It might as readily have stuck into a blueberry before it came to the possession of the defendant as afterwards. The carelessness of some person for whom the defendant in no way was responsible might have caused its presence in the pie. The maker of the basket, some previous owner of the berry, or some other third person, is as likely to have been the direct cause of the tack being in the pie as the defendant or those for whose conduct it is liable. The facts are quite different from those disclosed in Hunt v. Rhodes Brothers Co., 207 Mass. 30. These suggestions make it plain that this is not a case for the application of res ipsa loquitur. That doctrine may be invoked in the case of an unexplained accident which, according to the common experience of mankind, would not have happened without fault on the part of the defendant. St. Louis v. Bay State Street Railway, 216 Mass. 255, 257. It does not avail where the cause of the injury is just as likely to have been the fault of another. The mere fact of injury does not show negligence. The burden of proof resting upon the plaintiff to establish that fact must be sustained by evidence either direct or inferential. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 176. The case falls within the class of which Crocker v. Baltimore Dairy Lunch Co., 214 Mass. 177, Kusick v. Thorndike & Hix, Inc., 224 Mass. 413, and Burnham v. Lincoln, 225 Mass. 408, are examples. See in this connection Hashbrouck v. Armour & Co., 139 Wis. 357.

.

No question arises as to the contractual relations between the parties.1

In the opinion of a majority of the court, the entry must be

Exceptions sustained.

BARNES v. QUIGLEY.

COURT OF APPEALS, NEW YORK. 1874.

59 New York 265.

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of

1 See, accord, O'Brien v. Louis K. Liggett Co., 255 Mass. 553 (1926). Cf. Blanchard v. Kronick, 269 Mass. 464 (1929). On the same day that the court handed down the opinion in the principal case, it also handed down its decision in Friend v. Childs Dining Hall Co., 231 Mass. 65 (1918). In that case a woman sued the same defendant for injuries to her teeth caused by stones in a plate of beans. The action was in "tort or contract," and the plaintiff elected to rely on a count in contract alleging an implied warranty that the food was fit to eat. There was no allegation or evidence of negligence. The court held the defendant liable.

Suppose the action in the principal case had been in tort, but that the declaration had been framed on the theory of breach of an implied warranty of quality? See Schuler v. Union News Co., 295 Mass. 350 (1936). Cf. Norton v. Pomeroy, 3 Gray 372 (Mass. 1835) (express warranty); Farrell v. Manhattan Market Co., 198 Mass. 271, 275 (1908) (false warranty).

plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial.

The complaint in this action, in substance, alleged, that on the 3d day of April, 1871, plaintiff was the owner of a promissory note made by defendant, payable to the order of Britton & Co., for $2,165.86; which was indorsed by the payees and transferred to plaintiff before maturity; that prior to its maturity the payees failed and made an assignment; that on or about the day mentioned, defendant, for the purpose of deceiving plaintiff and inducing him to surrender up the note for a less sum than was due thereon, falsely and fraudulently represented that the note was made by him solely for the accommodation of the payees, he receiving no consideration whatever therefor, and that all moneys paid by him upon the note would be an entire loss, whereas the note was in fact for merchandise sold by the payees to defendant, and that he received full value for the note. That plaintiff relying upon said representations, and being ignorant of the facts, was induced thereby and did accept $582.70 less than the amount due, and surrendered up the note.

That by reason of the premises said plaintiff has been deceived and defrauded by said defendant out of said sum of $582.70, and has sustained damage to that amount.

Defendant's answer admitted the allegations of the complaint as to the making, indorsement and transfer of the note, the failure of the payees, and that he paid the sum of $1,600 in full settlement of the note, which was surrendered up to him. He denied all the other allegations of the complaint. On the trial plaintiff moved for judgment on the pleadings,' which motion was granted, and [the court] directed a verdict for the balance unpaid on the note, to which defendant's counsel duly accepted [excepted].

