The Online Library of Liberty

A project of Liberty Fund, Inc.

• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER XIII.

SPECIAL RELATIONS OF CONTRACT AND TORT.

Original theory of forms of action.The original theory of the common law seems to have been that there were a certain number of definite and mutually exclusive causes of action, expressed in appropriate forms. The test for ascertaining the existence or non-existence of a legal remedy in a given case was to see whether the facts could be brought under one of these forms. Not only this, but the party seeking legal redress had to discover and use the right form at his peril. So had the defendant if he relied on any special ground of defence as opposed to the general issue. If this theory had been strictly carried out, confusion between forms or causes of action would not have been possible. But strict adherence to the requirements of such a theory could be kept up only at the price of intolerable inconvenience. Hence not only new remedies were introduced, but relaxations of the older definitions were allowed. The number of cases in which there was a substantial grievance without remedy was greatly diminished, but the old sharply drawn lines of definition were overstepped at various points, and became obscured. Thus different forms and causes of action overlapped. In many cases the new form, having been introduced for greater practical convenience, simply took the place of the older, as an alternative which in practice was always or almost always preferred: but in other cases one or another remedy might be better according to the circumstances. Hence different remedies for similar or identical causes of action remained in use after the freedom of choice had been established with more or less difficulty.

On the debateable ground thus created between those states of fact which clearly give rise to only one kind of action and those which clearly offered an alternative, there arose a new kind of question, more refined and indeterminate than those of the earlier system, because less reducible to the test of fixed forms.

Actions on the case. The great instrument of transformation was the introduction of actions on the case by the Statute of Westminster(a) . Certain types of action on the case became in effect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably rather the timidity of pleaders than the unwillingness of the judges that prevented the development from being even greater than it was. It may be asked in this connexion why some form of action on the case was not devised to compete with the jurisdiction of the Court of Chancery in enforcing trusts. An action on the case analogous to the action of account, if not the action of account itself, might well have been held to lie against a feoffee to uses at the suit of cestui que use. Probably the reason is to be sought in the inadequacy of the common law remedies, which no expansion of pleading could have got over. The theory of a system of equitable rights wholly outside the common law and its process, and inhabiting a region of mysteries unlawful for a common lawyer to meddle with, was not the cause but the consequence of the Court of Chancery’s final triumph.

The history of the Roman legis actiones may in a general way be compared with that of common law pleading in its earlier stages; and it may be found that the praetorian actions have not less in common with our actions on the case than with the remedies peculiar to courts of equity, which our text-writers have habitually likened to them.

Causes of action: modern classification of them as founded on contract or tort. Forms of action are now abolished in England. But the forms of action were only the marks and appointed trappings of causes of action; and to maintain an action there must still be some cause of action known to the law. Where there is an apparent alternative, we are no longer bound to choose at our peril, and at the very outset, on which ground we will proceed, but we must have at least one definite ground. The question, therefore, whether any cause of action is raised by given facts is as important as ever it was. The question whether there be more than one is not as a rule material in questions between the same parties. But it may be (and has been) material under exceptional conditions: and where the suggested distinct causes of action affect different parties it may still be of capital importance.

In modern English practice, personal(b) causes of action cognizable by the superior courts of common law (and now by the High Court in the jurisdiction derived from them) have been regarded as arising either out of contract or out of wrongs independent of contract. This division was no doubt convenient for the working lawyer’s ordinary uses, and it received the high sanction of the framers of the Common Law Procedure Act, besides other statutes dealing with procedure. But it does not rest on any historical authority, nor can it be successfully defended as a scientific dichotomy. In fact the historical causes above mentioned have led to intersection of the two regions, with considerable perplexity for the consequence.

We have causes of action nominally in contract which are not founded on the breach of any agreement, and we have torts which are not in any natural sense independent of contract.

This border-land between the law of tort and the law of contract will be the subject of examination in this chapter.

Classes of questions arising. The questions to be dealt with may be distributed under the following heads:—

• 1. Alternative forms of remedy on the same cause of action.
• 2. Concurrent or alternative causes of action.
• 3. Causes of action in tort dependent on a contract not between the same parties.
• 4. Measure of damages and other incidents of the remedy.

I.—

Alternative Forms of Remedy on the same Cause of Action.

One cause of action and alternative remedies. It may be hard to decide whether particular cases fall under this head or under the second, that is, whether there is one cause of action which the pleader has or had the choice of describing in two ways, or two distinct causes of action which may possibly confer rights on and against different parties. In fact the most difficult questions we shall meet with are of this kind.

The common law doctrine of misfeasance. Misfeasance in doing an act in itself not unlawful is ground for an action on the case(c) . It is immaterial that the act was not one which the defendant was bound to do at all(d) . If a man will set about actions attended with risk to others, the law casts on him the duty of care and competence. It is equally immaterial that the defendant may have bound himself to do the act, or to do it competently. The undertaking, if undertaking there was in that sense, is but the occasion and inducement of the wrong. From this root we have, as a direct growth, the whole modern doctrine of negligence. We also have, by a more artificial process, the modern method of enforcing simple contracts, through the specialized form of this kind of action called assumpsit(e) : the obligation being extended, by a bold and strictly illogical step, to cases of pure non-feasance(f) , and guarded by the requirement of consideration. Gradually assumpsit came to be thought of as founded on a duty ex contractu; so much so that it might not be joined with another cause of action on the case, such as conversion. From a variety of action on the case it had become a perfect species, and in common use its origin was forgotten. But the old root was there still, and had life in it at need. Thus it might happen that facts or pleadings which in the current modern view showed an imperfect cause of action in assumpsit would yet suffice to give the plaintiff judgment on the more ancient ground of misfeasance in a duty imposed by law. In the latest period of common law pleading the House of Lords upheld in this manner a declaration for negligence in the execution of an employment, which averred an undertaking of the employment, but not any promise to the plaintiff, nor, in terms, any consideration(g) . And it was said that a breach of duty in the course of employment under a contract would give rise to an action either in contract or in tort at the plaintiff’s election(h) . This, it will be seen, is confined to an active misdoing; notwithstanding the verbal laxity of one or two passages, the House of Lords did not authorize parties to treat the mere non-performance of a promise as a substantive tort(i) . Until the beginning of this century it was the common practice to sue in tort for the breach of an express warranty, though it was needless to allege or prove the defendant’s knowledge of the assertion being false(j) .

On the other hand, it was held for a considerable time(k) that an action against a common carrier for loss of goods, even when framed in tort, “sounded in contract” so much that it could not be distinguished from assumpsit, and a count so framed could not be properly joined with other forms of case, such as trover. At a later time it was held, for the purpose of a plea in abatement, that the declaration against a carrier on the custom of the realm was in substance ex contractu(l) .

There are certain kinds of employment, namely those of a carrier and an innkeeper, which are deemed public in a special sense. If a man holds himself out as exercising one of these, the law casts on him the duty of not refusing the benefit thereof, so far forth as his means extend, to any person who properly applies for it. The innkeeper must not without a reasonable cause refuse to entertain a traveller, or the carrier to convey goods. Thus we have a duty attached to the mere profession of the employment, and antecedent to the formation of any contract; and if the duty is broken, there is not a breach of contract but a tort, for which the remedy under the common law forms of pleading is an action on the case. In effect refusing to enter into the appropriate contract is of itself a tort. Duties of the same class may be created by statute, expressly or by necessary implication; they are imposed for the benefit of the public, and generally by way of return for privileges conferred by the same statutes, or by others in pari materia, on the persons or corporations who may be concerned.

