#### Wood vs. The Milwaukee & St. Paul Railway Company.

Railboads. *Liability of company as common carrier.*

Actions — Costs. *Action on contract or in tort? Attorney’s fees.*

1. The decision in *donkey v. M. & 8t. P. Railway Oo.*(31 Wis., 619), followed, in reference to the liability of a railroad company as carrier, for goods transported by it, destroyed or injured while held in its warehouse for transfer to the next carrier.

2. The present action was founded on the alleged *custom*of the defendant ' company in regard to transferring to the next carrier goods carried by defendant, consigned to a point beyond the terminus of its road; and plaintiff sought to recover for goods destroyed in defendant’s warehouse, on the ground of a failure to comply with such custom. *Meld, that*the action was in the nature of one for tort, and not one “upon contract” within the meaning of Tay. Stats., ch. 133, § 69; and that the amount of attorney’s fees recoverable as costs therein was not limited to $25.

*399APPEAL from tie Circuit Court for *Dane*County.

The decision of this court upon a former appeal in this action will be found reported in 27 Wis., 541-555. The opinion of Mr. Justice Lyon as there printed, on pp. 546-548, contains a statement of the facts as they then appeared from the record. Substantially the same facts were shown upon a second trial; the plaintiff again had a verdict and judgment; and the defendant again appealed. One of the defendant’s exceptions was to the decision of the circuit court allowing a greater sum than $25 for attorney’s fees in the taxation of plaintiff’s costs.

*•Jno. W.*Cary, for appellant.

[No brief on file.]

*Gregory &*Pinney, for respondent,

argued, 1. That the plain object and meaning of ch. 402, Laws of 1864 (Tay. Stats., ch. 133, § 59), was to give parties or their attorneys additional compensation for the additional labor in applying to the court to enter judgment, over the ordinary services in entering judgment on contracts, which requires no application to the court. 2. That the complaint in this action is not on contract in any sense; that the plaintiff had his election to bring his action on contract or in case (which is in tort), and he chose to bi’ing it in case (Ang. on Carriers, §§ 420, 422-427, 429; 4 How., Ú. S., 155 ; *Merritt v. Parle,*31 Barb., 38; *S. C.,*29 N. Y., 115 ; 2 Wend., 339 ; 3 id., 158 ; 6 How. Pr. R., 309; 8 id., 346; *Zell v. Arnold,*2 Penn., 292; 11 Pa. St., 141.

Cole, J.

After the decision of this court in the case of Conkey against this defendant, nothing further need be said upon the question of the liability of the defendant for the property lost or destroyed. The only remaining question is that which relates to the question of costs. The defendant objects that no more than twenty-five dollars attorney’s fees can be taxed on the action. And this calls for a construction of a clause of section 59, ch. 133, p. 1533, Tay. Stats., which limits the amount of attorney’s fees *“in actions at law on*contract” to *400twenty-five dollars. And tbe question is, Can this be said to be an action at law on contract, witbin tbe meaning of tbis provision of tbe statute? We tbink not. Tbe gravamen of tbe complaint is solely for a breach of duty, and is founded upon tbe custom. It is wbat would have been denominated under tbe old system an action on the case for a tort or misfeasance. Tbe plaintiff doubtless bad bis election to bring bis action on contract or for a breach of duty. He chose the latter form of action, and framed tbe complaint accordingly. And that tbe complaint states an action in tort, or for a misfeasance, is a point fully established by tbe authorities to which we are referred in tbe brief of tbe counsel for tbe plaintiff. Indeed, all discussion of tbe question would seem to be quite unnecessary after tbe very clear and satisfactory opinion of Savage, C. J., in the case of *Orange Bank v.*Brown, 3 Wend., 158. He shows most conclusively that an action against a common carrier founded solely upon tbe custom is an action in tort, and not upon contract.

*By the*Court.— Tbe judgment of the circuit court is affirmed.