Pinehurst Peach Co. v. Norfolk Southern Railroad

The demurrer to the original complaint was properly sustained. Therefore, the only question is whether the amended complaint proceeds upon the theory of common-law liability for negligence for failure to furnish cars, or upon damages resulting from the breach of an express contract to furnish specified cars at a specified place on a specified date.

Paragraph 10 of the amended complaint alleges that the plaintiff was caused to suffer damage by reason of the wrongful and negligent failure of defendant to furnish cars within a reasonable time and in accordance with the order of the plaintiff. The…