, 26

and thereupon it became and was the duty of the defendants to use due and proper care and diligence in and about the carriage and conveyance of the said Charles T. Baxter, so being such servant and traveller of the plaintiffs as aforesaid, upon the said railway on the said journey; yet the defendants did not safely or securely carry the said Charles T. Baxter, so being such servant of the plaintiffs as aforesaid, upon the said railway on the said journey, and did not use due and proper care and diligence in and about the carriage and conveyance of the said Charles T. Baxter, so being such servant and traveller of the plaintiffs as aforesaid, and, by their servants, so negligently, unskilfully, carelessly, and improperly behaved and conducted themselves in that behalf, that the said Charles T. Baxter, so being such servant and traveller of the plaintiffs as aforesaid, was thereby, and by reason of the negligence, carelessness, unskilfulness, and improper conduct of the defendants and their servants, wounded and injured, and became and was sick, disabled, and unable to attend to the necessary business of the plaintiffs, about which he was employed at the ime of the injuries complained of, and so remained rom thence for a long time, to wit, for nineteen weeks, whereby the plaintiffs during all such time lost he services of the said Charles T. Baxter in their said usiness, and all benefits and advantages which would ave otherwise accrued to them from such services; and the said business of the plaintiffs, so carried on by the said Charles T. Baxter, suffered great loss and njury, and the plaintiffs were, by reason of the preaises, and by reason of the improper conduct of the defendants, otherwise injured and damnified. Plea, that the defendants contracted with the said Charles T. Baxter to carry him as such passenger as in he declaration mentioned, on the said journey, and they received him as in the declaration mentioned, under and by virtue of that contract; and that they did not contract with the plaintiffs to carry the said Charles T. Barter; and that the matter complained of in the declaration was not a breach of any contract between the defendants and the plaintiffs, but was a breach of the said contract between the defendants and the said Charles T. Baxter.

Cross demurrers to the declaration and to the plea. Keane, Q. C. (Graham with him), for the plaintiffs. -The defendants were liable. It was the duty of he defendants to carry safely. They are bound to o so by a common-law duty. Railway companies re common carriers, and liable in damages for not elivering safely. It will be said that the contract as not made with the plaintiffs, but with their ervant, and that the ticket was taken by the serant, but the duty to the plaintiffs is a commonw duty imposed on all carriers. The plaintiffs had property in their traveller, and in fact are severe sers. To support this action, no contract with the daintiffs is necessary.-[Willes, J.-There was a bailent out of which rose a contract quasi ex contractû]. a Ansell v. Waterhouse (6 Mau. & §. 385), Mr. Justice Holroyd says, "By ancient law, a common carrier is a the nature of a public officer, and the terms of a ontract with him are immaterial, provided they do ot vary his general responsibility." In Everard v. Topkins (2 Bulst. 332), Lord Coke puts the case of a naster sending his servant to pay money for him on penalty on a bond, and by the way a smith in shoeng pricks the horse, so that the money is not paid; and Lord Coke says, "This being the servant's horse, he hall have an action on the case for the special wrong or pricking of his horse, and the master also shall ave his action on the case for the special wrong which he hath sustained by the non-payment of his money ccasioned by this." The defendants have broken

their contract with the traveller, and are liable to an action at his suit; but the defendants are also liable to the plaintiffs on a breach of duty as common carriers. [They cited Hodges on Railways, 667, 3rd ed.; Everard v. Hopkins (2 Bulst. 332); Robert Marys case (9 Rep. 113); Hall v. Hollander (4 B. & Cr. 660); Gladwell v. Steggall (5 Bing. N. C. 733); Martinez v. Gerber (3 Man. & G. 88); Pippin v. Sheppard (11 Price, 400); Bretherton v. Wood (3 Bro. & B. 54); Gough v. Bryan (2 M. & W. 770); Collett v. London and North-western Railway Company (16 Q. B. 984); The Great Northern Railway Company v. Harrison (10 Ex. 376); Dixon v. Bell (5 Mau. & S. 198); Crouch v. London and North-western Railway Company (23 L. J., C. P., 73); Tattan v. Great Western Railway Company (29 L. J., Q. B., 184); Marshall v. York, Newcastle, and Berwick Railway Company (11 C. B. 655); Lumley v. Gye (2 El. & Bl. 216); Pozziv. Shipton (8 Ad. & El. 963); Coxon v. Great Western Railway Company (5 H. & Norm. 274); Blake v. Great Western Railway Company (7 H. & Norm 987); Carpue v. London, Brighton and Southcoast Railway Company (5 Q. B. 747); Com. Dig., tit. "Negligence"; 8 & 9 Vict. c. 20, ss. 86, 89; and Manley's Law of Master and Servant, 96, 2nd ed.]

