ELECTION BETWEEN TORT AND CONTRACTCREATING CAUSE OF ACTION 10. The party wronged cannot, merely by waiving what is essentially a tort, create a cause of action in con tract, nor, by waiving what is essentially a cause of action in contract, create a tort. Rule Applied The word "create" should be emphasized. We have hitherto pointed out the essential differences between the contract and tort concept, and have noted the border-line cases where suit may be brought on either theory, as well as those of quasi contracts arising by pure implication of law. But, however clear the distinction may be between the two classes of rights, the line of demarcation is in fact by no means well defined, and many cases exist showing a failure of counsel to view the cause of action from a proper standpoint. One of the leading decisions is found in Bigby v. United States.100 Here plaintiff had been injured in an elevator operated in a federal building. The jurisdiction of the United States Court of Claims did not cover cases of tort, but it did extend to cases of "contract expressed or implied." Plaintiff's contention was that he might sue on an implied contract with the government to carry him safely, analogous to that of the common carrier; but the wrong, if any, was held to be a pure tort founded on negligence.101 On the other hand, it is equally well settled that "the plaintiff cannot, by changing the form of his action, change the nature of the defendant's obligation, and convert that into a tort which the law deems to be a simple breach of an agreement." 102 Thus, where a reorganization agreement made by the bondholders of an insolvent railway company confers up 100 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519. 101 And see, for further illustrations, Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721; Raymond v. Lowe, 87 Me. 329, 32 Atl. 964; Noyes v. Loring, 55 Me. 408; St. John v. Antrim Iron Co., 122 Mich. 68, 80 N. W. 998; North Haverill Water Co. v. Metcalf, 63 N. H. 427. 102 Per Brown, J., in Walter v. Bennett, 16 N. Y. 250, 252. on a committee the title to the bonds, authorizing them to prepare a plan of reorganization and give notice thereof to the bondholders, so that any of them might withdraw from the agreement if the plan should not be satisfactory, with further power in the committee to form a new corporation and use the bonds for the purpose of purchasing any of the assets and franchises of the old company, an action against the members of the committee for using the bonds to pay the purchase price of the railway's property bid in by them, without first making a plan of reorganization and giving notice thereof, must be brought for breach of contract; there being no wrong to be redressed on the theory of tort.103 It was here pointed out that the wrong, if any, for which a bondholder might bring his action, consisted in the one fact of the failure to file a plan of reorganization. In so doing the com-mittee violated the reorganization agreement, and whatever responsibility attached to them was based on and limited thereby. So, where a contract made with an agent requires him to guarantee all sales and to remit the proceeds thereof, the agent's failure to collect the amounts due from the purchasers is not a tort. The principal's remedy is by suit on the guaranty.101 But perhaps the rule is best illustrated where relief has been unsuccessfully sought in tort in actions founded on allegations of fraud. As will be seen later,105 in order that this tort must exist, it is necessary that the fraudulent representations under which plaintiff was induced to act relate to past or existing facts. A mere promise or declaration of intention will not be sufficient, unless there was no design on defendant's part at the time to perform it. To hold otherwise would plainly destroy all distinction between tort and contract. Hence, where defendant had obtained plaintiff's signature to a note by certain representations as to what would be done with the proceeds,100 or to an assignment of patent 103 Industrial & General Trust v. Tod, 170 N. Y. 233, 63 N. E. 285. 104 Standard Fertilizer Co. v. Van Valkenburgh, 21 Misc. Rep. 559, 47 N. Y. Supp. 703. 105 See infra, p. 397. 106 Dickinson v. Atkins, 100 Ill. App. 401. rights, royalties, etc., by promising to furnish funds for the purpose of carrying on a certain business,107 or had brought about an exchange of farms by representing that the interest on a certain mortgage would be paid,1 an action based on an alleged tort cannot be maintained.109 108 The importance of selecting the proper form of action cannot be underestimated. True, the tendency is now as strongly toward liberality in construing pleadings as it was formerly the reverse; but misconception by the pleader of the particular right, whether ex delicto or ex contractu, on which an action is based, may prove fatal.110 If an action is plainly brought on one theory, the plaintiff cannot, merely by proving a state of facts showing injury had he brought it on the other, be permitted to recover.111 But, if a cause of action essentially on contract is properly set forth, the courts will be liberal in holding that mere allegations of bad faith, fraud, or negligence are not sufficient to convert it into an action in tort,112 and in New York it is well established that if facts are set forth in a complaint which constitute a cause of ac 111 107 Smith v. Parker, 148 Ill. 127, 45 N. E. 770. 108 Alletson v. Powers, 72 Vt. 417, 48 Atl. 647. 