ALLEN, J. The complaint is for fraud, and not upon contract. Whether the facts stated constitute a cause of action is not material. The whole frame-work is in fraud, and the cause of action, as set forth, is based upon the false and fraudulent representations of the defendant, by which the plaintiff was induced to surrender and give up to the defendant his promissory note, held and owned by the plaintiff, for an insufficient consideration, an amount considerably less than its face, by reason whereof, as alleged, the "plaintiff has been deceived and defrauded out of said sum of $582.70, and has sustained damage to that amount.”

The theory of the plaintiff at the commencement of the action, and the foundation of his claim as formally made in his complaint, was, that a surrender of the note upon the receipt of an agreed sum, less than the amount actually due in satisfaction for the full sum, was equivalent to a release under seal, and effectually discharged

1 As to this procedure, see Ch. VI, § 5(3), infra.

the debt. In that view he could only recover by impeaching the release and discharge, for fraud, and he framed his complaint to meet the case in that form. His whole cause of action rested upon the alleged fraud, and it was an entire change of that cause, and a surprise upon the defendant, when this view was ignored by the counsel and the court at the trial, and a verdict ordered upon a denial in the answer of the only material allegations of the complaint. We are not to speculate upon the question whether the surrender of the note did discharge the obligation. The plaintiff assumed that it did, and brought his action to recover for the fraud by which the discharge was procured. It was error in the court to change the form of the action, by striking out or treating as surplusage the principal allegations-those which characterize and give form to the action — because, perchance, there may be facts stated by way of inducement spelled out, which would, when put in proper form, have sustained an action of assumpsit.2

The defendant was called upon to answer the allegations of fraud, and not to resist a claim to recover in assumpsit. The two forms of actions might require very different defences. This is not the case of an obligation or contract fraudulently incurred, in an action upon which the fraudulent acts of the obligor or promissor are averred, which, as they do not enter into the contract, and are not essential to the cause of action, may and should be rejected as surplusage, as in Graves v. Waite, 59 N. Y. 156, recently decided by this court. The plaintiff was not, under the complaint, entitled to a verdict and judgment, as in an action upon the note. The defendant, in preparing his answer and putting in his defence, was as unconscious of any necessity of stating and setting up any defence he might have to the note, as the framer of the complaint was innocent of any intent to make a case for a recovery upon the note, as a valid and subsisting obligation. While the Code is liberal in disregarding technical defects and omissions in pleadings, and in allowing amendments, it does not permit a cause of action to be changed, either because the plaintiff fails to prove the facts necessary to sustain it, or because he has mistaken his remedy, and the force and effect of the allegations of his complaint. Code, § 173; DeGraw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 Id. 108; Elwood v. Gardner, 45 Id. 349. The judgment must be reversed and a new trial granted, costs to abide the event.

All concur in result.

Judgment reversed.3

1 That the surrender of the note did discharge the obligation, see 6 Williston, Contracts (rev. ed. 1936) § 1878.

2 Cf. Bunge v. Koop, 48 N. Y. 225 (1872)..

3 See Albertsworth, "The Theory of the Pleadings in Code States," 10 Calif. L. Rev. 202 (1922). For other illustrations of this doctrine, see Wilson v. Haley Live Stock Co., 153 U. S. 39 (1894) (Colorado law); Mescall v. Tully, 91 Ind. 96 (1883); Degraw v. Elmore, 50 N. Y. 1 (1872); Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220 (1915).

KNAPP v. WALKER.

SUPREME COURT OF ERRORS, CONNECTICUT. 1900.

73 Connecticut 459.

ACTION to recover damages for breach of contract and for fraud in an exchange of horses, brought originally before a justice of the peace and thence, by the defendant's appeal, to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. No error.

