This being so, it is difficult to conceive how the question of the maintenance of the country's standard of value can in any way affect or control a matter which concerns the state alone. And, on the other hand, while the federal government has the righ: to make the standard of value and protect its money, it has no authority to say what one citizen of Indiana shall pay for services rendered by another citizen of the state. If the employee agrees to take goods or merchandise for a day's work, it is not apparent upon what grounds the federal government could interfere; and the right of the state to interfere in such cases is denied by the highest courts of several states. 14

A statute has been sustained in Maryland, which provided "that every corporation engaged in mining or manufacturing, operating a railroad in Alleghany County and employing ten hands or more, shall pay its employees the full amount of their wages in legal tender money of the United States; and that any contract by or on behalf of any such corporation for the payment of the whole or of any part of such wages in any other manner than herein provided," shall be illegal and void. 15 The grounds upon which this statute was upheld was the reserved power of the legislature to "amend or alter" the corporate charters of the corporations affected by the law. A decision resting upon such special reason is plainly not of much value as a contribution to the jurisprudence of this subject.

While

3. Truck Acts Unconstitutional. the constitutionality of legislative interference of the character under discussion has been asserted in the cases to which we have heretofore adverted, there is, on the other hand, a series of cases, possibly superior to the former class in weight and numbers, whose judicial judgments have been on the side of the incompetency of such legislation.16 Courts

Parker v. Davis, 12 Wall. 457; Legal Tender Cases, 110 U. S. 421.

14 See Johnson v. Mining Co., 59 Pac. Rep. 304. 15 Shaffer v. Mining Co., 55 Md. 74.

16 State v. Loomis, 115 Mo. 307; Frorrer v. People, 141 III. 171; State v. Haun, 61 Kan. 146; State v. Paint Rock Co., 92 Tenn. 81; Showalter v. Ehlan, 5 Pa. Sup. Ct. Rep. 242; Marsh v. Poston & Co., 85 Weekly Law B. 327, 54 Ohio St. 681; Sally v. Berwind, etc., Co., 5 Pa. Dist. Rep. 316; Hamilton v. Jutte & Co., 16 Pa. Co. Ct. Rep. 193; In re Scrip Bill, 23 Colo. 504; Row v. Haddock, 3 Kulp, 501. In Godcharles v. Wigeman, 113 Pa. St. 431, 437, speaking of sections 1, 2, 3, 4, 5, of

denying the constitutionality of these laws do so upon the ground that they are a species of sumptuary legislation, special and arbitrary in character, and deprive the citizen of the right to make and enforce ordinary contracts. Thus the Supreme Court of Kansas, when passing on a statute which made it unlawful for persons or corporation sell or give to any of their employees, in payment of wages, any scrip, token, check, draft or order, declared: "Laws which infringe upon the free exercise of the right of a working man to trade his labor for any commodity or species of property which he may see fit and which he may consider to be most advantageous, is an encroachment upon his constitutional rights and an obstruction to his pursuit of happiness. Such laws as we are considering classify him among the incompetents and degrade his calling. The proportion of lawful money in circulation is small compared with the value of other property of the United States. Accumulated wealth, much or little, is represented in a very small part by money. To say that

the Act of June 29, 1881, P. L. 147, section 3 of which provided that it shall not be lawful for any person, firm, company, corporation or association, etc., "to issue for payment of labor any order or other paper whatsoever, unless the same purports to be redeem. able for its face value in lawful money of the United States, etc.," the court said, the acts are "utterly unconstitutional and void, inasmuch as by them an attempt has been made by the legislature to do what, in this country, cannot be done; that is, prevent persons who are sui juris from making their own contracts. The act is an infringment alike of the right of the employer and the employee; more than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States. He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent hira from so doing is an infringment of his constitutional privileges, and consequently vicious and void." In State v. Goodwill, 33 W. Va. 179, 182, 183. Judge Snyder, pronouncing the decision of the court, said: "The rights of every individual must stand or fall by the same rule of law that governs every other member of the body politic under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens, and not of others, when there is no public necessity for such discrimination, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law, and the mass of the community, and those who make the law, by another; whereas, a like general law, affecting the whole community equally, could not have been enacted." See Luman v. Hitchins & Bros. Co., 90 Md. 14.

