This was an action brought before a justice of the peace, and no written pleadings were filed. The summons notifies the defendant to appear at the time and place named "to answer the complaint of plaintiffs for nonpayment of the sum of $175, with interest thereon from 17 August, 1901, until paid, for breach of contract." On appeal to the Superior Court, the following issues were submitted: "1. Were the plaintiffs damaged by reason of the negligence of the defendant in the failure to deliver the express package in question? 2. What damages have the plaintiffs sustained?"
The jury responded "Yes" to the first issue and to the second issue "$70," whereupon the defendant excepted to the jurisdiction of the court and moved for judgment of nonsuit against the plaintiffs, which motion was overruled, judgment entered for the plaintiffs upon the findings of the jury, and the defendant excepted and appealed.
There being no exception to the evidence or the charge of the court, very properly no part of them is sent up. Durham v. R. R., 108 N.C. at p. 404; Mining Co. v. Smelting Co., 119 N.C. at p. 416. The only exception is for the refusal to nonsuit after verdict. Taking this to be *Page 95 a motion to dismiss for want of jurisdiction, it might be made at any time, even in this Court for the first time. Rule 27 and cases cited in Clark's Code (3 Ed.), p. 923. But no such defect appears on the face of the record. In the summons before the justice of the peace the plaintiffs state their cause of action to be for "breach of contract," and the issue finding that there was a "negligent failure to deliver an express package" is on its face a breach of contract to deliver the same. Froelichv. Express Co., 67 N.C. 1. It is true, the word "negligent" was surplusage, for the failure to deliver the package is a breach of the contract of carriage equally whether such failure is wilful or negligent. The only defense for failure to deliver would be "the act of God or the public enemy." If there was negligent failure, (130) it would be like the breach of any other contract in which the contractor negligently failed to keep and execute its terms. There was no exception to the issue, and if there had been, the negligence was simply the manner of breaking the contract, and at the utmost it was a tort arising on contract.
"The justice's summons is a substitute for the complaint when no other complaint is filed." Cromer v. Marsha, 122 N.C. 564; Allen v. Jackson,86 N.C. 321; Williams v. Beasley, 35 N.C. 112; Emmit v. McMillan, ibid., 7; Duffey v. Averitt, 27 N.C. 458. Here the declaration is explicit in the summons "for breach of contract." If there had been a tort, the plaintiffs had the right to waive it and sue in contract, but in Froelichv. Express Co., supra, Pearson, C. J., says the failure of a contract of a carrier to deliver is a breach of contract, and adds (on p. 4): "As the distinction between declaring in tort or in contract is a refinement abolished by the Constitution, taking it in any point of view, this is a civil action founded on contract." See citations approving that case in the Annotated edition of 67 N.C.
In Bowers v. R. R., 107 N.C. 721, the Court modified that decision by holding that in such case the plaintiff may waive the contract, if he so elect, and sue in tort, if he set out his intention "in terms that clearly show his purpose" to do so. The same purpose to uphold whatever jurisdiction the plaintiff shall elect is clearly shown in all our decisions. In the late case of Sams v. Price, 119 N.C. 572, the Court says: "If the complaint is so worded that under the liberal procedure of The Code it could have been construed to be either an action on an express or an implied contract (Stokes v. Taylor, 104 N.C. 394; Fulps v. Mock,108 N.C. 601; Holden v. Warren, 118 N.C. 326), or either in tort orcontract (Britton v. Payne, 118 N.C. 989; Schulhofer v. R. R., ibid., 1096; Timber Co. v. Brooks, 109 N.C. 698; Bowers v. R. R.,107 N.C. 721), or as a common-law action or one under the statute (131) (Roberson v. Morgan, 118 N.C. 991), the Court will *Page 96 sustain the jurisdiction." It would be passing strange if since the Constitution, Art. IV, sec. 1, the courts could turn a party out of court and require him to come back again by another door to litigate exactly the same sum, upon the same facts, when he has stated his cause of action in a manner which entitles him to have a decision in the forum which he has chosen.
No error.
Cited: White v. Eley, 145 N.C. 36; Stroud v. Ins. Co., 148 N.C. 56;Riley v. Stone, 169 N.C. 424; Newell v. Barley, 180 N.C. 432.