Opinion
March, 1905.
C.N. Bovee, for the appellant.
George W. Elkins [ James M. Hunt with him on the brief], for the respondent.
The avowed purpose of this motion is to compel the plaintiff to state whether the cause of action set out in the complaint is a cause of action upon contract or a cause of action in tort. We think that this is an action upon the case in tort for a breach of a warranty of goods, and that the court below was right in denying the motion, inasmuch as all the allegations of the complaint are appropriate to the statement of a cause of action in a suit of this character. (See Shippen v. Bowen, 122 U.S. 575.) In the case cited it is said to be now well settled, both in English and American jurisprudence, that either case or assumpsit will lie for a false warranty.
The application, so far as it sought a bill of particulars before issue, was also properly denied, the rights of the defendant being adequately protected by the leave which was granted in the order appealed from to renew this part of the motion after the joinder of issue.
The order should be affirmed.
WOODWARD, JENKS, RICH and MILLER, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.