If the duty of one party to construct a wall or building grows out of contract, the failure to perform such agreement is a breach of contract and not a tort,1 even if as a result of such failure to perform, an injury is inflicted upon the other property of the promisee.2 If the promisor performs in a negligent manner, he may be held liable in tort,3 for injury inflicted upon other property of the promisee by reason of such negligence.4 One who has made false representations with reference to a thing which he has sold and who has given a warranty of the truth of such representations, may be held in contract or tort at the election of the injured party.5 The injured party may maintain an action upon such fraudulent warranty on the theory of contract,6 or upon the theory of tort.7