Kyle v. Chester

MR. JUSTICE SMITH delivered the opinion of the court. After this action was begun the plaintiff, D. C. Kyle, died, and Mary A. Kyle, as administratrix, was substituted. [526] It is alleged in the complaint that the defendant negligently drove eight steers belonging to the plaintiff onto the inclosed right of way of the Great Northern Railway, where they were killed by a passing train. The last paragraph alleges that the defendant thereby became indebted to the plaintiff for the value of the steers. "With his complaint the plaintiff filed an affidavit for attachment in the form required by statute, wherein he also alleged that he had sold and delivered the steers to the defendant at the latter’s request. The writ was issued by the clerk, but the district court of Valley county afterward, on defendant’s motion, entered an order discharging the attachment. From that order an appeal has been taken. We think the order was properly made. This is not a case wherein the plaintiff may sue as upon an implied contract, waiving the tort, as is the familiar expression. As long ago as 1810, in the case of Whiting v. Sullivan, 7 Mass. 107, Chief Justice Parsons said: “The law will not imply a promise of any person against his own express declaration; because such declaration is repugnant to any implication of a promise.” In Webster v. Drinkwater, 5 Greenl. (Me.) 319, 17 Am. Dec. 238, the court said: “It is a principle well settled that a promise is not implied against or without the consent of the person attempted to be charged by it. * * * And where one is implied, it is because the party intended it should be, or because natural justice requires it, in consideration of some benefit received.” Chief Justice Beardsley said in Osborn v. Bell, 5 Denio, 370, 49 Am. Dec. 275: “It was not shown [ón the trial of this case], that the defendant received any benefit from the seizure and sale of the property. No express promise to pay for the goods was pretended, and every feature of the transaction repels the idea that the defendant intended to have one implied from what he did. He may have been a trespasser, but I see no ground on which he can be held liable for these goods as sold to him. If he can be, such an action is, in almost every imaginable case, a concurrent remedy with trover, replevin, and trespass for personal property. It may be a con [527] current remedy where the property has been appropriated by a wrongdoer to his own use; but unless that fact is shown, I think no case will be found in which it has been held that a promise to pay for the goods is implied by law. ’ ’ The supreme court of Wisconsin, in Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782, held that the rule laid down in Webster v. Drinkwater, supray correctly embodies the governing principle upon which the law raises a promise to pay. In the ease of Tightmeyer v. Mongold, 20 Kan. 90, the court held that where one’s cattle had damaged the crops of another, and there was no testimony showing that the owner of the cattle had benefited thereby, the owner of the crops had no right of election, but must bring his action ex delicto. The court, in the course of the opinion, said: “The whole discussion of waiving the tort and suing on the contract is reduced to the single question, When is a promise implied by the law? ” The case of Webster v. Drinkwater, supra, is then cited with approval. The same court in Fanson v. Linsley, 20 Kan. 235, said: “We do not think that the cause of action stated in defendant’s third defense is a proper subject of either setoff or counterclaim. It does not appear from such defense that the plaintiff received or expected to receive any benefit from his wrongdoing, and the relief asked for by the defendant is not for the value of any benefit resulting to the plaintiff, but is for damages sustained by the defendant. The cause of action therefore does not arise from any contract, express or implied.” (See, also, National Trust Co. etc. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632; New York G. & T. Co. v. Gleason, 78 N. Y. 503.) The rule is well stated in Cooper v. Cooper, 147 Mass. 370, 9 Am. St. Rep. 721, 17 N. E. 892, as follows: “The same act or transaction may constitute a cause of action both in contract and in tort, and a party may have an election to pursue either remedy. In that case he may be said to waive the tort and sue in contract. But a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them, upon which assumpsit can be maintained.” Ordinarily, when the conduct of a person is such as to raise a clear presumption that he does not intend [528] to do a certain act, he will not thereafter be charged with such intention by implication. (State Bank v. Forsyth, 41 Mont. 249, 108 Pac. 914, 28 L. R. A., n s., 501.) In the light of the foregoing authorities it is clear that the district court correctly held that the complaint did not state a cause of action in contract, either express or implied. The case of Monroe v. Cannon, 24 Mont. 316, 81 Am. St. Rep. 439, 61 Pac. 863, is illustrative of that class of cases in which the defendant derived a benefit from his wrongful act; but we find nothing in the record of this case to indicate that defendant received any benefit from his act. The affidavit for attachment does not set forth the same cause of action found in the complaint. This affidavit may have been sufficient on its face to warrant the clerk in issuing the writ (see Newell v. Whitwell, 16 Mont. 243, 40 Pac. 866), but the court must look to the complaint to ascertain whether it states a cause of action in contract, express or implied. The fundamental question is whether the complaint states such a cause of action. As this complaint does not, the attachment was properly discharged. (Revised Codes, sees. 6656, 6681, 6683.) The order is affirmed. Affirmed. Mr. Chibe Justice Brantly and Mr. Justice Holloway concur.