Ashley v. Root

Chapman, J. The instruction to the jury that the plaintiff was not entitled to recover in this action the sum of $2250 collected by the defendants and in their hands as his agents was erroneous. The defendants’ counsel contends that it was correct, because the declaration is in tort, and this sum can only be recovered in an action of contract. It is true that the declaration is in tort. It alleges among other things that the defendants were the agents of the plaintiff, and as such undertook to collect and secure a certain note of $2500 ; that they collected the sum of $2250 on the note, and lost the balance, and refused to pay over the money collected upon the plaintiff’s demand, and that their conduct was negligent and fraudulent and a breach of their duty as agents. This is one of the numerous classes of cases where a party may elect to sue either in contract or tort. At common law he might sue in assumpsit for breach of contract, or in case for breach of duty. The general rule is well stated in Courtenay v. Earle, 10 C. B. 73, that where there is an employment, which [506] employment itself creates a duty, an action on the case will lie for a breach of that duty, although it may consist in doing something contrary to an agreement made in the course of such employment, by the party on whom the duty is cast. See also Church v. Mumford, 11 Johns. 479, where the doctrine is applied to the case of a breach of duty by an attorney; and Howe v. Cook, 21 Wend. 29 ; Gilbert v. Williams, 8 Mass. 51; Dearborn v. Dearborn, 15 Mass. 316 ; Dwight v. Brewster, 1 Pick. 50. The jury should have been instructed that the plaintiff could recover in an action of tort for all the injury which had been caused by the defendants’ breach of duty, whether in the loss of security or the neglect to pay over on demand the money which they had collected as his agents. The proof of the statutes of Iowa was in conformity with the provision of Gen. Sts. c. 131, § 63. As to certain other questions argued in respect to the admission of testimony, they may not arise upon a new trial, and therefore it does not seem to be necessary to decide them. Exceptions sustained.