The complaint alleged that the defendant owned a gray mare which he represented to be worth $100, which he offered to exchange for a gray horse owned by plaintiff, of the value of $100; that by agreement with the defendant, the plaintiff, believing the statements of the defendant to be true, left his gray horse at a certain livery stable, where it was taken by the defendant, but that the defendant failed to leave his gray mare at said place, as had been agreed, but left a bay mare which was of no value and which afterwards died; that plaintiff immediately, when said bay horse was brought to his house by his hired man, notified the defendant that the bay mare was unsatisfactory.

Paragraphs 7 and 8 of the complaint were as follows: "7. The defendant at the time the agreement was made did not have the gray mare in his possession, and did not intend to deliver the same as he had agreed, but falsely and fraudulently represented to the plaintiff that he had such a gray mare and that he would deliver the same as aforesaid, and thereby induced the plaintiff to part with his said horse. 8. The defendant made said statements knowing them to be false, with intent thereby to make said exchange and defraud him."

The complaint asked for $100 damages.

The answer denied the material allegations of the complaint.

The court found the facts substantially as alleged in the complaint, excepting that paragraphs 7 and 8 were untrue, and found that the gray mare, which the defendant had promised to deliver to the plaintiff, was at the time of the exchange of the value of $30.

The defendant claimed that from the averments of the complaint the action was for damages for the alleged fraud of the defendant; and that since the complaint contained but a single count alleging fraud, it could not properly be interpreted as also describing a cause of action upon a contract for which the plaintiff could recover after having failed to prove the fraud alleged. The court overruled said claims and rendered judgment for the plaintiff for $30.

Cf. Millar, "The Old Regime and the New in Civil Procedure," in 1 Law: A Century of Progress, 1835-1935 (1937), 207, 240-241; Simpson, "A Possible Solution of the Pleading Problem," 53 Harv. L. Rev. 169, 186 (1939).

HALL, J. A cause of action for breach of a contract for the exchange of personal property, and one for fraud in inducing the plaintiff to part with his property by means of false representations, may be united in the same complaint when both causes of action arise "out of the same transaction or transactions connected with the same subject of action." General Statutes, § 878.

Though different rules of damages may be applicable to the two causes of action, yet when a recovery can be had upon but one, and both arise "out of the same transaction or transactions connected with the same subject of action," they may both be stated in one count. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 562.

The complaint before us, containing but one count, describes a cause of action for fraud. It alleges that the defendant by certain false and fraudulent representations, which are set forth, induced the plaintiff to part with his horse of the value of $100. It also describes a cause of action for breach of contract. It alleges that the defendant failed to perform his agreement to deliver a certain gray mare in exchange for the horse which he had received from the plaintiff. The dealings between the plaintiff and defendant with reference to an exchange of horses was the transaction out of which both the alleged causes of action arose, and a statement of all the claimed facts of the entire transaction therefore involved a statement of both of said causes of action.

Under our practice the plaintiff had the right to state in one count the entire transaction, and to submit to the court the question. whether, upon the facts, he was entitled to recover the value of the horse which he had delivered to the defendant, upon the ground that he had been induced to part with it by the defendant's fraud, or only the value of the horse which the defendant had promised to deliver to him in exchange, upon the ground that his only right of action was for breach of contract.

The court having found that the defendant failed to perform his agreement, but that there was no fraud in the transaction, properly rendered a judgment for damages for breach of contract. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551; Metropolis Mfg. Co. v. Lynch, 68 Conn. 459, 470.1

There is no error.

In this opinion the other judges concurred.2

1 See, contra, Ross v. Mather, 51 N. Y. 108 (1872).

2 In Cockrell v. Henderson, 81 Kan. 335, 337 (1909), the court said: "Much space is occupied in the briefs in the discussion of the question whether the plaintiff's action was based upon fraud and deceit or upon contract. Some controversy also arose between the trial court and the plaintiff's attorney on this question, and the court indicated that the plaintiff should elect upon which theory he would try the case, and upon the refusal of the attorney verbally to elect and upon his statement that he relied only upon his petition the court said that the plaintiff's attorney had already indicated that he relied upon contract.