Howard v. Ritchie

[103] The opinion of the court was delivered by Brewer, J.: The petition sets forth a contract for services;; that the services Avere to be rendered Avith care and skill; that they Avere carelessly and negligently performed; that in consequence thereof the personal property of .plaintiff was injured,,- and that the carelessness and negligence Aras .the sole cause of the injury. The transaction is alleged to have-happened more than íavo and less than three years before the commencement of this suit. The district court held that this action camewithin the provisions of the third clause of § IS of the civil code, Avhich limits to two years the bringing of actions “ for-taking, detaining or injuring personal property,” and henceAvas barred. In this we think the learned judge erred. The action is one for breach of contract. The breach of the contract gives the right to relief. The injury to the property determines the amount of damages. The legitimate order of’ OAddence under this petition Avould be, first, the contract, their the breach, and last the amount of damages. The fact that the breach of the contract resulted in injury to specific personal property Avould not reduce the time Avithin Avhich an action might be brought beloAV that Avhich a party Avould have in case of any other breach of contract. That time,, if the contract be in Avriting, is Jive years, otherwise, three. The-plaintiff’s cause of action Avas not barred, and the judgnientof the district court must be reversed. All the Justices concurring.