Special duty of carriers and innkeepers by “custom of the realm.” Here the duty is imposed by the general law, though by a peculiar and somewhat anomalous rule; and it gives rise to an obligation upon a simple non-feasance, unless we say that the profession of a “public employment” in this sense is itself a continuing act, in relation to which the refusal to exercise that employment on due demand is a misfeasance. But on this latter view there would be no reason why the public profession of any trade or calling whatever should not have the like consequences; and such an extension of the law has never been proposed.

The term “custom of the realm” has been appropriated to the description of this kind of duties by the current usage of lawyers, derived apparently from the old current form of declaration. It seems however that in strictness “custom of the realm” has no meaning except as a synonym of the common law, so that express averment of it was superfluous(l) .

Even where the breach of duty is subsequent to a complete contract in any employment of this kind, it was long the prevailing opinion that the obligation was still founded on the custom of the realm, and that the plaintiff might escape objections which (under the old forms of procedure) would have been fatal in an action on a contract(m) .

Alternative of form does not affect substance of duty or liability. In all other cases under this head there are not two distinct causes of action even in the alternative, nor distinct remedies, but one cause of action with, at most, one remedy in alternative forms. And it was an established rule, as long as the forms of action were in use, that the rights and liabilities of the parties were not to be altered by varying the form. Where there is an undertaking without a contract, there is a duty incident to the undertaking(n) , and if it is broken there is a tort, and nothing else. The rule that if there is a specific contract, the more general duty is superseded by it, does not prevent the general duty from being relied on where there is no contract at all(o) . Even where there is a contract, our authorities do not say that the more general duty ceases to exist, or that a tort cannot be committed; but they say that the duty is “founded on contract.” The contract, with its incidents either express or attached by law, becomes the only measure of the duties between the parties. There might be a choice, therefore, between forms of pleading, but the plaintiff could not by any device of form get more than was contained in the defendant’s obligation under the contract.

Thus an infant could not be made chargeable for what was in substance a breach of contract by suing him in an action on the case; and the rule appears to have been first laid down for this special purpose. All the infants in England would be ruined, it was said, if such actions were allowed(p) . So a purchaser of goods on credit, if the vendor resold the goods before default in payment, could treat this as a conversion and sue in trover; but as against the seller he could recover no more than his actual damage, in other words the substance of the right was governed wholly by the contract(q) .

Yet the converse of this rule does not hold without qualification. There are cases in which the remedy on a contract partakes of the restrictions usually incident to the remedy for a tort; but there are also cases in which not only an actual contract, but the fiction of a contract, can be made to afford a better remedy than the more obvious manner of regarding the facts.

Moreover it was held, for the benefit of plaintiffs, that where a man had a substantial cause of action on a contract he should not lose its incidents, such as the right to a verdict for nominal damages in default of proving special damage, by framing his action on the case(r) .

In modern view the obligation is wholly in contract. Now that forms of pleading are generally abolished or greatly simplified, it seems better to say that wherever there is a contract to do something, the obligation of the contract is the only obligation between the parties with regard to the performance, and any action for failure or negligence therein is an action on the contract; and this whether there was a duty antecedent to the contract or not. So much, in effect, has been laid down by the Court of Appeal as regards the statutory distinction of actions by the County Courts Act, for certain purposes of costs, as being “founded on contract” or “founded on tort”(s) . But injury by active misfeasance, which would have been a tort if there had not been any contract, is still a tort(t) .

From this point of view the permanent result of the older theory has been to provide a definite measure for duties of voluntary diligence, whether undertaken by contract or gratuitously, and to add implied warranties of exceptional stringency to the contracts of carriers, innkeepers, and those others (if any) whose employments fall under the special rule attributed to the “custom of the realm”(u) .

Limits of the rule. All these rules and restrictions, however, must be taken with regard to their appropriate subject-matter. They do not exclude the possibility of cases occurring in which there is more than an alternative of form.

If John has contracted with Peter, Peter cannot make John liable beyond his contract; that is, where the facts are such that a cause of action would remain if some necessary element of contract, consideration for example, were subtracted, Peter can, so to speak, waive John’s promise if he think fit, and treat him in point of form as having committed a wrong; but in point of substance he cannot thereby make John’s position worse. In saying this, however, we are still far from saying that there can in no case be a relation between Peter and John which includes the facts of a contract (and to that extent is determined by the obligation of the contract), but in some way extends beyond those facts, and may produce duties really independent of contract. Much less have we said that the existence of such a relation is not to be taken into account in ascertaining what may be John’s duties and liabilities to William or Andrew, who has not any contract with John. In pursuing such questions we come upon real difficulties of principle. This class of cases will furnish our next head.

II.—

Concurrent Causes of Action.

Concurrent causes of action. Herein we have to consider—

• (a) Cases where it is doubtful whether a contract has been formed or there is a contract “implied in law” without any real agreement in fact, and the same act which is a breach of the contract, if any, is at all events a tort;
• (b) Cases where A. can sue B. for a tort though the same facts may give him a cause of action against M. for breach of contract;
• (c) Cases where A. can sue B. for a tort though B.’s misfeasance may be a breach of a contract made not with A. but with M.

Cases of tort, whether contract or no contract between same parties. (a) There are two modern railway cases in which the majority of the Court held the defendants liable on a contract, but it was also said that even if there was no contract there was an independent cause of action. In Denton v. Great Northern Railway Company(u) , an intending passenger was held to have a remedy for damage sustained by acting on an erroneous announcement in the company’s current time-table, probably on the footing of the time-table being the proposal of a contract, but certainly on the ground of its being a false representation. In Austin v. Great Western Railway Company(x) , an action for harm suffered in some accident of which the nature and particulars are not reported, the plaintiff was a young child just above the age up to which children were entitled to pass free. The plaintiff’s mother, who had charge of him, took a ticket for herself only. It was held that the company was liable either on an entire contract to carry the mother and the child (enuring, it seems, for the benefit of both, so that the action was properly brought by the child)(y) , or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely(z) . Such a passenger is, in the absence of fraud, in the position of using the railway company’s property by invitation, and is entitled to the protection given to persons in that position by a class of authorities now well established(a) . Whether the company is under quite the same duty towards him, in respect of the amount of diligence required, as towards a passenger with whom there is an actual contract, is not so clear on principle(b) . The point is not discussed in any of the cases now under review.

Again if a servant travelling with his master on a railway loses his luggage by the negligence of the company’s servants, it is immaterial that his ticket was paid for by his master, and he can sue in his own name for the loss. Even if the payment is not regarded as made by the master as the servant’s agent, as between themselves and the company(c) , the company has accepted the servant and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train without any contract at all(d) . Evidently the plaintiff in a case of this kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort; at the same time the rule that the defendant’s liability must not be increased by varying the form of the claim is not here applicable, since the plaintiff may rely on the tort notwithstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it.

Contract “implied in law” and waiver of tort. On the other hand we have cases in which an obvious tort is turned into a much less obvious breach of contract with the undisguised purpose of giving a better and more convenient remedy. Thus it is an actionable wrong to retain money paid by mistake, or on a consideration which has failed, and the like; but in the eighteenth century the fiction of a promise “implied in law” to repay the money so held was introduced, and afforded “a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund”(e) , and even to cases where goods taken or retained by wrong had been converted into money. The plaintiff was said to “waive the tort” for the purpose of suing in assumpsit on the fictitious contract. Hence the late Mr. Adolphus wrote in his idyllic poem “The Circuiteers”:

• “Thoughts much too deep for tears subdue the Court
• When I assumpsit bring, and godlike waive a tort”(f) .