In another case denying the constitutionality of an act prohibiting persons or corporations engaged in mining and manufacturing from issuing for payment of labor any order or paper unless the same is redeemable, within a certain time, for its face value, in lawful money of the United States, the court said: It is a species of sumptuary legislation which has been universally condemned, as an attempt to degrade the intelligence, virtue, and manhood of the American laborer, and foist upon the people a paternal government of the most objectionable character, because it assumes that the employer is a knave, and the laborer an imbecile."18

"There can be no doubt," said Judge Black, in pronouncing the decision of the court in the case of State v. Loomis,1 19 but the leg

17 Per Judge Smith, 61 Kan. 146, 161, 162, 163, 47 L. R. A. 369. "Under the penal provisions of the statute in question," Judge Smith further said, "a laborer who works for a corporation or trust employing ten or more persons is deprived of his freedom of contract, in that he cannot bargain to receive anything in pay. ment for his labor but lawful money of the United States. While it might be desirable and profitable to the employee of such corporation to receive a horse, or a cow, or a house and lot in payment for his wages, yet the legislature prohibits payment in that way, and places the laborer under guardianship, classifying him in respect to freedom of contract with the idiot, the Junatic, or the felon in the penitentiary. It has been sought by some judges to justify legislation of this kind upon the theory that, in the exercise of police power, a limitation necessary for the protection of one class of persons against the persecution of another class may be placed upon freedom of contract. As between persons sui juris, what right has the legislature to assume that one class has the need of protection against another? In this country, the employee of today may be the employer next year, and laws treating employees as subject for such protective legislation belittle their intelligence and reflect upon their standing as free citizens."

18 Per Snyder, J., State v. Goodwill, 33 W. Va. 179. It was said in this case that it is not competent for the legislature, under the constitution, to single out owners and operators of mines and manufactures of every kind and provide that they shall bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making contracts which it is competent for other owners of property or employers of labor to make. Such legislation can not be sustained as an exercise of the police power. See State v. Coal, etc., Co., 33 W. Va. 188. 19 115 Mo. 307, 315.

islature may regulate the business of mining and manufacturing so as to secure the health and safety of the employees, but that is not the scope of the two sections of the statute now in question. They single out those persons who are engaged in carrying on the pursuits of mining and manufacturing, and say to such persons, you cannot contract for labor payable alone in goods, wares and merchandise. The farmer, the merchant, the builder and the numerous contractors employing thousands of men may make such contracts, but you cannot. They say to the mining and manufacturing employees, though of full age and competent to contract, still you shall not have the power to sell your labor for meat and clothing alone as others may." "It will not do," it was further said in this case, "to say these sections simply regulate payment of wages, for that is not their purpose. They undertake to deny to the persons engaged in the two designated pursuits the right to make and enforce the most ordinary every-day contracts a right accorded to all other persons. This denial of the right to contract is based upon a classification which is purely arbitrary, because the ground of the classification has no relation whatever to the natural capacity of persons to contract."

