for printing a book for the plaintiff, from stereotype plates furnished by her. Tbe complaint sets out tbe contract and the payment of money on account of it; that tbe defendant neglected to perform bis contract, suffered tbe plates to be destroyed, and thereby exposed tbe plaintiff to loss and damage. There is nothing in this complaint but what may be said to be founded on contract. Tbe defendant was bound by bis agreement to print tbe book, to take care of the plates, and to return them to tbe owner; and when be violated all or any of these obligations, be violated tbe contract. It does not follow, because the plaintiff might have instituted an action for the tort occasioned by the defendant’s negligence, that she may not, if she so elects, seek her redress in an action upon the implied con tract. She may elect either, and is not confined to tbe remedy for the tort. These causes of action all arise out of one transaction, and may all be said to be founded on the contract. The 167th section of tbe Code allows them to be united together. [420] It is unnecessary to decide whether an omission to state causes of action separately is a ground of demurrer, because no such ground is stated in the demurrer in this case, and is not, therefore, available. Sect. 145. Order at special term affirmed, with costs.