This kind of action was much fostered by Lord Mansfield, whose exposition confessed the fiction of the form while it justified the utility of the substance(g) . It was carried so far as to allow the master of an apprentice who had been enticed away to sue the person who had wrongfully employed him in an action of indebitatus assumpsit for the value of the apprentice’s work(h) .

Implied warranty of agent’s authority (Collen v. Wright). Within still recent memory an essentially similar fiction of law has been introduced in the case of an ostensible agent obtaining a contract in the name of a principal whose authority he misrepresents. A person so acting is liable for deceit only if the misrepresentation is fraudulent, and that liability (when it exists), being purely in tort, does not extend to his executors. Neither can the professed agent, whether acting in good faith or not, be held personally liable on a contract which he purported to make in the name of an existing principal, though for some time it was a current opinion that he was so liable. To meet these difficulties it was held in Collen v. Wright(i) that when a man purports to contract as agent there is an implied warranty that he is really authorized by the person named as principal, on which warranty he or his estate will be answerable ex contractu. Just as in the case of the old “common counts,” the fact that the action lies against executors shows that there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action, with a remedy upon either at the plaintiff’s election.

We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties.

Concurrent causes of action against different parties in contract and in tort. (b) There may be two causes of action with a common plaintiff, or the same facts may give Z. a remedy in contract against A. and also a remedy in tort against B.

The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for a day.Dalyell v. Tyrer. The plaintiff held a season-ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hurt. He sued not the lessee of the ferry but the owners of the hired vessel; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in exercise of a right acquired by contract upon a consideration paid to some one else(k) .

Foulkes v. Met. Dist. R. Co. A leading decision on facts of this kind was given by the Court of Appeal in 1880(l) .

The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuitable to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff’s ticket had been issued: the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The District Company received him as a passenger in their train, and were bound to provide carriages not only safe and sound in themselves, but safe with reference to the permanent way and appliances of the line. In breach of this duty they provided, according to the facts as determined by the jury, a train so ordered that “in truth the combined arrangements were a trap or snare,” and would have given the plaintiff a cause of action though he had been carried gratuitously(m) . He had been actually received by the defendants as a passenger, and thereby they undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey.

Causes of action in contract and tort at suit of different plaintiffs. (c) There may be two causes of action with a common defendant, or the same act or event which makes A. liable for a breach of contract to B. may make him liable for a tort to Z.

The case already mentioned of the servant travelling by railway with his master would be an example of this if it were determined on any particular state of facts that the railway company contracted only with the master. They would not be less under a duty to the servant and liable for a breach thereof because they might also be liable to the master for other consequences on the ground of a breach of their contract with him(n) .

Again, an officer in Her Majesty’s service and his baggage were carried under a contract made with the carriers on behalf of the Government of India; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. “The contract is no concern of the plaintiff’s; the act was none the less a wrong to him”(o) . He could not charge the defendants with a breach of contract, but they remained answerable for “an affirmative act injurious to the plaintiff’s property”(p) .

Alton v. Midland R. Co., qu. whether good law. The decision of the Court of Common Pleas in Alton v. Midland Railway Co.(q) is difficult to reconcile with the foregoing authorities. A servant travelling by railway on his master’s business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company’s servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed cause of action arising, in the opinion of the Court, wholly out of the company’s contract of carriage; which contract being made with the servant, no third person could found any right upon it. “The rights founded on contract belong to the person who has stipulated for them”(r) ; and it is denied that there was any duty independent of contract(s) . But it is not explained in any of the judgments how this view is consistent with the authorities relied on for the plaintiff, and in particular with Marshall’s case, a former decision of the same Court. The test question, whether the reception of the plaintiff’s servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly, or, it is submitted, adequately dealt with. The case, though expressly treated by the Court as of general importance, has been but little cited or relied on during the thirty years that have now passed; and the correctness of the decision was disputed (extrajudicially, it is true) by Sir E. V. Williams(t) . A directly contrary decision has also been given in the State of Massachusetts(u) . Alton’s case, moreover, seems to be virtually overruled by Foulkes’s case, which proceeds on the existence of a duty not only in form but in substance independent of contract. The only way of maintaining the authority of both decisions would be to say that in Alton’s case the master could not recover because the servant had a contract with the defendant railway company, but that he might have been entitled to recover if the servant had been travelling with a free pass, or with a ticket taken and paid for by a stranger, or issued by another company, or had suffered from a fault in the permanent way or the structure of a station. But such a distinction does not appear reasonable.

It might perhaps have been argued that at all events such negligence must be shown as would make a carrier of passengers liable to a person being carried gratuitously; it might also be open to argument whether the person injured (apparently a commercial traveller) was really the servant of the plaintiff in such a sense that an action could be maintained for the loss of his service. Doubtless the action for wrong to a servant per quod servitium amisit is of an archaic character and not favoured in our modern law, and this may have unconsciously influenced the Court. Neither of these points, however, was discussed, nor indeed were they open to discussion upon the issues of law raised by the pleadings, on which alone the case was argued and decided. The questions what degree of negligence must be shown, whether a mere non-feasance would be enough, or the like, could have been properly raised only when the evidence came out(x) .

The most ingenious reason for the judgment of the Court is that of Willes J., who said that to allow such an action would be to allow a stranger to exercise and determine the election (of suing in contract or tort) which the law gives only to the person actually injured. But it is submitted that the latter is (or was) required to elect between the two causes of action as a matter of remedy, not of right, and because he is to be compensated once and once only for the same damage; and that such election neither affects nor is affected by the position of a third person. Moreover the master does not sue as a person claiming through the servant, but in a distinct right. The cause of action and the measure of damages are different(y) . On the whole the weight of principle and authority seems to be so strong against Alton’s case that, notwithstanding the respect due to the Court before which it came, and which included one of the greatest masters of the common law at any time, the only legitimate conclusion is that it was wrongly decided.

The case has now been commented on in the Court of Appeal with doubt only short of express disapproval(z) .

Winterbottom v. Wright, &c. It appears, then, that there has been a certain tendency to hold that facts which constitute a contract cannot have any other legal effect. We think we have shown that such is not really the law, and we may add that the authorities commonly relied on for this proposition really prove something different and much more rational, namely, that if A. breaks his contract with B. (which may happen without any personal default in A. or A.’s servants), that is not of itself sufficient to make A. liable to C., a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright(a) and Longmeid v. Holliday(b) . In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using the chattel—a coach in the one case, a lamp in the other—in the ordinary way, came to harm through its dangerous condition, and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant’s part was proved. If bad faith(c) or misfeasance by want of ordinary care(d) had been shown, or, it may be, if the chattels in question had been of the class of eminently dangerous things which a man deals with at his peril(e) , the result would have been different. With regard to the last-mentioned class of things the policy of the law has created a stringent and peculiar duty, to which the ordinary rule that the plaintiff must make out either wilful wrong-doing or negligence does not apply. There remain over some few miscellaneous cases currently cited on these topics, of which we have purposely said nothing because they are little or nothing more than warnings to pleaders(f) .

Concurrence of breach of contract with delict in Roman law. If, after this examination of the authorities, we cannot get rid of the notion that the concurrence of distinct causes of action ex delicto and ex contractu is a mere accident of common law procedure, we have only to turn to the Roman system and find the same thing occurring there. A freeborn filius familias, being an apprentice, is immoderately beaten by his master for clumsiness about his work. The apprentice’s father may have an action against the master either on the contract of hiring (ex locato)(g) , or at his option an action under the lex Aquilia, since the excess in an act of correction which within reasonable bounds would have been lawful amounts to culpa(h) . It is like the English cases we have cited where there was held to be a clear cause of action independent of contract, so that it was not necessary for the plaintiff to make out a breach of contract as between the defendant and himself.