4. Truck or "Pluck-Me-Stores."-In a few of the states laws have been enacted prohibiting persons and corporations, engaged in the business of mining, manufacturing, or railroading, from keeping or being interested in what are commonly known as "Truck Stores" for the furnishing of supplies, clothing or groceries to their employees. These laws are generally regarded as unconstitutional and void by the courts, because of their special and arbitrary character, and their unjust interference with private contracts and business.20 A truck store, or scheme for furnishing supplies, clothing or provisions to employees, is not, it is held, in principle a different thing when kept or controlled by persons in the mining or manufacturing business,

20 Luman v. Hutchins Bros., 90 Md. 14; State v. Fire Creek Coal Co., 33 W. Va. 188, 10 S. E. Rep. 288, 6 L. R. A. 359; Frorrer v. People, 141 Ill. 171, 31 N. E. Rep. 395, 16 L. R. A. 492; affirmed, 142 Ill. 387; Sally V. Berwind, etc., Mining Co., 5 Pa. Dist. Rep. 316. See State v. Goodwill, 33 W. Va. 179, 10 S. E. Rep. 285; In re Scrip Bill, 23 Colo. 504; Evans v. Kingston Coal Co., 6 Kulp (Pa.), 351; McManan v. Hanover Coal Co., 6 Kulp (Pa.), 181.

from what it is when conducted by the employers of labor in other branches of indus try.21 Keeping stores and groceries, or supplies and tools, clothing and food, to sell to laborers in mines and manufactories, is entirely independent of the latter business, and has no tendency to affect their mechanical processes. And it is not competent, the courts hold, to forbid a man from keeping a truck store for sale of such articles merely because of his participating or being interested in a mining or manufacturing business. The operators of mines or manufactories cannot be made to bear burdens not imposed on other owners of property, nor forbidden to make contracts which other owners of property or employers of labor are allowed to make. 22

"The privilege or liberty," it was said in an Illinois case, "to engage in or control the business of keeping and selling clothing, provisions, groceries, tools, etc., to employees, is one of profit-of presumptive value; and thus, by the effect of these sections, what the employers in other industries may do for their pecuniary gain, with impunity, and have the law to protect and enforce, the miner and manufacturer, under precisely the same circumstances and conditions, are prohibted from doing for their pecuniary gain. The same act, in substance and in principle, if done by the one, is lawful; but if done by the other, is not only unlawful, but a misdemeanor, punishable by fine. If the general assembly may thus deprive some persons of substantial privileges allowed to other persons under precisely the same conditions, it is manifest that it may, upon like principle, deprive still other persons of other privileges in contracting, which, under precisely the same circumstances, are enjoyed by all but the prohibited class. "28

5. Discriminating Between Employers and Others. Statutes have been enacted providing that it shall be unlawful for persons or corporations, engaged in mining and manufacturing business, and who, at the same time,

21 Luman v. Hutchins Bros., 90 Md. 14; Frorrer v. People, 141 Ill. 171, 31 N. E. Rep. 395, 16 L. R. A. 492.

22 Frorrer v. People, 141 Ill. 171, 31 N. E. Rep. 395, 16 L. R. A. 492.

23 Per Scholfield, J., in Frorrer v. People, supra,

180.

are engaged, or interested in merchandising, to sell to their employees, goods, merchandise or supplies at a greater per cent profit than they sell to others not employed by them. These statutes have been held to invade the constitutional rights of the citizen.24 In the West Virginia case25 it was said: "The law is an infringement alike of the rights of the employer and employee. It excludes all freedom in trade and all considerations of mutual benefit and charity. If the employer sells goods to the family of some friend in indigent circumstances at less than cost, then, under this law, he must sell at the same price to all his employees."26 There may be many considerations for selling merchandise at a less per cent of profit to one customer than to another. The character and promptness of the customer; the risk of loss; the time of payment; the aggregate amount of purchases by the same person of different kinds of goods or supplies; all these may be proper considerations for not selling goods at the same price in all cases. It may be more profitable to sell a large bill of different kinds of goods to a large buyer than to sell one of the same kind of articles to one who buys nothing else. A law of this character, it is said, "consigns all sizes and conditions to the same measure of treatment, regardless of their differences."27

Los Angeles, Cal.

