(dissenting).
I am unable to concur in the decision in this case and therefore respectfully dissent. The sole question presented, stated in a word, is whether the next of kin of a deceased person may maintain an action in tort under the death-by-wrongful-act statute for an act, alleged to have caused his death, which as to decedent amounted to nothing-more than a breach of contract. In my opinion the question should be answered in the negative.
It seems well settled by the authorities that where the act constituting a breach of contract is one of misfeasance because prohibited by statute, or because a violation of some duty or obligation imposed by law as incident to particular contract relations and in addition to those expressly stipulated by the parties, the injured party has the election to sue in tort or for a breach of the contract as he deems best suited to appropriate and adequate relief. But where the act is one of nonfeasance, mere negligence unaccompanied by affirmative unlawful acts, the exclusive remedy *402is for a breach of the contract. Tuttle v. George H. Gilbert Mnfg. Co. 145 Mass. 169, 13 N. E. 465; Lane v. Raynes, 223 Mass. 514, 112 N. E. 152; Flint & Walling Mnfg. Co. v. Beckett, 167 Ind. 491, 79 N E. 503, 12 L. R. A. (N.S.) 924; Dustin v. Curtis, 74 N. H. 266; 67 Atl. 220, 11 L.R.A. (N.S.) 504, 13 Ann. Cas. 169; Mulvey v. Staab & Co. 4 N. M. 172, 12 Pac. 699; Samuel v. Novak, 99 Md. 558, 58 Atl. 19; Nevin v. Pullman P. C. Co. 106 Ill. 222, 46 Am. Rep. 688. The doctrine is stated with citation of authorities in the note to Flint & Walling Mnfg. Co. v. Beckett, 12 L.R.A. (N.S.) 924. Bishop, Non-Contract Law, § 76. It was applied by this court in Sargent v. Mason, 101 Minn. 319, 112 N. W. 255, an action like that at bar for the failure of the landlord to heat the rented premises.
In this case the complaint brings the action within the nonfeasance rule, there being no allegation therein showing anything more than a negligent failure to perform the contract. The obligation violated was imposed by express contract stipulation, not by the law, and decedent, had he survived, could have recovered only for the breach of the contract. And in this respect it is unimportant in what language the breach of the contract is charged, since the complaint as a whole discloses simply a failure to perform and nothing more. And since the sole remedy of decedent would have been for a breach' of the contract, his personal representatives or next of kin have no greater right under the wrongful death statute, for the intent of that law was to extend to them the same right that was vested in decedent at his death. McLean v. Burbank, 12 Minn. 438 (530), wherein Mr. Justice Berry said in the course of the opinion therein: The natural construction of this language would appear to be that the representatives may maintain their action for the same kind of act of omission, causing death, for which the intestate might have maintained an action had the resulting injury fallen short of death.” While a new action is given by the statute, one that did not exist prior to its enactment, it is founded wholly upon a right possessed by decedent, namely, a right of action in tort, and not in contract. That right and only that right passes by the statute to th'e next of kin. An attempt to proceed under the wrongful death statute for the failure of the landlord to perform the conditions of the lease was unsuccessful in Davis v. *403Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478, 106 Am. St. 691, 3 Ann. Cas. 832.
The demurrer to the complaint should be sustained.