Field, C. J. concurring.
This is an action brought under the provisions of the three hundred and seventeenth section of the Practice Act, to recover damages for the malperformance of a contract made with the Accessory Transit Company of Nicaragua, to convey Catherine Sheldon, wife of James Sheldon, from San Francisco to New York, by what was known as the Nicaragua route. This company were the owners of a number of steamships engaged as common carriers in the transportation of persons and property, for hire, between those points, and the contract provided for the conveyance of Mrs. Sheldon from San Francisco to San Juan del Sur, in Nicaragua, and thence by the usual route to her destination at New York. The defendant was one of the steamships belonging to and employed for these purposes by the company, and. was- designated in the contract as -the vessel to be used in the voyage from San Francisco to San Juan del Sur. The contract was made in April, 1856, and a short time previous thereto the company were in possession, and had the exclusive control, under a charter from the Government of Nicaragua, of the transit across the Isthmus upon that route. When the contract was entered into, however, this charter had been annulled, and the company and their agents were fully advised of that fact, and knew that the contract could not be carried out. With this knowledge in their possession, they had published in the newspapers a notice upon the subject, the object and effect of which were to mislead the public; and it is averred, and the jury expressly find, that the plaintiffs were deceived thereby into making the contract. The facts were not communicated until after the departure of the defendant from San Francisco, and the company were so situated that the passengers were compelled to submit to the imposition which had been practiced upon them. It was then announced that the defendant, instead of stopping at San Juan del Sur, would proceed to Panama, in New Granada, and the passengers were assured that upon crossing the Isthmus to Aspinwall, they would be taken on board by a steamer and carried without delay to New York. When these assurances were given, no means of transportation beyond *533Aspinwall had been provided, and in giving them the company must have been actuated by a deliberate purpose of deception. The complaint charges, and the jury find, that Mrs. Sheldon was taken to Panama without her consent, or that of her husband; that she was compelled to disembark in an open boat during a severe rain, and was transported to Aspinwall by railroad in a coal car; that she was detained at Aspinwall seventeen days, during which period she was abandoned by the company, and left without protection or assistance; that the food and accommodations at Aspinwall were bad, and the climate unhealthy; that the acts complained of were committed in a spirit of recklessness, and from wanton and malicious motives.
The facts were found specially; but the jury, under the direction of the Court, rendered a general verdict for the defendant. In support of this verdict two grounds are relied on: first, that the plaintiffs count upon the contract, and cannot therefore recover in a joint action; and second, that the defendant is not liable under the statute.
We agree that the plaintiffs cannot recover jointly in an action ex contractu for a breach of the contract; but this does not appear to us to be a sufficient answer to a recovery in the present case." Ho demurrer having been interposed, the question is whether upon the facts stated the plaintiffs are entitled to any relief; for if they are, the action to that extent is well brought, and such relief cannot be denied upon the ground that the same facts are sufficient to support an action in which one of the plaintiffs only can recover. It is well settled that for an injury done to the person of a married woman she must join in the action; and it is immaterial that the injury is charged to have been committed in violation of a contract. If the act producing the injury be in itself tortious, it may" be so treated for all remedial purposes; and it would be absurd to hold that because the wrong done amounts to the breach of a contract, it is therefore purged of its tortious character. “A promise and a tort,” says Hilliard, “ may be coincident, giving to the party injured by the breach of the promise a remedy as for a simple wrong, without reference to the accompanying contract as such. In other words, the breach of a contract may be a wrong, in respect of which the *534party injured may sue in tort, instead of suing upon the contract.” (1 Hilliard on Torts, 3.) The cases in which this principle has been applied are very numerous, and the subject is so familiar to the profession that we do not propose to extend our examination of it beyond a reference to a few of these cases. In Ives v. Carter (24 Conn. 392) the plaintiff had been induced by fraudulent representations to enter into a contract, which was subsequently broken. The question was, whether the plaintiff could sue in tort for the fraud, or was compelled to seek relief by an action upon the contract. The Court said: “ In a case thus situated, it appears to us that the party may have his election to sue either upon the contract, or for the fraud; and in either case, so long as it appears that the party is entitled to the remedy he has selected, it can be no objection that he was also entitled to another remedy.” In Cary v. Hotaling (1 Hill, 311) it was held that a fraudulent vendee of goods might be charged in assumpsit for the price, or in trespass, at the pleasure of the vendor. In Donnell v. Jones (13 Ala. 490) an action in tort was maintained for the wrongful and malicious suing out of an attachment, although the plaintiff might have proceeded upon the attachment bond.
There is no doubt that the' injuries inflicted upon Mrs. Sheldon are the proper subjects of an action. The treatment to which she was subjected upon her arrival at Panama, and the fraud and imposition which had been practised upon her, make out a gross and palpable wrong. For this wrong the law entitles her to compensation in damages, and these damages can only be recovered in an action to which she is a party. The case in this respect must be determined by the rules of the common law, and if she were not a party we should be compelled to hold that damages of this nature could not be recovered. We have but one form of action, and but one set of rules to govern us in determining by and against whom the action is to be prosecuted; and in all cases where the statute is silent the common law furnishes the rule of decision. “ The husband and wife,” says Chitty, “ must join if the action be brought for the personal suffering of or injury to the wife; ” and this is the settled rule of the common law upon that subject. The right of recovery does not extend, however, to any matter for which the *535husband should sue alone ; and in the present case the plaintiffs are not entitled to damages on account of disbursements or expenditures by the husband. The idea that the practice in this class of cases is to be assimilated to that prevailing in Courts of Admiralty, has no foundation in the statute.
There is nothing in the point relating to the liability of the defendant. She was the efficient instrument in the violation of the contract, and it is impossible to measure her liability otherwise than by that of the company. She is undoubtedly liable to some extent, and any effort to limit that liability to anything short of the entire injury sustained will be found to be impracticable.
Judgment reversed, and cause remanded for a new trial.