(dissenting) — I dissent. The majority opinion, in my judgment, deprives the respondent of a right which the law gives him. There is no insufficiency of facts pleaded. The machine was worthless to respondent; hence he ought to have his purchase money back. By reason of relying on the representations made when he bought the machine, he is damaged; hence he ought to recover his damages. Must he be driven to the expense and delay of two actions, in face of the universal sentiment and judgment of courts that a multiplicity of suits should be avoided? Such- a practice would not be tolerated by this court for one moment. Then, if he is not allowed to join his causes of action, as is decided in this case, he must of necessity lose one of his causes of action and be deprived of a legal right. To illustrate: If A purchases a horse of B for $300, under a warranty that the horse is a safe driving horse, and instead he proves to be vicious and wild and, when he is hitched up, runs away, demolishing A’s carriage, which is worth $300, it is evident that A is injured in the whole transaction $600, $300 for the purchase price of the horse, which is useless to him, and $300 for the loss of the carriage. And yet this court, in effect decides that he must keep the horse, which he cannot use and which is a source of constant expense to him, in order to recover for damages to his carriage; or, if he desire to recover the *344purchase price of the horse, he must lose his claim for damages to his carriage. This is a simple but true and practical illustration of the effect of the rule adopted by the majority.
Many cases are cited to sustain the doctrine announced in the majority opinion, and I am free to confess that the weight of authority sustains the opinion. But such authorities do not reflect the spirit of our code. It is said in one of the cases cited:
“The buyer may not pursue two inconsistent remedies. If he chooses to exercise the special remedy by returning the article to the seller he is then confined to a recovery of the purchase money paid and cannot maintain an action to recover damages for a breach of the warranty.”
Of course, he should not pursue two inconsistent remedies. But, under the provisions of the code, he is not pursuing two inconsistent remedies. These cases assume the very question in controversy, viz., whether the remedies are inconsistent, and so assuming instead of determining, such decisions, numerous as they may be, should have no weight whatever. Our code has done away with many of the technicalities and all of the fictions which were tolerated by the common law in pleadings, and it has substituted a plain statement of the facts constituting a cause of action. The essential idea of the code is simplicity. It provides in the first place, that all forms of actions heretofore existing shall be abolished; that there shall be but one form of action; that every action shall be prosecuted in the name of the real party in interest; a simple summons is provided for, and then comes the crowning provision that the complaint shall contain a plain and concise statement of the facts constituting the cause of action. This complaint is met by an answer which denies or admits the allegations of the complaint, or makes a simple statement of any new matter constituting a defense. There the litigants are before the court in a simple and effective way to try out the controversy made by the pleadings. The statute *345also specially provides that the plaintiff may unite several ■causes of action in the same complaint when they all arise out ¿f a contract express or implied.
The controversy in this case is a controversy which is commensurate with the whole transaction, and certainly arose •out of a contract. The contract expressed was to furnish a machine which would do the work it was represented to do; the implied contract was responsibility for all damages arising from its breach as naturally and proximately resulting from the breach of the warranty. And when it is admitted ■and proved that there was a violation of the contract, and that by reason of such violation the character of damages which we have mentioned accrued, there seems to me to be no reason in the world for compelling the defendant to lop off and lose a portion of his loss which arose from a violation of the contract. Again, the statute permits, and this court has •decided in Barbo v. Nix, 15 Wash. 563, 46 Pac. 1033, that even where a complaint sets forth facts tending to show liability both in tort and on contract, such recital is not open to objection on the ground of stating more than one cause •of action, when such facts all relate to a single transaction ■and are relied upon as the basis of a single cause of action, the court in that case saying:
“This complaint simply set out in an orderly manner a statement of the facts relating to the transaction which was relied upon to show that the plaintiff was entitled to recover ■a judgment against the defendants; and while some of the facts so alleged may have tended to show that a contract was •entered into between the bank and the defendants, and others to show wrongful action on the part of the defendants and the bank, they all related to a single transaction and were properly included in a single count. Whether a claim of relief is rightfully founded upon a contract relation entered into, or wrongful acts done, where but á single transaction is relied upon, the recital of the facts relating to such single -transaction is not open to objection, for the reason that such recital may tend to show a liability upon contract and also in tort.”
*346Here it cannot be gainsaid that the causes of action which are alleged all arose out of the same transaction, viz., the contract to furnish a machine which would do good work, and the damages flowing from the violation of the contract. The trouble arises from an attempt on the part of the court to classify, when the law especially repudiates classification, and demands of the plaintiff a statement of the facts which constitute all of his cause of action. Under the law the court is authorized to try the case as made by the pleadings and grant any relief embraced in the issues, and it cannot be said that the relief demanded is not embraced in the issues.
But, even under all the technical rules and fictions of the common law, this action would be sustained and defendant would be allowed to recover the damages proven in the case. On the other questions discussed I express no opinion.
Chadwick, J., concurs with Dunbar, J.