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Law School Case Brief

Mauldin v. Sheffer - 113 Ga. App. 874, 150 S.E.2d 150 (1966)


A mere breach of a valid contract amounting to no more than a failure to perform in accordance with its terms does not constitute a tort or authorize the aggrieved party to elect whether he will proceed ex contractu or ex delicto. If there is no liability except that arising out of a breach of the express terms of the contract, the action must be in contract, and an action in tort cannot be maintained. Private duties may arise from statute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action.


Plaintiff architect entered into an oral contract with defendant engineer to provide consulting and engineering services for the architect's work and projects. The engineer provided the services and the architect paid the engineer. The engineer made numerous and repeated errors, and the architect lost business as result of the errors. On a second amended complaint, the architect filed a tort claim against the engineer, which stated a cause of action ex delicto for the engineer's failure to provide services under a contract between the parties. The engineer answered with a general demurrer, which the trial court overruled. The engineer appealed.


Did the breach of contract of engineer serve as a basis for an action in tort if the alleged conduct also breached a duty imposed by law?




On appeal, the court affirmed the judgment of the trial court. The court held that, to maintain a tort action, there had to be a breach of a duty imposed by law, and not merely a breach of contract. The court found that the architect could file a cause of action under either contract or tort law because a duty of the engineer to the architect existed under the contract and under the law. The court noted that the law imposed a duty on the engineer to exercise a reasonable degree of skill, care, and ability in performing his work, and the contract between the parties imposed that duty upon the engineer.

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