O. H. MYRICK.

24 State v. Fire Creek Co., 33 W. Va. 188, 10 S. E. Rep. 288, 6 L. R. A. 359; Godcharles v. Wigeman, 113 Pa. St. 431. In the latter case the act (sec. 4 of the Act of June 29, 1881, P. L. 147) was held "utterly unconstitutional and void."

25 State v. Fire Creek Co., supra.

26 It was further said in this case that such legislation not only interfered with private contracts and business, but was objectionable on the ground of being class legislation. "This is an attempt," said the court, "on the part of the legislature to do what in this country cannot be done; that is, prevent persons who are sui juris from making their own contracts. It is an attempt to do for private citizens what they can best do for themselves. It selects miners and manufacturers as a class, and denies to them privileges which are not only proper and legitimate in themselves, but also to some extent necessary and unavoidable in the conduct of business; privileges which concern private affairs solely, and which are enjoyed by all other classes of citizens."

27 State v. Fire Creek Co., supra.

DISTINCTION BETWEEN ALLEGATIONS SOUNDING IN TORT AND ON CONTRACT.

PENNSYLVANIA RAILROAD CO. v. SMITH.

Supreme Court of Appeals of Virginia, March 14, 1907. In an action against a carrier, a declaration averring an undertaking for the carriage of a shipment of scrap iron and steel, and that in consideration of the delivery of said iron and steel the defendants issued three separate bills of lading, and undertook to carry said property to said destination, and to require the surrender of said bills of lading properly indorsed before the delivery, yet said defendants delivered the iron and steel * without the surrender of said bills of lading properly indorsed, by reason of which disregard of their agreement the said plaintiff has been greatly damaged, etc., was not a sufficient statement of a consideration to support defendant's promise, and hence stated a cause of action for tort, and not in contract.

WHITTLE, J.: In addition to the common counts in assumpsit, the amended declaration in this case contains a special count, the material averments of which are as follows: That the defendants (who are the plaintiffs in error) were common carriers for hire and reward, and, as such, at their own risk and solicitation, received from the plaintiff three carloads of scrap iron and steel, which were consigned by the plaintiff at Richmond, Va., to his own order at Pittsburg, Pa., with direction to notify Kane- Maloney Iron & Steel Company, "and in consideration of the delivery to the said defendants of said iron and steel to be so carried, the said defendants issued three separate bills of lading * * and by said bills of lading, undertook, promised, and agreed to carry said property to said destination and to require the surrender of said bills of lading properly indorsed before the delivery of said property at destination. * Yet the said defendants, unmindful of their duty, promise and agreement * and disregarding the the iron and steel to the said Kane- Maloney Iron & Steel Company, or to some other person, without the surrender of said bills of lading properly indorsed; by reason of which disregard of their duty, promise and agreement, and such unwarranted delivery of said property, the said plaintiff has been greatly damaged," etc.

same, delivered

* *

* * *

* *

There was a demurrer to the amended declaration and each count thereof, which was overruled. Thereupon the trial proceeded and at the close of the evidence the defendants demurred to the evidence, which demurrer the court likewise overruled and rendered judgment against them for the damages conditionally assessed by the jury.

The recovery in the case (if there be a recovery) must be upon the special count, and our observations will therefore be addressed to its sufficiency. The ground of demurrer chiefly relied on is that while the special count purports to be in as

sumpsit it is in reality in tort, and consequently cannot be joined with counts in assumpsit. 4 Min. Inst. (3d Ed.), pt. 1, pp. 446, 447; 1 Bar. Law Pr. (2d Ed.), p. 304; Creel v. Brown, 1 Rob. 281; Hale v. Crow, 9 Grat. 263; Gary v. Abingdon Pub. Co., 94 Va. 775, 27 S. E. Rep. 595.

