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Law School Case Brief

McQuaid v. Michou - 85 N.H. 299, 157 A. 881 (1932)


If the negligence is regarded as a breach of the contract, it is a distinct item of breach. While the outcome of the suit barred a later action for that breach, it did not bar one for failure of other terms of the contract. The election to sue in tort instead of on the contract is effective to bar later action on the contract for its breach in committing the tort, but not to bar action for other breaches. Different liabilities under a contract or as its outgrowth may give rights to separate actions when the liabilities are not alternative.


A woman charged a man with negligence in his performance of the contract to effect a cure. The court ruled in favor of the man because the action was barred by a prior malpractice action that the woman had brought against the man. The trial court denied the woman's motion for directed verdict, and the woman appealed, contending that her prior action against defendant man did not bar her second action against the same man.


Was the woman barred from filing suit for performance of contract?




The court reversed the judgment of the trial court, which denied the woman's motion for a directed verdict. The court held that the action was for failure of a promised result of treatment, and the woman's failure to prove liability for malpractice in the prior suit did not perforce disprove the promise to cure. The court concluded that duplication of the evidence did not make them the same, or show that they were not separable and based on distinct grounds of liability, and how the man acted was now only of collateral bearing, while in the prior suit it was only of collateral bearing what he agreed to do, thus, the verdict in the prior suit showed either that the man's treatment of the woman was proper and skillful, or that she and the man were in fault, but it did not show what his undertaking was as to the outcome of the treatment, therefore, the denial of the woman's directed verdict was reversed.

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