#### S. J. SCHULHOFER v. THE RICHMOND & DANVILLE RAILROAD COMPANY.

Action in Tort or Ex Gontraotu — Jurisdiction of Justice of the Peace — Election of Palintiff — Practice.

When an action, brought before a justice of the peace, can be-maintained either for breach of a contract or in tort for negligence, and the complaint can be fairly construed as based on '.either form, the courts, in favor of jurisdiction, will regard the cause of action to be ex oontraeiu.

This was an ACTION, begun before a justice of the peace,, and carried by appeal to the Superior Court, and heard before Robinson, J., at Fall Term, 1895, of Haywood Superior Court, upon the complaint and demurrer as follows:

Plaintiff complains that lie had shipped to him from Savannah, Ga., on December 3, 1891, three horses from Younglove & Goodman, on the defendant’s line of railroad. That the defendants, the Richmond & Danville Railroad Go., carelessly and wilfully permitted the said stock to remain in an open stock car exposed to the rain and wind and cold from Sunday evening till late in the morning of Monday, without notice to the plaintiff or his agent, and that by reason of such exposure and neglect one of the plaintiff’s horses took sick and died, and thatthe plaintiff and consignor paid the freight on said stock, amount $34.25, to defendant’s agent at "Waynesville, also the feed of the stock while in transit. It was defendant’s contract to deliver said stock in good condition, and by reason of defendant failing to comply with the contract and, on account of the neglect, and by failing to properly care for and shelter said stock, the plaintiff has been greatly damaged, to-wit: $190.

*1097The defendant demurred to the jurisdiction of this court, and said that, if the stock described in this action were damaged, which defendant denied, it is in the nature of a tort and did not arise under contract. His Honor being of opinion with the defendants, sustained the demurrer, and .gave judgment dismissing plaintiff’s action, to which judgment plaintiff excepted and appealed.

Messrs. Ferguson db Ferguson, for plaintiff (appellant.)

Messrs. G. F. Bason and J. M. Moody, for defendant.

ClarK, J.:

The cause of action could be sustained either for damages for breach of the contract of safe delivery, or in tort for negligence. The plaintiff having brought the action before a justice of the peace “ for $190, due by contract,” evidently elected to sue ex contractu. "When the action can be fairly treated as based either on contract or in tort, the courts, in favor of jurisdiction, will sustain the ■election made by the plaintiff. Brittain v. Payne, at this Term; Bowers v. Railroad, 107 N. C., 721; Stokes v. Taylor, 104 N. C., 394.

The judgment dismissing the action is

Reversed.