III.—

Causes of action dependent on collateral contract. What did Lumley v. Gye decide?Causes of Action in Tort dependent on a Contract not between the same Parties.

(a) When a binding promise is made, an obligation is created which remains in force until extinguished by the performance or discharge of the contract. Does the duty thus owed to the promisee constitute the object of a kind of real right which a stranger to the contract can infringe, and thereby render himself answerable ex delicto? In other words, does a man’s title to the performance of a promise contain an element analogous to ownership or possession? The general principles of the law (notwithstanding forms of speech once in use, and warranted by considerable authority)(i) seem to call for a negative answer. It would confuse every accustomed boundary between real and personal rights, dominion and obligation, to hold that one who without any ill-will to Peter prevents Andrew from performing his contract with Peter may be a kind of trespasser against Peter(k) . For Peter has his remedy against Andrew, and never looked to having any other; and Andrew’s motives for breaking his contract are not material. Yet there is some show of authority for affirming the proposition thus condemned. It was decided by the Court of Queen’s Bench in Lumley v. Gye (1853)(l) , and by the Court of Appeal in Bowen v. Hall (1881)(m) , that an action lies, under certain conditions, for procuring a third person to break his contract with the plaintiff. We must, therefore, examine what the conditions of these cases were, and how far the rule laid down by them really extends.

Special damage and malice are of the gist of the action. First, it is admitted that actual damage must be alleged and proved(n) . This at once shows that the right violated is not an absolute and independent one like a right of property, for the possibility of a judgment for nominal damages is in our law the touchstone of such rights. Where specific damage is necessary to support an action, the right which has been infringed cannot be a right of property, though in some cases it may be incident to property.

Next, the defendant’s act must be malicious, in the sense of being aimed at obtaining some advantage for himself at the plaintiff’s expense, or at any rate at causing loss or damage to the plaintiff. In the decided cases the defendant’s object was to withdraw from a rival in business, and procure for himself, the services of a peculiarly skilled person—in the earlier case an operatic singer, in the later a craftsman to whom, in common with only a few others, a particular process of manufacture was known. Various cases may be put of a man advising a friend, in all honesty and without ill-will to the other contracting party, to abide the risks of breaking an onerous or mischievous contract rather than those of performing it(o) . And it would be unreasonable in such cases to treat the giving of such advice, if it be acted on, as a wrong. Lucilia has imprudently accepted an offer of marriage from Titius, her inferior in birth, station, and breeding: Lucilia’s brother Marcus, knowing Titius to be a man of bad character, persuades Lucilia to break off the match: shall any law founded in reason say that Marcus is liable to an action at the suit of Titius? Assuredly not: and there is no decision that authorizes any such proposition even by way of plausible extension. There must be a wrongful intent to do harm to the plaintiff before the right of action for procuring a breach of contract can be established. Mere knowledge that there is a subsisting contract will not do. The breach of contract is in truth material only because it excludes the defence that the act complained of, though harmful and intended to do harm, was done in the exercise of a common right. Even that defence has been held not to be available against an allegation of malice. An action has been allowed to lie for “maliciously” procuring persons not to enter into contracts. But the correctness of this decision seems doubtful(p) .

Question of remoteness of damage. In this view the real point of difficulty is reduced to this, that the damage may be deemed too remote to found the action upon. For if A. persuades B. to break his contract with Z., the proximate cause of Z.’s damage, in one sense, is not the conduct of A. but the voluntary act or default of B. We do not think it can be denied that there was a period in the history of the law when this objection would have been held conclusive. Certainly Lord Ellenborough laid it down as a general rule of law that a man is answerable only for “legal and natural consequence,” not for “an illegal consequence,” that is, a wrongful act of a third person(q) . But this opinion is now disapproved(r) .

The tendency of our later authorities is to measure responsibility for the consequences of an act by that which appeared or should have appeared to the actor as natural and probable, and not to lay down fixed rules which may run counter to the obvious facts. Here the consequence is not only natural and probable—if A.’s action has any consequence at all—but is designed by A.: it would, therefore, be contrary to the facts to hold that the interposition of B.’s voluntary agency necessarily breaks the chain of proximate cause and probable consequence. A proximate cause need not be an immediate cause.

Liability for negligence, as we have seen(s) , is not always or even generally excluded by what is called “contributory negligence of a third person.” In any case it would be strange if it lay in a man’s mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence. The iniquity of such a defence is obvious in the grosser examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any “legal consequence,” the act of compliance or obedience being a crime; but no one has suggested on this ground any doubt that the procurement is also a crime.

Motive as an ingredient in the wrong. It may likewise be said that the general habit of the law is not to regard motive as distinguished from intent, and that the decision in Lumley v. Gye, as here understood and limited, is therefore anomalous at best. Now the general habit is as stated, but there are well established exceptions to it, of which the action for malicious prosecution is the most conspicuous: there it is clear law that indirect and improper motive must be added to the other conditions to complete the cause of action. The malicious procuring of a breach of contract, or of certain kinds of contracts, forms one more exception. It may be that the special damage which is the ground of the action must be such as cannot be redressed in an action for the breach of contract itself; in other words, that the contract must be for personal services, or otherwise of such a kind that an action against the contracting party would not afford an adequate remedy. But then the remedy against the wrong-doer will not be adequate either; so that there does not appear to be much rational ground for this limitation. The obvious historical connexion with the action for enticing away a servant will not help to fix the modern principle. Coleridge J. rightly saw that there was no choice between facing the broader issues now indicated and refusing altogether to allow that any cause of action appeared.

American doctrine. In America the decision in Lumley v. Gye has been followed in Massachusetts(t) and more lately by the Supreme Court of the United States(u) and is generally accepted, with some such limitation as here maintained. The rule “does not apply to a case of interference by way of friendly advice, honestly given; nor is it in denial of the right of free expression of opinion”(x) .

Wilful interference with contract without persuasion. It is, perhaps, needless to consider specially the case of a man wilfully preventing the performance of a contract by means other than persuasion; for in almost every such case the means employed must include an act in itself unlawful (as disabling one of the contracting parties by personal violence, or destroying or spoiling a specific thing contracted for); and, if so, the question comes round again to the general principles of remoteness of damage(y) .

Damage to stranger by breach of contract. (b) Procuring a breach of contract, then, may be actionable if maliciously done; or a contracting party may indirectly through the contract, though not upon it, have an action against a stranger. Can he become liable to a stranger? We have already seen that a misfeasance by a contracting party in the performance of his contract may be an independent wrong as against a stranger to the contract, and as such may give that stranger a right of action(z) . On the other hand, a breach of contract, as such, will generally not be a cause of action for a stranger(a) . And on this principle it is held by our courts that where a message is incorrectly transmitted by the servants of a telegraph company, and the person to whom it is delivered thereby sustains damage, that person has not any remedy against the company. For the duty to transmit and deliver the message arises wholly out of the contract with the sender, and there is no duty towards the receiver. Wilful alteration of a message might be the ground of an action for deceit against the person who altered it, as he would have knowingly made a false statement as to the contents of the message which passed through his hands. But a mere mistake in reading off or transmitting a letter or figure, though it may materially affect the sense of the despatch, cannot be treated as a deceit(b) .

