Harper v. Interstate Brewery Co.

At the close of all the evidence the defendants moved to require the plaintiffs to elect whether they were proceeding in contract or tort. Plaintiffs elected to proceed in tort. Immediately upon the election being made by plaintiffs the defendants moved for a directed verdict upon the asserted ground that the complaint fails to state a cause of action in tort and in support of the motion counsel stated:

“ * * * it is our position that in this the contract which has been admitted in the case, when construed in the light of surrounding circumstances as it must be, does not raise any obligation…