When there is a contract in play, often times there is confusion when a plaintiff is making a claim whether the claim is for breach of contract or for tort liability. Sometimes a plaintiff will assert both contract liability and tort liability (e.g., fraud, negligence) for failure to perform contract provisions. This is usually impermissible.
The failure to perform a contract cannot serve as the basis for for tort liability. State ex rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo. 1987). The breach of a promise or failure to perform does not constitute a misrepresentation of fact or create a claim for fraud or intentional misrepresentation. Titan Constr. Co. v. Mark Twain Kansas City Bank, 887 S.W.2d 454, 459 (Mo. Ct. App. 1994). A plaintiff, therefore, cannot re-characterize a claim which is actually for breach of contract into a tort claim.
To determine whether an action is grounded in contractual or tort liability, the Court determines the source of the duty claimed (e.g., contract duty or tort duty).