Position of receiver of erroneous telegram: different views in England and U. S. “In America, on the other hand, one who receives a telegram which, owing to the negligence of the telegraph company, is altered or in other respects untrue, is invariably permitted to maintain an action against the telegraph company for the loss that he sustains through acting upon that telegram:” the latest commentator on the American authorities, however, finds the reasoning of the English courts difficult to answer(c) . And the American decisions appear to rest more on a strong sense of public expediency than on any one definite legal theory. The suggestion that there is something like a bailment of the message may be at once dismissed. Having regard to the extension of the action for deceit in certain English cases(d) , there is perhaps more to be said for the theory of misrepresentation than our courts have admitted; but this too is precarious ground. The real question of principle is whether a general duty of using adequate care can be made out. I am not bound to undertake telegraphic business at all; but if I do, am I not bound to know that errors in the transmission of messages may naturally and probably damnify the receivers? and am I not therefore bound, whether I am forwarding the messages under any contract or not, to use reasonable care to ensure correctness? I cannot warrant the authenticity or the material truth of the despatch, but shall I not be diligent in that which lies within my power, namely the delivery to the receiver of those words or figures which the sender intended him to receive? If the affirmative answer be right, the receiver who is misled may have a cause of action, namely for negligence in the execution of a voluntary undertaking attended with obvious risk. But a negative answer is given by our own courts, on the ground that the ordinary law of negligence has never been held to extend to negligence in the statement of facts (if it did, there would be no need of special rules as to deceit); and that the delivery of a message, whether by telegraph or otherwise, is nothing but a statement that certain words have been communicated by the sender to the messenger for the purpose of being by him communicated to the receiver. It may perhaps be said against this that the nature of telegraph business creates a special duty of diligence in correct statement, so that an action as for deceit will lie without actual fraud. But since the recent cases following Derry v. Peek(e) this could hardly be argued in England. Perhaps it would be better to say that the systematic undertaking to deliver messages in a certain way (much more the existence of a corporation for that special purpose) puts the case in a category of its own apart from representations of fact made in the common intercourse of life, or the repetition of any such representation. Thus we should come back to the old ground of the action on the case for misfeasance. The telegraph company would be in the same plight as the smith who pricks a horse with a nail, or the unskilful surgeon, and liable without any question of contract or warranty. Such liability would not necessarily be towards the receiver only, though damages incurred by any other person would in most cases be too remote. The Court of Appeal has for the present disposed of the matter for this country, and inland communication by telegraph is now in the hands of the Postmaster-General, who could not be sued even if the American doctrine were adopted. With regard to foreign telegrams, however, the rule is still of importance, and until the House of Lords has spoken it is still open to discussion.

The conflict considered on principle. In the present writer’s opinion the American decisions, though not all the reasons given for them, are on principle correct. The undertaking to transmit a sequence of letters or figures (which may compose significant words and sentences, but also may be, and often are, mere unintelligible symbols to the transmitter) is a wholly different thing from the statement of an alleged fact or the expression of a professed opinion in one’s own language. Generally speaking, there is no such thing as liability for negligence in word as distinguished from act; and this difference is founded in the nature of the thing(f) . If a man asserts as true that which he does not believe to be true, that is deceit; and this includes, as we have seen, making assertions as of his own knowledge about things of which he is consciously ignorant. If he only speaks, and purports to speak, according to his information and belief, then he speaks for his own part both honestly and truly, though his information and belief may be in themselves erroneous, and though if he had taken ordinary pains his information might have been better. If he expresses an opinion, that is his opinion for what it is worth, and others must estimate its worth for themselves. In either case, in the absence of a special duty to give correct information or a competent opinion, there is no question of wrong-doing. If the speaker has not come under any such duty, he was not bound to have any information or to frame any opinion. But where a particular duty has been assumed, it makes no difference that the speaking or writing of a form of words is an incident in the performance. If a medical practitioner miscopies a formula from a pharmacopœia or medical treatise, and his patient is poisoned by the druggist making it up as so copied, surely that is actionable negligence, and actionable apart from any contract. Yet his intention was only to repeat what he found in the book. It is true that the prescription, even if he states it to be taken out of the book, is his prescription, and he is answerable for its being a fit one; if it be exactly copied from a current book of good repute which states it to be applicable to such cases as the one in hand, that will be evidence, but only evidence, that the advice was competent.

Again the negligent misreading of an ancient record by a professed palæographist might well be a direct and natural cause of damage; if such a person, being employed under a contract with a solicitor, made a negligent mistake to the prejudice of the ultimate client, is it clear that the client might not have an action against him? If not, he may with impunity be negligent to the verge of fraud; for the solicitor, not being damnified, would have no cause of action, or at most a right to nominal damages on the contract. The telegraph clerk’s case is more like one of these (we do not say they are precisely analogous) than the mere reporting or repetition of supposed facts. There remains, no doubt, the argument that liability must not be indefinitely extended. But no one has proposed to abolish the general rule as to remoteness of damage, of which the importance, it is submitted, is apt to be obscured by contriving hard and fast rules in order to limit the possible combinations of the elements of liability. Thus it seems that even on the American view damages could not be recovered for loss arising out of an error in a ciphered telegram, for the telegraph company would have no notice of what the natural and probable consequences of error would be(g) .

Uncertainty still remaining in English doctrine. Taking together all the matters hitherto discussed in this chapter, it appears that different views and tendencies have on different occasions prevailed even in the same court, and that we are not yet in possession of a complete and consistent doctrine. Fleming’s case(h) is reconcilable, but only just reconcilable, with Foulkes’s case(i) , and Dickson v. Reuter’s Telegram Co.(k) , though not directly opposed to Bowen v. Hall(l) , is certainly not conceived in the same spirit.

Character of morally innocent acts affected by extraneous contract. (c) There are likewise cases where an innocent and even a prudent person will find himself within his right, or a wrong-doer, according as there has or has not been a contract between other parties under which the property or lawful possession of goods has been transferred. If a man fraudulently acquires property in goods, or gets delivery of possession with the consent of the true owner, he has a real though a defeasible title, and at any time before the contract is avoided (be it of sale or any form of bailment) he can give an indefeasible title by delivery over to a buyer or lender for valuable consideration given in good faith(m) . On the other hand a man may obtain the actual control and apparent dominion of goods not only without having acquired the property, but without any rightful transfer of possession. He may obtain possession by a mere trick, for example by pretending to be another person with whom the other party really intends to deal(n) , or the agent of that person(o) . In such a case a third person, even if he has no means of knowing the actual possessor’s want of title, cannot acquire a good title from him unless the sale is in market overt, or the transaction is within some special statutory protection, as that of the Factors Acts. He deals, however innocently, at his peril. In these cases there may be hardship, but there is nothing anomalous. It is not really a contract between other parties that determines whether a legal wrong has been committed or not, but the existence or non-existence of rights of property and possession—rights available against all the world—which in their turn exist or not according as there has been a contract, though perhaps vitiated by fraud as between the original parties, or a fraudulent obtaining of possession(p) without any contract. The question is purely of the distribution of real rights as affording occasion for their infringement, it may be an unconscious infringement. A man cannot be liable to A. for meddling with A.’s goods while there is an unsettled question whether the goods are A.’s or B.’s. But it cannot be a proposition in the law of torts that the goods are A.’s or B.’s, and it can be said to be, in a qualified sense, a proposition in the law of contract only because in the common law property and the right to possession can on the one hand be transferred by contract without delivery or any other overt act, and on the other hand the legal effect of a manual delivery or consignment may depend on the presence or absence of a true consent to the apparent purpose and effect of the act. The contract, or the absence of a contract, is only part of the incidents determining the legal situation on which the alleged tortious act operates. There are two questions, always conceivably and often practically distinct: Were the goods in question the goods of the plaintiff? Did the act complained of amount to a trespass or conversion? Both must be distinctly answered in the affirmative to make out the plaintiff’s claim, and they depend on quite different principles(o) . There is therefore no complication of contract and tort in these cases, but only—if we may so call it—a dramatic juxtaposition.

