The real question raised upon this report is of a much more restricted character than might be supposed from the points suggested and discussed in the argument for the plaintiff. The simple question presented on the trial was, whether the allegations in the declaration, of the intent and confederacy of the defendant, were mere surplusage and needed not to be proved. The court ruled that they were material allegations, and that the mere breach of the covenant set out in the declaration was not sufficient to entitle the plaintiff to maintain the present action. No distinction was then taken by the counsel for the plaintiff, between the matter of the intent and of the confederacy, nor any suggestion made that they were to be treated as separate subjects. But the counsel now insists, that if there was an unlawful *524confederacy . the action may be maintained without reference to the alleged intent and object of such confederacy.

The first answer to this position is, that no such instruction to the jury, nor ruling by the court, was asked or refused, during the course of the trial. In looking at the facts, as set forth in the report of the case, we do not perceive that any such distinction could have been usefully urged; inasmuch as the confederacy itself, and the intent and object of the confederacy, seem to be inseparably blended.

In an action upon the case for a tort, it is undoubtedly true, that if the substantial cause of action is shown by the evidence, although all that is charged in the declaration be not shown, yet the plaintiff will be entitled to a verdict. But that falls far short of establishing the position that the mere breach of a contract between A. & B. of the one part, and C. of the other part, will entitle A. to maintain an action upon the case in tort, in his own name alone. That something beyond this is necessary seems now to be conceded by the counsel for the plaintiff; and hence it is contended, that if the confederacy be shown, although unaccompanied by the intent charged, it would be sufficient to maintain this action.

Some authorities were cited, to show that an action upon the vase will lie, in some instances, to recover damages where the substantial cause of action rests on contract : As an action upon the case on a warranty of goods sold : So for the disturbance of an easement, though acquired under a contract, and held under covenants for quiet enjoyment; in case the grantee is disturbed by the grantor. Mast v. Goodson, 3 Wils. 348. If the cause of action really arises upon contract, then, I apprehend, the suit must be between the contracting parties ; as much so, when brought in case, as when brought in assumpsit. If it arises from a tort, which would subject the party to an action, independently of any privity of contract, then the fact, that the injured party has a cumulative remedy, by force of a contract, will not divest him of his right to an action upon the case.

It was also urged, that the allegation in the declaration, that Riley, one of the covenantees in the instrument executed by the *525defendant, had, in pursuance of the confederacy, refused to join in a suit against the defendant for breach of the covenant, would, if proved, authorize a verdict for the plaintiff. To sustain this position, the case of Wilson v. Mower, 5 Mass. 411, was cited ; but, as it seems to us, it does not furnish the authority supposed. See Eastman v. Wright, 6 Pick. 323. But whether such action would lie, upon proof of a confederacy between the defendant and one of the covenantees to defeat an action on the covenant, it is unnecessary to decide ; for the reasons already stated.

Judgment on the verdict.