While contract is ordinarily clearly distinguishable from other legal concepts such as tort, testament and the like, there are a number of instances in which two of these ideas merge into one another and in which frequently for procedural reasons, it is important to know which form of liability exists. As long as the common law forms of action persisted, the distinction between tort and contract was of the greatest practical importance, since the selection of the wrong form of action resulted in the defeat of the plaintiff. Under the code of civil procedure, the distinction between tort and contract as far as the plaintiff's declaration is concerned, has ceased to have legal significance; and in most jurisdictions a plaintiff who has set up the facts which entitle him to relief, may recover upon such facts; and it is not necessary for the plaintiff to elect between contract and tort, or for the court to decide which the nature of his action is.1 If a right of action as upon a fraudulent warranty might be based either in contract or in tort, it is not necessary that the plaintiff should state in his petition upon which he relies as the basis of his action.2 The distinction between contract and tort may still be important when other questions of procedure and practice are involved. The distinction may be material when the jurisdiction of the court is involved,3 or the application of the statute of limitations,4 or when such distinction affects the measure of damages,5 or the right to imprison the judgment debtor,6 or the survivorship of the action.7 In cases of this sort, however, the question is not so much the nature of the right in the abstract as the construction of the constitutional or statutory provision which is involved.

1 Freeby v. Sibley, - la, - , 167 N. W. 770; Cockrell v. Henderson, 81

Kan. 335, 50 L. R. A. (N.S.) 1, 105 Ac. 443.

Sec. 57. Basis of distinction between contract and tort If the only duty which the defendant owes to the plaintiff arises out of the defendant's promise and the only wrong complained of is the failure of the defendant to perform such promise, the plaintiff's right is contract only.1 A breach of a promise of marriage, accompanied by seduction, can not be treated as a tort, on the theory that the seduction amounts to assault and battery.2

If the defendant owes a duty to the plaintiff independent of contract and the parties have entered into a contract by which the defendant agrees to perform such legal duty, or if upon the formation of a contract a legal duty attaches over and above the terms of the contract, the plaintiff may treat the injury as a tort or as a breach of contract at his election.3 If A knowingly sells to B animals which are suffering from a contagious disease, B may treat the injury thus caused as a breach of contract or as a tort at his election.4 If a wrong has been committed which is a tort in its nature, the fact that a contract between the parties gave an opportunity for such tort, does not prevent the plaintiff from treating the liability as a tort if he so wishes.5 If A enters into a contract with B, a railroad company, by which A surrenders his claim for damages growing out of the closing of a bridge which gives access to his property in consideration of the covenant of the railway company to maintain a depot at its original location, and if A makes such contract because he owns buildings near such depot, which are used as stores and upon which he has given a mortgage to secure his indebtedness incurred in the construction of such buildings, the act of the railway company in refusing to maintain such depot and in inducing the mortgagee to bring foreclosure pro-ceedings by which A is deprived of his property as well as of his claim for damages, is a wrong which A may, if he pleases, treat as a tort.6 One whose land has been sold by his agent and who seeks to recover the proceeds from the bank with which such proceeds have been deposited, may treat such conduct as fraud and seek relief upon that ground.7

2 Cockrell v. Henderson, 81 Kan. 335, 50 L. R. A. (N.S.) 1, 105 Ac. 443.

3 Busch v. Interborough Rapid Transit Co., 187 N. Y. 388, 10 Am. & Eng. Ann. Cas. 460, 80 N. E. 197.

4 Russell v. Polk County Abstract Co., 87 la. 233, 43 Am. St. Rep. 381, 54 N. W. 212.

5 Attleboro Mfg. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 Fed. 573; Farabee-Treadwell Co. v. Union & Planters' Bank & Trust Co., 135 Tenn. 208, L. R. A. 1916F 501, 186 S. W. 92.

6 Breithecker v. Dallas, 87 N. J. L. 362, 94 Atl. 307.

7 Keiper v. Anderson, 138 Minn. 392, L. R. A. 1918C 299, 165 N. W. 237; Lane v. Frawley, 102 Wis. 373, 78 N. W. 593.

1 Tuttle v. Gilbert Mfg. Co., 145

Mass. 169, 13 N. E. 465; Breithecker v. Dallas, 87 N. J. L. 362, 94 Atl. 307. See also, What is Chose in Action? by Sir H. W. Elphinstone, 9 Law Quarterly Review, 311; Is a Right of Action in Tort a Chose in Action? by T. C. W., 10 Law Quarterly Review, 143; Choses in Action, by Charles Sweet, 10 Law Quarterly Review, 303; Choses in Action, by Charles Sweet, 11 Law Quarterly Review, 238.

2 Breithecker v. Dallas, 87 N. J. L. 362, 94 Atl. 307.

3 Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 12 L. R. A. (N.S.) 924, 79 N. E. 503; Rich v. New York Central & Hudson River R. R., 87 N. Y. 382; Hobbs v. Smith, 27 Okla. 830, 34 L. R. A. (N.S.) 697, 115 Ac. 347.

It will be noted from the discussion following, that the cases which make the greatest confusion now between tort and contract belong to the same class of cases as those in which the confusion originated.8 There are the cases in which a contract has been performed in an improper manner so as to impose a liability upon the party who has thus performed. Whether this liability is a contract liability or a tort liability is a question which was troublesome at the early common law; and they survive as a source of litigation wherever modern procedure still distinguishes between contract and tort.

If one party owes to the other a duty which arises solely out of contract, such duty can not be extended beyond the terms of the contract,9 so as to include consequential damages which could have been recovered if the act complained of had been a breach of a duty imposed by law.10

4 Hobbs v. Smith, 27 Okla. 830, 34 L. R. A. (N.S.) 697, 115 Ac. 347. , [Part of the injury complained of consisted in the communication of such disease to other animals belonging to B.]

5 Rich v. New York Central & Hud-eon River R. R., 87 N. Y. 382; Freeman v. Boland, 14 R. I. 39.

6Rich v. New York Central & Hudson River R. R. Co., 87 N. Y. 382.

7 Fix v. Rose, - Okla. - 166 Ac. 145.

8 See Sec. 25.

9 Atlantic Gulf & Phillipine Co. v. Phillipine Islands, 219 U. S. 17, 55 L. ed. 70.