IV.—

Measure of Damages and other Incidents of the Remedy.

Measure of damages, &c. With regard to the measure of damages, the same principles are to a great extent applicable to cases of contract and of tort, and even rules which are generally peculiar to one branch of the law may be applied to the other in exceptional classes of cases.

The liability of a wrong-doer for his act is determined, as we have seen, by the extent to which the harm suffered by the plaintiff was a natural and probable consequence of the act. This appears to be also the true measure of liability for breach of contract; “the rule with regard to remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort”(p) ; the judgment of what is natural and probable being taken as it would have been formed by a reasonable man in the defendant’s place at the date of the wrongful act, or the conclusion of the contract, as the case may be. No doubt there have been in the law of contract quite recent opinions of considerable authority casting doubt on the rule of Hadley v. Baxendale(q) , and tending to show that a contracting party can be held answerable for special consequences of a breach of his contract only if there has been something amounting to an undertaking on his part to bear such consequences; on this view even express notice of the probable consequences—if they be not in themselves of a common and obvious kind, such as the plaintiff’s loss of a difference between the contract and the market price of marketable goods which the defendant fails to deliver—would not of itself suffice(r) .

Rule as to consequential damage: how far alike in contract and tort. But the Court of Appeal has more lately disapproved this view, pointing out that a contracting party’s liability to pay damages for a breach is not created by his agreement to be liable, but is imposed by law. “A person contemplates the performance and not the breach of his contract; he does not enter into a kind of second contract to pay damages, but he is liable to make good those injuries which he is aware that his default may occasion to the contractee”(s) .

The general principle, therefore, is still the same in contract as in tort, whatever difficulty may be found in working it out in a wholly satisfactory manner in relation to the various combinations of fact occurring in practice(t) .

One point may be suggested as needful to be borne in mind to give a consistent doctrine. Strictly speaking, it is not notice of apprehended consequences that is material, but notice of the existing facts by reason whereof those consequences will naturally and probably ensue upon a breach of the contract(u) .

Vindictive character of action for breach of promise of marriage. Exemplary or vindictive damages, as a rule, cannot be recovered in an action on a contract, and it makes no difference that the breach of contract is a misfeasance capable of being treated as a wrong. Actions for breach of promise of marriage are an exception, perhaps in law, certainly in fact: it is impossible to analyse the estimate formed by a jury in such a case, or to prevent them from giving, if so minded, damages which in truth are, and are intended to be, exemplary(x) . Strictly the damages are by way of compensation, but they are “almost always considered by the jury somewhat in poenam”(y) . Like results might conceivably follow in the case of other breaches of contract accompanied with circumstances of wanton injury or contumely.

Contracts on which executors cannot sue. In another respect breach of promise of marriage is like a tort: executors cannot sue for it without proof of special damage to their testator’s personal estate; nor does the action lie against executors without special damage(z) . “Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record; otherwise the Court cannot intend it”(a) . The same rule appears to hold as concerning injuries to the person caused by unskilful medical treatment, negligence of carriers of passengers or their servants, and the like, although the duty to be performed was under a contract(b) . Positive authority, however, has not been found on the extent of this analogy. The language used by the Court of King’s Bench is at any rate not convincing, for although certainly a wrong is not property, the right to recover damages for a wrong is a chose in action; neither can the distinction between liquidated and unliquidated damages afford a test, for that would exclude causes of action on which executors have always been able to sue. We have considered in an earlier chapter the exceptional converse cases in which by statute or otherwise a cause of action for a tort which a person might have sued on in his lifetime survives to his personal representatives.

Where there was one cause of action with an option to sue in tort or in contract, the incidents of the remedy generally were determined once for all, under the old common law practice, by the plaintiff’s election of his form of action. But this has long ceased to be of practical importance in England, and, it is believed, in most jurisdictions.

APPENDIX

[(a) ]13 Edw. I., c. 24.

[(b) ]I do not think it was ever attempted to bring the real actions under this classification.

[(c) ]And strictly, not for an action of trespass; but there are classes of facts which may be regarded as constituting either wrongs of misfeasance (case), or acts which might be justified under some common or particular claim of right, but not being duly done fail of such justification and are merely wrongful (trespass).

[(d) ]Gladwell v. Steggall (1839) 5 Bing. N. C. 733, 8 Scott, 60, 8 L. J. C. P. 361; action by an infant for incompetence in surgical treatment. In such an action the plaintiff’s consent is material only because without it the defendant would be a mere trespasser, and the incompetence would not be the gist of the action, but matter for aggravation of damages. To the same effect is Pippin v. Sheppard (1822) 11 Price 400, holding that a declaration against a surgeon for improper treatment was not bad for not showing by whom the surgeon was retained or to be paid. As to the assumption of special skill being material, see Shiells v. Blackburne (1789) 1 H. Bl. 158, 2 R. R. 750.

[(e) ]O. W. Holmes, The Common Law, pp. 274 sqq.; J. B. Ames in Harv. Law Rev. ii. 1, 53.

[(f) ]An analogy to this in the Roman theory of culpa, under the Lex Aquilia, can hardly be sustained. See the passages in D. 9. 2. collected and discussed in Dr. Grueber’s treatise, at pp. 87, 209. On the other hand the decision in Slade’s case, 4 Co. Rep. 91 a, that the existence of a cause of action in debt did not exclude assumpsit, was in full accordance with the original conception.

[(g) ]Brown v. Boorman (1844) 11 Cl. & F. 1. The defendant’s pleader appears to have been unable to refer the declaration to any certain species; to make sure of having it somewhere he pleaded—(1) not guilty; (2) non assumpsit; (3) a traverse of the alleged employment.

[(h) ]Per Lord Campbell.

[(i) ]Courtenay v. Earle (1850) 10 C. B. 73, 20 L. J. C. P. 7. See especially the dicta of Maule J. in the course of the argument. In that case it was attempted to join counts, which were in substance for the non-payment of a bill of exchange, with a count in trover.

[(j) ]Williamson v. Allison (1802) 2 East 446.

[(k) ]From 1695, Dalston v. Janson, 5 Mod. 89, 1 Ld. Raym. 58, till 1766, when the last-mentioned case and others to the same effect were overruled in Dickon v. Clifton, 2 Wils. 319.

[(l) ]Buddle v. Willson (1795) 6 T. R. 369, 3 R. R. 202, see Mr. Campbell’s note at p. 206.

[(l) ]Pozzi v. Shipton (1839) 8 A. & E. 963, 975, 8 L. J. Q. B. 1. Cp. Tattan v. G. W. R. Co. (1860) 2 E. & E. 844, 29 L. J. Q. B. 184, Y. B. 2 Hen. IV. 18, pl. 5.

[(m) ]Pozzi v. Shipton, last note.

[(n) ]Gladwell v. Steggall (1839) 5 Bing. N. C. 733, 8 Scott 60, 8 L. J. C. P. 361.

