Lemon v. BUCHAN LUMBER COMPANY

Plaintiff's cause of action is laid in tort and not in contract. The fact alleged and admitted) by the demurrer that defendant, having a contract to deliver yellow pine had in fact delivered a mixture of yellow and white pine gave plaintiff no right of action. The damages, if any, resulting from the breach of contract by delivery of a less valuable article could only be claimed by the purchaser.

Plaintiff, if she is to recover, must allege some breach of duty owing her' intestate by defendants which proximately caused his death. Recognizing this requirement, she -alleges the lumber was sold…