Hulett v. Pixley
Massachusetts Supreme Judicial Court
This action was described in the writ (which contained no declaration) as an action of contract. The declaration after-wards filed contained counts in contract, to which, “ deeming it doubtful whether this is a cause of action in contract according to chapter 129 of the General Statutes, the plaintiff adds a count in tort, averring that each count is for the same cause of action.”
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This action was described in the writ (which contained no declaration) as an action of contract. The declaration after-wards filed contained counts in contract, to which, “ deeming it doubtful whether this is a cause of action in contract according to chapter 129 of the General Statutes, the plaintiff adds a count in tort, averring that each count is for the same cause of action.” The defendant demurred to the declaration, because the plaintiff had joined a count in tort with counts in contract, contrary to the provisions of that chapter. In the superior court, Rockwell, J., overruled the…
1Opinion of the CourtGray, J.
The demurrer was rightly overruled. The provision *30of the practice act, authorizing a count in contract to be joined with a count in tort, when it is deemed doubtful to which class the cause of action belongs, does not prescribe how the action shall in such case be entitled; and was enacted in order to enable a plaintiff, by declaring in the alternative, to avoid the danger of a variance between the allegation and proof in a doubtful matter of form. It may be that the name given to the i action in the writ would affect the form of affidavit necessary to warrant an arrest on mesne process ; and…
2Cited by3 opinions
- May v. Western Union Telegraph Co.Massachusetts Supreme Judicial Court · 1873
- Hacker v. NitschkeMassachusetts Supreme Judicial Court · 1942
- Cammisa v. FerreiraMassachusetts Supreme Judicial Court · 1931