[(o) ]Austin v. G. W. R. Co. (1867) L. R. 2 Q. B. 442, where the judgment of Blackburn J. gives the true reason. See further below.

[(p) ]Jennings v. Rundall (1799) 8 T. R. 335, 4 R. R. 680; p. 50, above. The addition of a count charging wilful fraud made no difference: Green v. Greenbank (1816) 2 Marsh. 485; 17 R. R. 529.

[(q) ]Chinery v. Viall (1860) 5 H. & N. 288, 29 L. J. Ex. 180; p. 325, above.

[(r) ]Marzetti v. Williams (1830) 1 B. & Ad. 415; action by customer against banker for dishonouring cheque.

[(s) ]Fleming v. Manchester, Sheffield & Lincolnshire R. Co. (1878) 4 Q. B. D. 81. It is impossible to reconcile the grounds of this decision with those of Pozzi v. Shipton (1839) 8 A. & E. 963, 8 L. J. Q. B. 1; p. 482, above.

[(t) ]Taylor v. M. S. & L. R. Co., ’95, 1 Q. B. 134, 14 R. Jan. 350, 64 L. J. Q. B. 6 C. A. (porter shut carriage door on plaintiff’s thumb). The enactment is s. 116 of the County Courts Act, 1888, superseding a similar section in the repealed Act of 1867.

[(u) ]It has been suggested that a shipowner may be under this responsibility, not because he is a common carrier, but by reason of a distinct though similar custom extending to shipowners who carry goods for hire without being common carriers; Nugent v. Smith (1876) 1 C. P. D. 14, 45 L. J. C. P. 19; but the decision was reversed on appeal, 1 C. P. D. 423, 45 L. J. C. P. 697, and the propositions of the Court below specifically controverted by Cockburn C. J., see 1 C. P. D. at pp. 426 sqq. I am not aware of any other kind of employment to which the “custom of the realm” has been held to apply.

[(u) ]5 E. & B. 860, 25 L. J. Q. B. 129 (1856), see p. 273 above, and Principles of Contract, 6th ed. 15, 16. The case is perhaps open to the remark that a doubtful tort and the breach of a doubtful contract were allowed to save one another from adequate criticism.

[(x) ]L. R. 2 Q. B. 442 (1867).

[(y) ]Per Lush J. at p. 447.

[(z) ]Per Blackburn J. at p. 445, and see per Grove J. in Foulkes v. Metrop. District R. Co. (1880) 4 C. P. D. at p. 279, 48 L. J. C. P. 555.

[(a) ]See Chap. XII. p. 460 above; and cp. Taylor’s ca. note (t), p. 484, above.

[(b) ]See Moffatt v. Bateman (1869) L. R. 3 P. C. 115.

[(c) ]Suppose the master by accident had left his money at home, and the servant had paid both fares out of his own money: could it be argued that the master had no contract with the company?

[(d) ]Marshall v. York, Newcastle & Berwick R. Co. (1851) 11 C. B. 655, 21 L. J. C. P. 34; approved by Blackburn J. in Austin v. G. W. R. Co., note (x), p. 486.

[(e) ]Blackst. iii. 163.

[(f) ]L. Q. R. i. 233.

[(g) ]Moses v. Macferlan, 2 Burr. 1005; cp. Leake on Contracts, 3rd ed. 54, 70, 71. As to the limits of the option to sue in assumpsit in such cases, see Waiver of Tort, by Prof. W. A. Keener, Harv. Law Rev. vi. 223.

[(h) ]Lightly v. Clouston (1808) 1 Taunt. 112, 9 R. R. 713.

[(i) ]Ex. Ch. (1857) 8 E. & B. 647, 27 L. J. Q. B. 215.

[(k) ]Dalyell v. Tyrer (1858) E. B. & E. 899, 28 L. J. Q. B. 52.

[(l) ]Foulkes v. Metrop. Dist. R. Co., 5 C. P. Div. 157, 49 L. J. C. P. 361. Cp. Berringer v. G. E. R. Co. (1879) 4 C. P. D. 163, 48 L. J. C. P. 400.

[(m) ]Bramwell L. J., 5 C. P. Div. at p. 159. See the judgment of Thesiger, L. J. for a fuller statement of the nature of the duty. Comparison of these two judgments leaves it capable of doubt whether the defendants would have been liable for a mere non-feasance; Taylor’s ca. (p. 495, below), does not remove that doubt.

[(n) ]Marshall’s ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, supra, p. 487.

[(o) ]Martin v. G. I. P. R. Co. (1867) L. R. 3 Ex. 9, per Bramwell B. at p. 14, 37 L. J. Ex. 27.

[(p) ]Channell B. ibid.; Kelly C. B. and Pigott B. doubted. The later case of Becher v. G. E. R. Co. (1870) L. R. 5 Q. B. 241, 39 L. J. Q. B. 122, is distinguishable: all it decides is that if A. delivers B.’s goods to a railway company as A.’s own ordinary luggage, and the company receives them to be carried as such, B. cannot sue the company for the loss of the goods. Martin’s case, however, was not cited.

[(q) ]19 C. B. N. S. 213, 34 L. J. C. P. 292 (1865). This case was not cited either in Martin v. G. I. P. R. Co. or Foulkes v. Met. Dist. R. Co.

[(r) ]Willes J., 19 C. B. N. S. at p. 240.

[(s) ]Montague Smith J. at p. 245.

[(t) ]“The Court decided this case on the principle that one who is no party to a contract cannot sue in respect of the breach of a duty arising out of the contract. But it may be doubted whether this was correct; for the duty, as appears by the series of cases cited in the earlier part of this note, does not exclusively arise out of the contract, but out of the common law obligation of the defendants as carriers;” 1 Wms. Saund. 474. Sir E. V. Williams was a member of the Court which decided Marshall’s case, supra, p. 487.

[(u) ]Ames v. Union R. Co. (1875) 117 Mass. 541, expressly following Marshall’s ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, supra, p. 487.

[(x) ]Compare Mr. Henry T. Terry’s criticism in “Leading Principles of Anglo-American Law,” Philadelphia, 1884, pp. 485—488.

[(y) ]See p. 210 above.

[(z) ]Taylor v. M. S. & L. R. Co., ’95, 1 Q. B. 134 (also in 14 R. Jan. 350, and 64 L. J. Q. B. 6). See per A. L. Smith L. J. ’95, 1 Q. B. at pp. 140, 141, but it is submitted that neither the declaration nor the argument for the plaintiff treated the action as founded on contract, but only the defendant’s plea.

[(a) ]10 M. & W. 109, 11 L. J. Ex. 415 (1842).

[(b) ]6 Ex. 761, 20 L. J. Ex. 430 (1851).

[(c) ]Langridge v. Levy (1837) 2 M. & W. 519.

[(d) ]George v. Skivington (1869) L. R. 5 Ex. 1, 38 L. J. Ex. 8.

[(e) ]See Thomas v. Winchester (1852) 6 N. Y. 397, Bigelow L. C. 602, p. 456, above.

[(f) ]Such is Collis v. Selden (1868) L. R. 3 C. P. 495, 37 L. J. C. P. 233, where the declaration attempted to make a man liable for creating a dangerous state of things, without any allegation that he knew of the danger, or had any control over the thing he worked upon or the place where it was, or that the plaintiff was anything more than a “bare licensee.” Tollit v. Sherstone, 5 M. & W. 283, is another study in bad pleading which adds nothing to the substance of the law. So Howard v. Shepherd (1850) 9 C. B. 296, exhibits an attempt to disguise a manifestly defective cause of action in assumpsit by declaring in the general form of case.

