There is, indeed, a large class of cases known as implied contracts, where the law recognises a duty or obligation sometimes arising out of a preceding contract, and sometimes arising independently of any contract. In all those cases where the duty or obligation arises out of a precedent contract, the violation of the duty is in truth a breach of contract; but, as these cases present some features in common with that other branch of implied contracts which embraces duties independent of any contract, it was usual under the old mode of pleading to state in both these classes the facts out of which the duty or obligation arose, with or without an allegation that such duty arose therefrom. This mode of pleading being similar to that adopted in the case of an ordinary tort and different from that adopted in the case of an express promise, where the promise and a breach of that promise were alleged, these cases acquired the name of torts founded upon contract. In the form of pleading they resembled an ordinary tort; but in their essence they were breaches of contract and not torts.
The difference between torts arising from contracts and torts independent of contract is, that where a wrongful act is of the latter description the plaintiffs suit is styled an action ex delicto, and where of the former class, it is styled an action ex contractu, in which case it is necessary that there should be privity between the plaintiff and the defendant, for a man cannot sue upon a contract when there is no privity between himself and the defendant. Privity between the parties is absolutely necessary to support an action ex contractu, whereas in the case of an action ex delicto the right of action has nothing to do with privity between the parties, but it exists simply because a right has been withheld or violated.1)
Where there is a privity of contract between the plaintiff and the defendant, there are two classes of cases in which the remedy of the plaintiff for damage from a breach of duty arising out of the contract, is properly an action in tort, viz.,
It is obvious that such an injury is a tort, and is very distinguishable from a mere breach of contract
The class of injuries, which lie on the borderland, as it were, between contract and tort, and for which an action ex contractu or ex delicto, may generally be brought at the pleasure of the party injured is divided into three divisions by Pollock as follows.
Although tort in general differs essentially from contract as the foundation of an action, it not unfrequently happens that a particular transaction admits of being regarded from two different points of view, so that when contemplated from one of these it presents all the characteristics of a good cause of action ex contractu; and, when, regarded from the other, it offers to the pleader's eye :sufficient materials whereupon to found an action ex delicto.2) Thus, carriers warrant the transportation and delivery of goods entrusted to them; solicitors, surgeons, and engineers, undertake to discharge their duty with a reasonable amount of skill and with integrity; and for any neglect or lack of skill by individuals belonging to one of these professions, a party who has been injured thereby may maintain an action either in tort for the wrong done or in contract at his election. In short, wherever there is a contract and something to be done in the course of the employment which is the subject of that contract; if there is a breach of duty in the course of that employment, the plaintiff may recover either in tort or in contract3); that is to say, where there is an employment, which employment itself creates a duty, an action will lie for a breach of that duty, although it may consist in doing something contrary to an agreement made in the course of such employment by the party upon whom the duty is cast.4)
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 the alternative forms. Where there is an undertaking without a contract, there is a duty incident to the undertaking.5), 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.6) Even where there is a contract, the more general duty does not cease to exist, but it is said that the duty is “founded on contract”. The contract 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 (Pollock, 515),
Now that the 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, whether there was a duty antecedent to the contract or not. But injury which would have been a tort, as breach of a duty existing at Common law, if there had not been any contract, is still a tort.7)
Herein we have to consider:
1) 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.