It is a principle of pleading that where a plaintiff is entitled to two modes of redress, and elects to waive the tort and sue in assumpsit, he must conform to the rules applicable to that form of action; and it is also an essential requirement in such case that, with the exception of actions founded upon bills of exchange, promissory notes and other legal liabilities which import a consideration, the declaration must allege both a promise and the consideration upon which it is based. Winston v. Francisco, 2 Wash. 187; Cooke v. Simms, 2 Call, 39; Sexton v. Holmes, 3 Munf. 566; Beverly v. Holmes, 4 Munf. 95; Moseley v. Jones, 5 Munf. 23; Wooddy v. Flournoy, 6 Munf. 506; Jackson v. Jackson, 10 Leigh, 448. See monographic note on "Assumpsit" to Kennaird v. Jones, 9 Grat. (Va. R. Ann.), bottom pages 98, 99; Southern Ry. Co. v. Wilcox, 98 Va. 222, 35 S. E. Rep. 355.

In the last named case it was held that "the want of statement of a consideration for a promise is a capital defect in the declaration, not to be supplied by intendment."

"A mere averment of a promise, or the use of the words 'undertook' or 'agreed,' does not constitute the declaration a declaration on contract. It is necessary to allege not only a promise or undertaking, but also a consideration therefor." 3 Ency. Pl. & Pr. 822, citing Smith v. Seward, 3 Pa. 342; Corbett v. Packington, 6 B. & C. 268 (13 E. C. L. 170).

In Smith v. Seward, supra, the court said: "The law on the subject has been put on satisfactory ground by making the presence of an averment, not of promise only, but of consideration also, the criterion; for it is impossible to conceive of a promise without a consideration any more than a consideration without a promise, as an available cause of action; and when a consideration is not laid, the word agreed or undertook, or even the more formal word promised, must be treated as no more than inducement to the duty imposed by the common law."

The similarity of the declarations in the two cases renders the foregoing observations the more pertinent. In the Pennsylvania case the declaration averred an "undertaking in consideration that the public should be conveyed by means of defendant's ferry, and for hire to receive and safely to convey, and that plaintiff learning said offer, did use the ferry and commit his horses to defendant, in consideration of an undertaking to convey, and that through the carelessness of defendant the horses were lost." This was held to be a declaration in tort.

So "a complaint, in an action against a common carrier, alleging in general terms a breach of contract to carry safely certain articles of

freight, but further alleging, particularly and specifically, that the defendant so negligently and carelessly conducted in regard to the same that they were greatly damaged, states a cause of action in tort. Bowers v. Richmond R. Co., 107 N. Car. 721, 12 S. E. Rep. 452." 3 Ency. Pl. & Pr. 822, note. See also Whittenton Mfg. Co. v. M. & O. R. R. Co. (C. C.), 21 Fed. Rep. 901; Angell on Carriers. § 439; Hutchinson on Carriers, §§ 744, 749.

"So, also, if the plaintiff declares on a promise in writing. not under seal, to do some other thing than pay money, unless in this case the consideration is stated, the declaration will be defective.” 1 Bar. L. Pr. (2d Ed.), p. 314; 4 Min. Inst. (3d Ed.), pt. 1, p. 697.

It is true that the special count in general terms designates the defendants as "common carriers for hire and reward," and avers that as such at their own risk and solicitation they "received" the junk in question "to be so carried;" but that was merely by way of recital, and does not constitute a sufficient statement of a consideration to support the defendants' promises. The averment must be direct and explicit, and not by way of inducement or preamble only. Davisson v. Ford, 23 W. Va. 617; Sexton v. Holmes, supra.

For these reasons we are of opinion that the circuit court erred in overruling the demurrer to the special count of the amended declaration.

The judgment on the demurrer to the evidence must therefore be set aside, and the judgment overruling the demurrer to the special count reversed. And it being apparent that it was intended that the special count should be a count in assumpsit, and not in tort, but that as a count in assumpsit it is amenable to the objections indicated in this opinion, the case, upon the authority of Creel v. Brown and Hale v. Crow, supra, must be remanded to the circuit court, with instructions to sustain the defendants' demurrer to the declaration. But if the plaintiff shall apply for leave to amend the same, under the circumstances of the case, the circuit court shall allow such amendment; and if the declaration be amended, such further proceedings shall be had as may be proper, on the present, and any other pleadings that may be offered by either party and admitted by the court. Otherwise, final judgment shall be rendered for the defendants on the demurrer.