Bovill, Q. C. (O'Malley, Q. C., and Douglas Brown, with him), for the defendants.-No precedent has been given by the plaintiffs in support of their claim to maintain this action. One case only has been cited as bearing upon the case, and that is Everard v. Hopkins (2 Bulst. 332). But although it was an action on the case, by a master against a surgeon for negligence in curing his servant, per quod servitium suum amisit, there was a contract between the plaintiff and defendant on the face of the record; the defendant in his plea stating, " true, it is, he had agreed with the plaintiff for five marks," &c. The instance put in that case of a smith who pricked a horse ridden by a servant engaged on his master's errand, by reason whereof certain money was not paid, and the master suffered loss, was not a decision of the Court. There is, then, no authority for the view contended for; and the question is, whether it can be maintained on any principle of law? The right does not exist at common law; and this may be inferred from the statutes which have been passed to meet analogous cases; as, for instance, Lord Campbell's Act. A liability was imposed only where there is a privity or duty between the parties. And here there was no privity between the plaintiffs and the defendants, and no duty cast upon the defendants in reference to the plaintiffs. The privity is between the servant and the company, and the duty from them to him, the person carried. [Willes, J.-Actions against carriers are often in contract and not in tort.] It may be shewn that all these cases are founded on contract. A servant, for instance, may take a ticket for a journey, on the terms, that he shall be at all risks, and an injury occurs to him, can it be said that the master can make any claim on the railway company, or that there is any liability from the company to the master? The answer must be in the negative, because there is no privity between them. Assuming a right of action to exist, it is material to consider how the damages could be estimated. If there is no privity between parties, how can it be said that they had damages in their contemplation at all? If damages were not in their contemplation, then there is no guide whereby to estimate the amount. In the case of Langridge v. Levy (2 M. & W. 519, 530), Parke, B., expressly states that the Court do not rest their decision on the ground, "that whenever a duty is imposed on a person by contract or otherwise, and that duty is violated, any one who is injured by a violation of it may have a remedy against a wrongdoer." The ground of the decision was fraud, and

damage the result of that fraud-not from an act remote and consequential, but one contemplated by the defendant at the time. Contract is the real ground of the claim where the party injured is the plaintiff; and thus a third person has no right to intervene. In Winterbottom v. Wright (10 M. & W. 109, 115), Abinger, C. B., observes as follows:-" Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue. Where a party becomes responsible to the public, by undertaking a public duty, he is liable, though the injury may have arisen from the negligence of his servant or agent. . . . There is also a class of cases, in which the law permits a contract to be turned into a tort; but unless there has been some public duty undertaken, or public nuisance committed, they are all cases which might have been maintained upon the contract. . . . By permitting this action we should be working this injustice, that after the defendant had done everything to the satisfaction of his employer, and after all matters between them had been adjusted, and all accounts settled on the footing of their contract, we should subject them to be ripped open by an action of tort being brought against him." [He referred also to Tollit v. Sherstone (5 M. & W. 289, Maule, J.)]

Keane, Q. C., in reply.-No arrangement between a servant and a third person, to which the master is no party, can deprive the master of his rights. The duty imposed upon carriers is not a duty arising out of contract merely; it is a duty imposed by the custom of the realm. Winterbottom v. Wright is not applicable. (Addison on Torts, 395, 2nd ed.)

ERLE, C. J.-This was an action by the plaintiffs against the Midland Railway Company, the declaration alleging that the defendants had been guilty of negligence in carrying a servant of the plaintiff, and that by reason of this negligence the plaintiff had lost his servant's services. On the face of the declaration it appears that the relation between the defendants and Baxter arose out of contract, for the allegation is, that they were to carry him for hire and reward. To this declaration there was a demurrer, which raises the point on which my judgment turns; and a plea which states that the defendants contracted with Baxter to carry him, and that having received him under that contract, they committed a breach of it. It is admitted there that damage has resulted to Baxter on their contract with him, and for this damage they have made compensation. Now, I take the law to be clear, that where a master loses his servant's services by an act ex delicto, the master has a right of action for the loss he has sustained. But in all cases where the master has recovered, the injury has arisen from a wrong; and there is no instance where damages have been given on breach of contract. I do not enter into the origin of the master's right to recover for wrongs committed upon his servant, nor stay to inquire how far it depends upon servants being originally the subject of property, as stated in Mr. Smith's book. But looking at all the authorities, there is not one in which the master recovered fora consequential damage in a contract between the servant and the defendant. In the cases cited by the plaintiffs' counsel there was a direct injury to the servant-a clear wrong was committed; but in the present, the action is founded on a breach of contract between the servant and railway company.

