Ashley v. Root
Massachusetts Supreme Judicial Court
The writ in this case averred that the action was “ an action of contract, or an action of tort, both being for one and the same action.”
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The writ in this case averred that the action was “ an action of contract, or an action of tort, both being for one and the same action.” The declaration contained but one count, setting forth that the defendants, who were agents for lending money in Lyons, Iowa, undertook to collect for the plaintiff a note for $2500, given for money lent by him in Iowa through their agency, and by their fraudulent, wrongful and negligent conduct succeeded in collecting only $2250 thereof, and refused to pay to him that sum, though requested. The action was tried as an action of tort. At the trial in the…
1Opinion of the CourtChapman, J.
The instruction to the jury that the plaintiff was not entitled to recover in this action the sum of $2250 collected by the defendants and in their hands as his agents was erroneous. The defendants’ counsel contends that it was correct, because the declaration is in tort, and this sum can only be recovered in an action of contract. It is true that the declaration is in tort. It alleges among other things that the defendants were the agents of the plaintiff, and as such undertook to collect and secure a certain note of $2500 ; that they collected the sum of $2250 on the note, and lost the…
2Cases cited3 opinions
- Gilbert v. WilliamsMassachusetts Supreme Judicial Court · 1811
- Church v. MumfordNew York Supreme Court · 1814
- Howe v. CookNew York Supreme Court · 1839