Iii.—: Causes of action dependent on collateral contract. What did Lumley v. Gye decide? Causes of Action in Tort depend

(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) 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. 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), and by the Court of Appeal in Bowen v. Hall (1881), 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. 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. 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.

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. But this opinion is now disapproved.

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, 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 and more lately by the Supreme Court of the United States 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”.

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.

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. On the other hand, a breach of contract, as such, will generally not be a cause of action for a stranger. 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.

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. 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, 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 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. 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.

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 is reconcilable, but only just reconcilable, with Foulkes’s case, and Dickson v. Reuter’s Telegram Co., though not directly opposed to Bowen v. Hall, 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. 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, or the agent of that person. 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 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. There is therefore no complication of contract and tort in these cases, but only—if we may so call it—a dramatic juxtaposition.