I am well aware that there are many causes of action in which a party may recover in form, both ex contractû and ex delicto. In either case there are certain advantages in the procedure. But where the substance of the cause of action is in question, the line between the two is maintained. The distinction

is referred to in 1 Wms. Saund. 291, (g), “ A distinction has been taken between actions of assumpsit and actions of tort; in the former case, if one only of se veral persons who ought to join bring the action, the defendant may take advantage of it on non-assump sit, but in the latter he must plead it in abatement." And, again, at p. 291, "The same rule applies where the matter is founded upon matter quasi ex contractû; and, therefore, if an action was brought against one only of several persons upon a matter founded in contract, though the form of the action be case for malfeasance or nonfeasance, and the plea not guilty, yet the defendant must plead it in abate ment."

In Green v. Greenbank (2 Marsh. 485), a case of breach of warranty, it was held, that as the substantial ground of action rested on promises, the plaintiff could not by changing the form of action, and declaring in tort render a person liable who would not have been liable on his promise; and so infancy was allowed to be a good plea in bar. And in Roll. Ab., Action on the Case, "Si un hostery vient al un infant, et il ceo con serve, et les guests sont robb, uncore nul action gist vers l'infant." This being the current of the authe rities, there is great weight in the observations of the judges in Langridge v. Levi and Winterbottom v. Wright, for though the cases themselves are not relevant, theng is much force in the observation respecting the limit to which liability may be extended as a general rule; the liability exists only where there is a relation between the parties; the exception arises where sta tutes have intervened. Contracts between parties are generally for themselves, and no such thing is known in our law as allowing a person to intervene who has no privity. I think, therefore, that there is no liability cast upon the defendants for the consequent damage to the plaintiffs.

I am aware that in cases ex delicto there are certain rules as to costs which may be said to affect this question; but they stand on procedure alone. They do not contravene the general law of contract, and on contract the present case is founded. I am of opinion. therefore, that the plaintiff is not entitled to maintain this action.

for

WILLES, J.-I am of the same opinion. It is ad mitted by the defendants, that a master may sue the loss of his servant's services, when caused by i pure wrong. On the other hand, no such action ha been maintained where the injury was not a wry arising from a breach of duty to all the Queen's subjects, but a wrong arising out of a breach of contrac with the servants. The question for us is, whethe the present case falls within the principle of exist decisions; for if not, and we hold this action mac tainable, we should be legislating, and that most m chievously, instead of declaring what the law is. Ta right violated in this case is a right on the part of t servant to be carried safely; it is a stipulation ma by the servant with the railway company, and it a sought to give the master a right of action in res of this, when under the contract he has no whatever. But it is said that the action is fonds on a wrong. This proposition must be answered by contradiction; the law does not deal with cases of kind, as founded on wrong. It gives the party 2 election to say in what form he will proceed. A this puts in a striking light what was formerly Sal A servant may bring his action against the comp for breach of contract, and so determine the elect given by the law. The master, however, it is 50 may bring his action in tort, and thus he would dete mine the election; this reduces the matter to an 1surdity.

This subject is purely technical, and if traced to

Aug. 26, 1865.

origin, there would be found numerous instances of a similar process; and many cases, in which what are called fictions, give a more convenient and complete remedy to the party injured. The doctrine of implied promise is in point. Where there has been a special contract, and work done, the party who has done the work may, under certain circumstances, sue either on the express promise or an implied promise to pay for the work actually done. That averment cannot be traversed. And so in the case of a man selling the goods of another, and receiving the proceeds, the owner of the goods has his election whether he will proceed in form x delicto, for the conversion of the goods, or sue on I supposed promise to pay on request.

