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 The rule that if there is a specific contract, the more general duty is superseded by it, does not prevent the general duty from being relied on where there is no contract at all (o).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).

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

(0) 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) Jenninys v. Rundall (1799), 8 T. R. 335, 4 R. R. 680; p. 50, above.

(q) Chinery v. Viall (1860), 5 H. & N. 288, 29 L. J. Ex. 180; p. 445, above.

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, 1867, for certain purposes of costs, as being "founded on contract" or "founded on tort" (s).

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

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

(8) 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. 652, above.

under the special rule attributed to the "custom of the realm" (t).

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.

(t) 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 decis

ion 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.

II. Concurrent Causes of Action.

Concurrent

consider

causes of action. Herein we have to

(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 be

tween 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

(u) 5 E. & B. 860, 25 L. J. Q. B. 129 (1856), see p. 373 above, and Principles of Contract, 5th 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.

Supporting the text, vide

Cases of tort regardless of contract. Frink v. Potter, 17 Ill. 406; Havens v. Hartford etc. R. Co., 28 Conn. 69; Hammond v. N. E. R. Co., 6 S. C. 130; Heim v. McCaughan, 32 Miss. 17; New Orleans, etc. R. Co. v. Hurst, 36 Miss. 660; Cregin v. Brooklyn & C. R. Co., 75 N. Y. 192; Ames v. Union R. Co., 117 Mass. 541; Pennsylvania Co. v. Hoagland, 78 Ind. 203. Railroads are certainly liable in an action on contract for damages resulting to patrons from errors in their published time tables. Gordon v. Manchester, etc. R. Co., 52 N. H. 596; Sears v. Eastern R. Co., 14 Allen, 433; Weed v. Panama R. Co., 17 N. Y.

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 (v), 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) (w), or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely (x). 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 (y). 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 (z). 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 (a), the company has accepted the servant

(v) L. R. 2 Q. B. 442 (1867). (w) Per Lush J. at p. 447.

(x) 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.

(y) See Chap. XII. p. 598 above.

(z) See Moffatt v. Bateman (1869), L. R. 3 P. C. 115.

(a) Suppose the master by accident had left his money at home, and the servant had paid both fares out of his