[(g) ]D. 19, 2. locati conducti, 13, § 4.

[(h) ]D. 9, 2. 5, § 3; Grueber on the Lex Aquilia, p. 14: the translation there given is not altogether correct, but the inaccuracies do not affect the law of the passage. And see D. h. t. 27, §§ 11, 33, Grueber, p. 230.

[(i) ]Blackstone, ii. 442, speaks of a contract to pay a sum of money as transferring a property in that sum; but he forthwith adds that this property is “not in possession but in action merely,” i.e. it is not property in a strict sense: there is a res but not a dominus, Vermögen but not Eigenthum.

[(k) ]We have no right to say that a system of law is not conceivable where such a doctrine would be natural or even necessary. But that system, if it did exist, would be not at all like the Roman law and not much like the common law.

[(l) ]2 E. & B. 216, 22 L. J. Q. B. 463; by Crompton, Erle, and Wightman JJ.; diss. Coleridge J.

[(m) ]6 Q. B. Div. 333, 50 L. J. Q. B. 305; by Lord Selborne L. C. and Brett L. J.; diss. Lord Coleridge C. J.

[(n) ]See the declaration in Lumley v. Gye. In Bowen v. Hall it does not appear how the claim for damages was framed, but in the opinion of the majority of the Court there was evidence of special damage; see 6 Q. B. D. 337.

[(o) ]See the dissenting judgment of Sir John Coleridge in Lumley v. Gye.

[(p) ]Temperton v. Russell, ’93, 1 Q. B. 715, C. A. See p. 295 above.

[(q) ]Vicars v. Wilcocks (1807) 8 East, 1, 9 R. R. 361, and in 2 Sm. L. C.

[(r) ]See Lynch v. Knight (1861) 9 H. L. C. 577, and notes to Vicars v. Wilcocks in Sm. L. C.

[(s) ]Pp. 422—425, above.

[(t) ]Walker v. Cronin (1871) 107 Mass. 555, a case very like Bowen v. Hall.

[(u) ]Angle v. Chicago, St. Paul, &c. Ry. (1893) 151 U. S. 1, 13.

[(x) ]107 Mass. 566. I owe the following additional references to State reports to the kindness of an American friend:—Rice v. Manley, 66 N. Y. (21 Sickels) 82; Benton v. Pratt, 2 Wend. 385 (see p. 285 above); Jones v. Blocker, 43 Ga. 331; Haskin v. Royster, 70 N. C. 601; Jones v. Starly, 76 N. C. 355; Dickson v. Dickson, La. An. 1261; Burger v. Carpenter, 2 S. C. 7.

[(y) ]See Mr. William Schofield on “The principle of Lumley v. Gye and its application,” Harv. Law Rev. ii. 19.

[(z) ]P. 491 above.

[(a) ]The exceptions to this rule are wider in America than in England.

[(b) ]Dickson v. Reuter’s Telegram Co. (1877) 3 C. P. Div. 1, 47 L. J. C. P. 1, confirming Playford v. U. K. Electric Telegraph Co. (1869) L. R. 4 Q. B. 706, 38 L. J. Q. B. 249.

[(c) ]Gray on Communication by Telegraph (Boston, 1885) §§ 71-73, where authorities are collected. And see Wharton on Contracts, §§ 791, 1056, who defends the American rule on somewhat novel speculative grounds. Perhaps the common law ought to have a theory of culpa in contrahendo, but the lamented author’s ingenuity will not persuade many common lawyers that it has. And if it had, I fail to see how that could affect the position of parties between whom there is not even the offer of a contract.

[(d) ]See especially Denton v. G. N. R. Co. (1856) 5 E. & B. 860, 25 L. J. Q. B. 129, p. 259 above.

[(e) ]See pp. 270, 271 above.

[(f) ]The law of defamation stands apart: but it is no exception to the proposition in the text, for it is not a law requiring care and caution in greater or less degree, but a law of absolute responsibility qualified by absolute exceptions; and where malice has to be proved, the grossest negligence is only evidence of malice.

[(g) ]Cp. Sanders v. Stuart (1876) 1 C. P. D. 326, 45 L. J. C. P. 682.

[(h) ]4 Q. B. Div. 81.

[(i) ]5 C. P. Div. 157, 49 L. J. C. P. 361.

[(k) ]3 C. P. Div. 1, 47 L. J. C. P. 1.

[(l) ]6 Q. B. Div. 333, 50 L. J. Q. B. 305.

[(m) ]See the principle explained, and worked out in relation to complicated facts, in Pease v. Gloahec, L. R. 1 P. C. 219, 35 L. J. P. C. 66.

[(n) ]Cundy v. Lindsay, 3 App. Ca. 459, 47 L. J. Q. B. 481.

[(o) ]Hardman v. Booth, 1 H. & C. 803, 32 L. J. Ex. 105.

[(p) ]It will be remembered that the essence of trespass de bonis asportatis is depriving the true owner of possession: a thief has possession in law, though a wrongful possession, and the lawful possessor of goods cannot at common law steal them, except in the cases of “breaking bulk” and the like, where it is held that the fraudulent dealing determines the bailment.

[(o) ]See passim in the opinions delivered in Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

[(p) ]Brett M. R., The Notting Hill (1884) 9 P. Div. 104, 113, 53 L. J. P. 56.

[(q) ]9 Ex. 341, 23 L. J. Ex. 179 (1854).

[(r) ]Horne v. Midland R. Co. (1873) Ex. Ch., L. R. 8 C. P. 131, 43 L. J. C. P. 59.

[(s) ]Hydraulic Engineering Co. v. McHaffie (1878) 4 Q. B. Div. 670, per Bramwell L. J. at p. 674; Brett and Cotton L.JJ. are no less explicit. The time to be looked to is that of entering into the contract: ib. In McMahon v. Field (1881) 7 Q. B. Div. 591, 50 L. J. Q. B. 552, the supposed necessity of a special undertaking is not put forward at all. Mr. J. D. Mayne, though he still (5th ed. 1894) holds by Horne v. Midland R. Co., very pertinently asks where is the consideration for such an undertaking.

[(t) ]As to the treatment of consequential damage where a false statement is made which may be treated either as a deceit or as a broken warranty, see Smith v. Green (1875) 1 C. P. D. 92, 45 L. J. C. P. 28.

[(u) ]According to Alderson B. in Hadley v. Baxendale, it is the knowledge of “special circumstances under which the contract was actually made” that has to be looked to, i. e. the probability of the consequence is only matter of inference.

[(x) ]See Berry v. Da Costa (1866) L. R. 1 C. P. 331, 35 L. J. C. P. 191.

[(y) ]Le Blanc J. in Chamberlain v. Williamson (1814) 2 M. & S. 408, 414, 15 R. R. 295.

[(z) ]Finlay v. Chirney (1888) 20 Q. B. Div. 494, 57 L. J. Q. B. 247.

[(a) ]Chamberlain v. Williamson, 2 M. & S. at p. 115, 15 R. R. at p. 297.

[(b) ]Chamberlain v. Williamson, last note; Willes J. in Alton v. Midland R. Co. 19 C. B. N. S. at p. 242, 34 L. J. C. P. at p. 298; cp. Beckham v. Drake (1841) 8 M. & W. at p. 854; 1 Wms. Saund. 242; and see more in Williams on Executors, pt. 2, bk. 3, ch. 1, § 1 (9th ed. p. 695, sqq.); and Raymond v. Fitch (1835) 2 C. M. & R. 588.