But to come to the present case. The duty here is uperadded by law on the contract; it is a duty to arry with reasonable safety for hire and reward. The law, however, says to the party injured, "You ave your election to proceed on the contract, for the ight arises out of the contract." There is an authoity to which I should wish to refer on the question of he right of the executors to sue (Knights v. Quarles, Br. & B. 102; 1 Wms. Exors. 112); there the plainiff, as administrator, declared, in assumpsit, that the efendant, for certain fees to be paid him by the inestate, undertook, as attorney, to investigate and see hat a title about to be conveyed to the intestate was good one; and the breach was, that the attorney mitted to do so, and thereby the personal estate of he intestate was damaged. It was contended, on bealf of the defendant, that the action, though in form x contractû, was in substance ex delicto; but the burt held, that, there being an express promise, with breach in the lifetime of the intestate, and an inry to his personal estate, the action lay. The subtance of the action was, therefore, considered to be ontract.

It may be observed further, that this is a contract for the reasonably safe conveyance of a passenger. "Reasonably," I say, for there is a difference between the ontract by a carrier to carry passengers for hire, ad one to carry goods for hire; but I do not found ay judgment on that distinction. This is an action ounded on a contract, to which the plaintiff was no arty. No authority is cited shewing that such an ction can be maintained, and I am not prepared to troduce one.

BYLES, J.-I agree with the principles laid down by y Lord and my Brother Willes, and will confine myelf to one or two observations only. It is plain, on he declaration, and on the plea, which are demurred 0, that there was no contract, express or implied, beween the plaintiff and defendants, but only between he servant and the railway company. In most cases f this kind the plaintiff has an election as to the form a which he shall sue, but he must not, by his election, xtend the right to strangers, as has been shewn by ny Brother Willes. The law is clear, and it would ead to alarming consequences if it were otherwise hat no man can bring an action for breach of duty, sut for a breach of duty to himself. I remember, in Winterbottom v. Wright, a bad precedent being cited from Wentworth's Pleadings. It was the case of an attorney, who had been instructed to prepare a will, and having failed to attend at the proper time, the person who sent for him died intestate. An action was brought against the attorney by the intended devisees, the declaration being, in form, for negligence, in not having the will ready to be executed. The duty, however, was to the deceased, and not to the devisees or legatees. If that action were maintainable, the heirs of the devisees, their legatees, and others. without end, could bring actions in similar manner, So in the case of the anchor,,put by Mr. Bovill; the

maker of a defective anchor may be liable to the seller; he would be thus liable to the shipowner also; and the maker of the iron would even be liable for an injury sustained by a passenger on board. The moment we depart from the principle, that no action can be maintained on a contract by one who is not a party to it, we make room for the most dangerous innovations.

I have asked for authorities contra, and Everard v. Hopkins has been cited, but it turns out that in that case there was a contract with the master. The case of Winterbottom v. Wright is a distinct authority the other way. This is one of the most important cases that have been brought before this Court for some years, and it is right that we should express a decided opinion upon it.

SMITH, J.-I did not hear the whole of the arguments in this case. I agree, however, in holding, that to decide for the plaintiff would be a violation of a well-known principle of law, that in an action found on contract, the contracting parties alone shall be liable.-Judgment for defendants.

An invoice worded to sell goods at "21. 10s. per cent. monthly," may be explained by parol evidence, shewing the meaning of the words by the custom of the trade. This was an action for goods sold and delivered by Debricks, whose assignee the plaintiff is, to the defendant, and was tried at the Hertford Spring Assizes, before Pollock, C. B.

and the defence raised was, that the time of credit The pleadings only put in issue the fact of the debt, had not not expired.

The plaintiff proved that the goods, consisting of lowing invoice:drapery, &c., were sold to the defendant, with the fol

"London, Sept., 1864.

34, Bread-street, Cannon-street West, E.C. Messrs. Horsley & Co.,

Bought of W. Debricks, Manufacturer.

Terms, 2/ monthly.

7035 25 6820 201 7154 15 7146 121

Planen. Buckholz. Aunaberg.

Schneeberg. Crefield. Barmen.

The defendant's counsel then proposed to give evidence to shew that, under this invoice, the defendant was at liberty to draw a bill at the expiration of the first two months, or to leave it an open account, and have the option of paying at one-third of 21. 10s. per cent. discount, and at the expiration of the third month for net cash. He was about to call persons in the trade to prove this; but the learned judge refused to admit this evidence, as being in contradiction of the writing.

The jury then found a verdict for the plaintiff. Joyce now moved for a new trial, on the ground