NOTE.-Distinction Between an Allegation on Contract and in Tort.-Of course, it is not necessary to multiply citations to support the general statement of the law of pleading that a count in tort cannot be joined with a count on assumpsit, and that hence, as in the principal case, where a declaration containing counts on assumpsit is amended by adding a count in tort, it is demurrable. But the point of greater difficulty with practitioners is to know just how to determine whether a count as prepared sounds in tort or contract, for, as in the principal case, an allegation which in form has all the appearance of a count on a contract will, on close scrutiny, in a higher court, turn out to be in fact only a count in tort. It is evident, therefore, that it is often a serious problem to

determine whether an action is, in form, ex contractu or ex delicto. Perhaps the best criterion is this: If the cause of action, as stated in the declaration, arises from a breach of a promise, supported by a direct consideration, the action is ex contractu; but if from a breach of duty, growing out of the contract, even though stated in the form of a contract, it is, in form and in fact, an action ex delicto and case. See Wilkinson v. Moseley, 18 Ala. 288.

It might be well to cite a few pertinent examples showing the distinctions observed by higher courts in determining whether a count sounds in tort or contract. We will take up actions in contract first. Thus & complaint which alleges that plaintiff was injured by defendant's negligence, while in its employ; that, in settlement of his claim, defendant agreed to pay him $100.00, and to furnish him with permanent employment; that plaintiff, as a part consideration for such agreement, executed a written release, discharging defendant from all liability on account of such injury; and that, within three months after re-employing plaintiff, defendant discharged him, without cause or default on his part,-sets up a cause of action for breach of the contract pleaded, and not one of tort for the personal injuries sustained. Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. Rep. 802. So also it has been held that a count in a declaration by a minor seeking to recover money obtained of him need not allege that the property purchased was of less value than the price paid, or make other than the general allegation of damages, as the declaration is in contract and not in tort. Kellogg v. Kimball, 122 Mass. 163. So, also, it has been held that the allegation that plaintiff demanded of defendant the value before the latter's receipt or sale of the property, but defendant had unlawfully, without plaintiff's consent, converted to his own use the aforesaid value, and refused account therefor, though due demand had been made, the prayer for judgment being for $824 and interest, did not make the action one in to for conversion. Potter v. Van Norman, 73 Wis. 339, 41 N. W. Rep. 524. In the case of Mulvey v. Staab, 4 N. Mex. 50, 12 Pac. Rep. 699, the complainant alleged that defendants agreed with plaintiff that, if he would open a store in a certain place, they would supply him with goods to carry on the business; that in reliance thereon, plaintiff abandoned his other business, and leased a store in the place named, and made other preparations to go into the business proposed, but defendants refused to perform their part of the contract. The court held that this complaint sounded in contract, and that an action on the case would not iie.

to

The following cases were held to sound in tort. Thus it was held that a complaint which stated that defendant was employed to sell goods as agent for the plaintiff, on an agreement to account for the proceeds; that he had in his possession goods and money belong. ing to the plaintiff which he refused to account for, but had converted to his own use, must be construed as stating a cause of action arising upon tort, not one of contract. Ridder v. Whitlock, 12 How. Prac. (N. Y.) 208. The court in this case stated that this was so nothwithstanding that the contract of agency was set out in the complaint, averring that it must be regarded as set out by way of inducement which was not improper. In the case of City of Ft. Wayne v. Hamilton, 132 Ind. 487, 32 N. E. Rep. 324, the complaint in the action, which was to recover damages for the unlawful taking of private land by a city for a street, alleged that defendant unlawfully