Where a railway company advertised, by their time tables, a through train from London to Hull, after they knew that the connecting train (belonging to another company) had been discontinued, and a passenger, having made his arrangements on the faith of these time tables, travelled by an early train from London to Peterborough, one of the defendant company's stations, and after transacting his business there, asked for a ticket from Peterborough to Hull by the evening train, so advertised, and found there was no such train, and brought his action for damages, it was held that he was entitled to recover, as for a false representation.8) A servant whose fare has been paid by his master can sue for loss of luggage; the principle being that the duty thrown upon the carrier by receiving the passenger and his luggage to be carried for reward, though arising out of a contract, is independent of the question by whom the reward is paid. The question turned upon the inquiry whether it was necessary to show a contract between the plaintiff and the railway company; and it was held that an action of this sort was in substance not an action of contract but an action of tort against the company as carriers, and the allegation of contract was altogether unnecessary.9) The plaintiffs mother, carrying in her arms the plaintiff, a child over three years old, and consequently liable to pay half-fare, toot a ticket for herself but not for the plaintiff. By the negligence of defendants, an accident occurred to the train, and the plaintiff was injured. When the plaintiffs mother took her ticket no question was asked as to the plaintiff's age by the defendants' servants, and there was no intention on the part of the mother to defraud the defendants. It was held that the plaintiff was entitled to recover for the injury he had sustained. Cockburn, C. J., and Shee and Lush, JJ., held this on the ground that there was an entire contract to carry both mother and child, which operated in favour of each, but Blackburn, J., on the ground that the right which a passenger by railway had to be carried safely, did not depend on his having made a contract, but that the fact of his being a passenger cast a duty on the company to carry him safely. If there has been fraud on the part of the plaintiff, or if the plaintiff had been taken into the train without the defendants' authority, no such duty would arise. But here the child, through an honest mistake on the mother's part, was taken into the train by the railway company, and was received as a passenger by their servants with their authority.10) Thus, unless there be an intention in the passenger to defraud, the mere non-payment of fare will not exempt the railway company from liability for negligence.
2) 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. There may be two causes of action with a common plaintiff.
Plaintiff, a passenger, was hurt on alighting at a station owing to the carriages being unsuited to the platform, the station and the platform belonging to the S. W. Railway by whose clerk the plaintiff's return ticket was issued; but he returned by the train belonging to the defendant company, who had running powers on the S. W. line. It was held that the defendant company was liable solely on the ground that it actually received plaintiff as a passenger, and thereby undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey. In this case, the following propositions were laid down
If the company issuing the ticket has been guilty of the negligence which caused the accident, the fact that the accident occurred upon the line of another company will not make the latter company responsible to the injured party.13) In the case of a through-ticket a company who has not issued the ticket, but who has received the passenger's luggage into their van, are responsible for the loss of it.14) Where a servant took a ticket of L. & T. Ry. Co. and he travelled in a train drawn by an engine of the S. E. Ry. Co., and the latter company also provided the signalman and so on, and owing to their negligence a collision happened, and he was injured, it was held that the master could sue the latter company. For although he could not sue the former company, because, qua them, the wrong was one arising out of contract in respect of which the servant alone could sue, yet the negligence of the latter company did not arise out of any contract. They were entire strangers to the contract, and their tort was a tort pure and simple and consequently the master could sue in respect of it.15)
3) Cases where A can sue B for a tort though B's misfeasance may also be a breach of a contract made not with A but with M. 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.
Where a railway company was bound by a statute to carry any officer of the Post Office whom the Post-Master General should elect, and for which service the company was to be remunerated by the Post-Master General, and the plaintiff, an officer so selected, was injured by the negligence of the company; it was held that, though there was no contract between the plaintiff and the company, he was entitled to bring an action for negligence. So an officer, carried under contract with the Government of India, may sue for an injury done to his property through the railway company's negligence whilst the goods were in their custody, though he could not sue the railway company for the non-performance of their duties as carriers.16) The plaintiff's servant took a ticket, which he had paid for with the plaintiff's money, for a journey on the defendants' line. He took with him a portmanteau in which was his livery which belonged to the plaintiff. At the station the portmanteau was accepted by the company as his personal luggage; they not being aware that it contained goods in which the plaintiff had an outstanding right; and was handed over to one of the company's servants, who negligently overturned it in front of a train, so that it was run over by the train and the goods in it were destroyed. In an action by the plaintiff against the defendants for damages for injury to her property caused by the negligence of the defendants' servants, it was held that as the goods were lawfully with the defendants' license on their premises, they were answerable for any injury caused to the goods by the misfeasance of their servants, not on the ground of a breach of any contract between the plaintiff and the defendants, for there was none such, but as a tort committed by the defendants' servants for which the defendants were responsible.17)
In Alton's case, a servant took a ticket and travelled on a railway, and wag injured on his journey through the negligence of the railway company. The master brought an action against the company for the loss of his servant's services through their negligence; but there was no contract between the railway company and the master. Held, that inasmuch as the servant was injured, not by a simple wrong, but by a wrong arising out of a breach of duty imposed on the railway company by their contract with the servant, the action was founded on the contract, and would not lie.18) This case has been severely criticised as being bad law. It is inconsistent with the principles laid down in Marshall v. Y. N. & B. Ry., and Foulkes v. Metro. Dis. Ry.