109 And see, further, as illustrating the principle stated, Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404; Henry W. Boettger Silk Finishing Co. v. Electrical Audit & Rebate Co. (Sup.) 115 N. Y. Supp. 1102; Grove v. Hodges, 55 Pa. 504. 110 The New York Code of Civil Procedure although it abolishes forms of pleading previously existing, did not change the distinction between actions in tort and those on contract. Barnes v. Quigley, 59 N. Y. 265; Austin v. Rawdon, 44 N. Y. 63. 111 Manker v. Western Union Tel. Co., 137 Ala. 292, 34 South. 839; Neudecker v. Kohlberg, 81 N. Y. 297; Degraw v. Elmore, 50 N. Y. 1; Postal v. Cohn, 83 App. Div. 27, 81 N. Y. Supp. 1089, holding that where an action was brought for fraud in falsely warranting the soundness of a horse, recovery could not be had on contract, plaintiff having failed to prove defendant's knowledge of the falsity of the representation at the time it was made; Katzenstein v. Raleigh & G. R. Co., 84 N. C. 688; Osborn v. First Nat. Bank of Athens, 154 Pa. 134, 26 Atl. 289; Welker v. Metcalf, 209 Pa. 373, 58 Atl. 687; Francisco v. Hatch, 117 Wis. 242, 93 N. W. 1118. 112 Garcelon v. Commercial Travelers' Mass. 8, 67 N. E. 868, 100 Am. St. Rep. 540 Eastern Acc. Ass'n, 184 tion on either theory, and there is nothing in the complaint to show whether the plaintiff sues in tort or on contract, he will be permitted to recover such a judgment as is warranted by the facts proved.118 STATUTORY TORTS 11. Though the majority of torts have a common-law origin, many are purely statutory. The duty may have been created by legislative act, and for its violation a liability will arise to an individual for whose protection it was imposed, where damage of the character which the statute was designed to prevent has proximately resulted. With the advance of civilization, legislation becomes necessary to safeguard the rights of the individual against new dangers,114 or to supply the deficiencies of the common law. by creating entirely new rights. Thus, until the passage of Lord Campbell's Act in England in 1846, no right of a personal representative or next of kin was considered to be violated by the negligent or willful killing of a human being, however great might be the resulting damage. 115 Valuable kinds of property and privileges, like patents and copyrights, with their corresponding rights and duties, are matters of Bank, 171 N. Y. 219, 63 N. E. 969, 57 L. R. A. 529; Ledwich v. McKim, 53 N. Y. 307; Jones v. Leopold, 95 App. Div. 404, 88 N. Y. Supp. 568; Van Oss v. Synon, 85 Wis. 661, 56 N. W. 190. 113 Bradbury's Rules of Pleading, p. 3; Conaughty v. Nichols, 42 N. Y. 83. In Georgia it has been held that if the allegations are equivocal the action will be deemed in tort. Central of Georgia R. Co. v. Chicago Portrait Co., 122 Ga. 11, 49 S. E. 727, 106 Am. St. Rep. 87. 114 As by requiring the erection of fire escapes on apartment houses, WILLY v. MULLEDY, 78 N. Y. 310, 34 Am. Rep. 536, Chapin Cas. Torts, 10; or factories, Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194. 115 Carey v. Berkshire R. Co., 1 Cush. (Mass.) 475, 48 Am. Dec. 616; The Harrisburgh, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358. It is believed that this statute has been adopted in every state, though necessarily with some modifications. statutory creation, "liquor laws" in many states permit one who is injured by an intoxicated person to bring an action. against the seller under certain conditions,116 and in one state at least the so-called "right of privacy," which protects an individual against the unauthorized use of his name or picture for advertising purposes, owes its origin to specific legislation.117 Public or Private Duties Statutes of this character may assume such diverse forms that anything like a clear statement of underlying principles becomes well-nigh hopeless. There can, of course, be no doubt where the act specifically gives a cause of action to the individual aggrieved. But all legislation is not so clear, and many difficult questions have arisen in consequence. A new crime is created. Hitherto the commission of the act has resulted in damnum absque injuria. Will the creation of a penal liability, apparently to the state alone, give rise to a civil right? Thus the Legislature passes an act prohibiting the operation of unlicensed ferries under a penalty of $5. A licensed ferryman sues in tort one who has no license, on the theory that the wrongful acts of the latter had disturbed the enjoyment of plaintiff's right. But plaintiff having at the common law no right to the exclusive enjoyment of his ferry, and the statute having undertaken to state just what the remedy should be, he could recover only the specific penalty imposed.118 Again, where an act requires a certain waterworks company to keep its pipes charged with water at a given pressure under a penalty of £10., half of which is to go to the informer, there can be no cause of action in favor of one whose buildings are destroyed by fire owing it is alleged, to the lack of 116 McMahon v. Sankey, 133 Ill. €36, 24 N. E. 1027; Ward v. Thompson, 48 Iowa, 588; Gardner v. Day, 95 Me. 558, 50 Atl. 892; George v. Gobey, 128 Mass. 289, 35 Am. Rep. 376; Lucker v. Liske, 111 Mich. 683, 70 N. W. 421; Quinlan v. Welch, 141 N. Y. 158, 36 N. E. 12; Sibila v. Bahney, 34 Ohio St. 399; Davies v. McKnight, 146 Pa. 610, 23 Atl. 320. 117 Consol. Laws N. Y. 1909, c. 6, art. 5, §§ 50, 51; and see infra, p. 288. 118 Almy v. Harris, 5 Johns. (N. Y.) 175. 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