The father of the plaintiff bought a gun of the defendant for the use of himself and his sons, and the defendant warranted the gun to be a good and safe gun. The gun burst while the plaintiff was using it and injured his hand. Held, that there had been fraud and damage, the result of that fraud, from an act contemplated by the defendant at the time of the sale, and that the action wag maintainable.19) Where the defendant sold a bottle of hair wash to a husband to be used by his wife, and the latter was injured in using the same; it was held that the duty of the vendor to use ordinary care in compounding the wash extended to the person for whose use the vendor knew it was purchased.20) A built a coach for the Post-Master General, B horsed it and hired C as a coachman to drive it. The coach broke down from a defect in the building. Held, that C could not sue A.21) In this case neither was it alleged that the defendant knew the coach to be unsafe, nor was any had faith or negligence proved on his part, otherwise the result would have been different.
The plaintiff sued for injuries resulting from the fall of a chandelier in a public house. The declaration alleged that defendant wrongfully, negligently and improperly, hung a chandelier in the public house, knowing that the plaintiff and others were likely to be therein, and under the chandelier, and that the chandelier, unless properly hung, was likely to fall upon and injure them; and that the plaintiff being lawfully in the public house, the chandelier fell upon and injured him. It was held that notwithstanding the form of the declaration the case fell within the principle of Winterbottom v. Wright. It was conceded, however, that if there had been an allegation that the defendant knew that the chandelier was improperly: hung, the action might have been maintained.22) So, if a surgeon treat a child without skill, he will be liable to the child, even though the parent contracted with the surgeon.23) Where mortgagees lent money, by instalments to a builder, on the faith of certificates negligently granted by the defendant, who was a surveyor appointed not by the mortgagees, but by the builder's vendor, and the certificates were inaccurate and the mortgagees thereby suffered loss for which they claimed compensation from the defendant; it was held that as there was no contractual relation between them, the defendant owed no duty to the plaintiffs and the action could not be maintained. It was urged that a certificate carelessly issued was as dangerous as an ill-made gun, or a poisonous hair-wash, and that on that ground the defendant was liable, but the Court would not admit the analogy. If the certificate had been fraudulent, i.e., issued with intent to deceive the plaintiff, then independent of any contractual relation, the defendant would have been liable.24)
Where an action for negligence was brought against the company by a person to whom a telegram had been erroneously transmitted, it was held that the action did not lie on the ground that the obligation of a telegraph company to use the due care and skill in the transmission of message arose entirely out of contract; and that the defendant's charter had not affected the relation of the company to the sender or the receiver of a despatch, and that, therefore, the contract having been made with the sender of the message, the plaintiff had no right of action.25) In Dickson v. Renter's Telegraph Co. the above decision was upheld, and it was said that no action would lie against a telegraph company, at the suit of the receiver, for the misdelivery of a telegram, unless either there was a contract between him and the company, or (possibly) fraud on their part in the transmission of it. Where the defendant, whose business it was to collect and forward telegrams, had negligently omitted to forward one which was in cipher, and so unintelligible to him; the sender, it was held, could recover nominal damages and not a loss of commission which was consequent upon the omission.26) The telegraph companies in general limit their responsibility by special conditions, which by some of their incorporating Acts must be reasonable.
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 on that telegram. Sir Frederick Pollock is of opinion that the American decisions are on principle correct.