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express agreement, although he knew for whom the goods
were intended, liable to an action for breach of contract at
the suit of the principal.

Held also, an agent for a foreign principal has no
authority to pledge the credit of his principal.



A Person who contracts as an Agent without Authority to do so
is liable on an implied Warranty of Authority for Injury
sustained by a Third Party acting upon it, even though he
honestly believes he has Authority.

COLLEN v. WEIGHT. [1857]
(27 L. J. Q. B. 215 ; 8 El. & Bl. 647 ; 4 Jur. (N. S.) 357 ; 6 W. E.

123.)

Wright, professing to act as the agent of a Mr. Gardner,
entered into an agreement for a lease of a farm from Gardner
to the plaintiff. The plaintiff was not aware that the defendant
had no authority from Gardner, and he proceeded to considerable



AGENCY. 139

xpense in preparing the farm for cultivation. Mr. Gardner
refused to recognise the lease, whereupon the plaintiff, relying
upon Wright's statement, brought an action against Gardner
for specific performance. This action failed, as it was proved
that Wright had no authority to grant the lease on behalf of
Gardner. Wright having died, the plaintiff brought this action
against his executors.

Held, that the plaintiff was entitled to damages for
or each of an implied warranty of authority, and that he
was entitled to the cost of the Chancery suit and other
expenses to which he had been put. Where a person in-
duces others to contract with him as the agent of a third
party by an unqualified assertion of his being authorized to
act as such agent, he is answerable to the person toho so con-
tracts for any damages he sustains by means of the assertion
of the authority being untrue, even though the professed
agent honestly thinks that he has authority.



Undisclosed Principal is liable on a Contract entered into by his
Agent even though the other Party believed at the time of
entering into the Contract that the Agent was the Principal.
Where a Seller, knowing who the Principal is, yet debits the
Agent, he cannot recover from the Principal.

DAVENPOKT v. THOMPSON. [1829]
(7 L.J. K. B. (0. S.) 134; 9B. & C. 78; 4M. & Ey. 110.)

The defendant employed one Thomas M'Kune as his agent
in Liverpool. M'Kune acted in the same capacity for several
other persons. One day M'Kune received a letter from the
defendant instructing him to procure for him certain goods.
M'Kune accordingly went to the plaintiffs and told them he had
received an order from one of his clients, whose name he did



140 CONTRACT.

not mention. The plaintiffs supplied the goods, and debited
M'Kune with the cost. M'Kune having failed, the plaintiffs
brought this action against the defendant, who refused to pay
on the ground that, although the plaintiffs knew the buyer
to be an agent, they had elected to give credit to the agent, and
could not recover from the undisclosed principal.

Held, that the plaintiffs were entitled to recover, for where
the seller knows that the buyer is an agent, but does not
know the name of his principal, he may afterwards, on dis-
covering who the principal is, compel payment from the
principal, unless payment has been made by him to the
agent in the meanwhile.

Held also, if the seller, knowing who the principal is, yet
debits the agent as the person to whom he gives credit, he
cannot afterwards resort to the principal, although the latter
may not have paid the agent.

Held further, v)here a person sells goods to another, not
knowing at the time that the buyer is an agent, the seller,
upon afterwards discovering the principal, may resort to him
for payment, although lie had debited the agent ; and he
may recover against the principal, unless the latter has in
I he meantime paid the agent.



Agent's Knowledge is Knowledge of the Principal.

BAWDEN v. LONDON, EDINBURGH AND GLASGOW
ASSURANCE COMPANY, Ltd. [1892]

(61 L. J. (I B. 792 ; (1892) 2 Q. B. 534 ; 57 J. P. 116— C. A.)

The defendants insured Bawden for the sum of 500/. against
permanent total disablement, and for the sum of '250/. against
permanent partial disablement. " Permanent total disable-
ment " was defined to mean (inter alia) " the complete and



AGENCY. 141

irrecoverable loss of sight in both eyes," and "permanent
partial disablement " " the complete and irrecoverable loss of
sight in one eye." The assured being illiterate, the proposal
form had been filled up by an agent of the defendants. The
form stated that the assured had no physical infirmity, although
he had in fact entirely lost the sight of one eye. The agent
was aware of this circumstance, but did not inform the
defendants of it. The assured having met with an accident to
his second eye, resulting iu his losing the sight of it, shortly
afterwards died, and his administratrix brought an action
against the defendants to recover 500/. for permanent total
disablement.

Held, that the knowledge of the agent that the assured
had only one eye at the date of the proposal must be imputed
to the defendants, and that under the circumstances the
policy must be taken to be an assurance against total loss
of sight by an accident, and that the defendants were there-
fore liable as for a permanent total disablement.



Death of Principal determines Agency, and no one is liable on
a Contract entered into by a Person as Agent without
Knowledge of Death of Principal.

SMOUT v. ILBEEY. [1843]
(12 L. J. Ex. 357 ; 10 M. & W. 1.)

Mr. Ilbery having departed on a voyage to China many years
ago, when the facilities for communications were of the worst
description, it was not till a year after his departure that
Mrs. Ilbery learnt of his death, and that she had been a widow
for the preceding six months.

In her husband's absence she had not troubled to pay the
butcher's bill. The plaintiff who had supplied the meat was



142 CONTRACT.

clearly entitled to lie paid for the meat which had been supplied
while t lie husband was alive, for the wife had bound her
husband's estate by pledging his credit for necessaries, but as
regards the meat supplied after the death of the husband
the position was by no means clear. The butcher was, there-
fore, obliged to bring an action to recover the value of the meat
supplied to the widow from the date of her husband's death up
to the time she knew of it.

Held, the widow was not liable for goods supplied to her
after her husband's death, and before it was possible that
the knowledge of his death could have been communicated to
her, she having originally had full authority to contract,
and having done no wrong in representing that authority as
continuing.

Note. — This case is distinguishable from Kelner v. Baxter, supra,
p. 134, where persons who contracted on behalf of a non-existent prin-
cipal were held personally liable, inasmuch as in Smout v. Ilbery
the widow had once had authority to pledge her husband's credit.



A particular Agent may not act beyond the scope of his apparent
Authority. A Person is not liable for Work done without
his Request although he has had the Benefit thereof.

COX o. THE MIDLAND COUNTIES EA1LWAY CO. [1849]
(18 L. J. Ex. 65; 3 Ex. 268; 13 Jur. 65.)

An accident having taken place on the railway of the defen-
dant company, the station-master of Birmingham obtained the
services of the plaintiff, an eminent hospital surgeon. The
plaintiff having performed the operation successfully, brought
this action to recover his fee from the defendants.

Held, it is not incident to the employment of a guard or
the superintendent of a station of a railway to enter into a
contract with a surgeon to attend a passenger injured by an



AGENCY. 143

accident on such railway, and the railway company is not
therefore liable to the surgeon for services rendered to such

passenger, under a contract so entered into, even though the
company may have enjoyed the benefit oj the contract.



An Authority to do a thing, coupled with an Interest in the Donee
of the Authority to do it, is Irrevocable.

IN EE OAEMICHAEL. [1896]

(65 L. J. Ch. 902; (1896) 2 Ch. 643; 75 L. T. 45— C. A

In consideration of an agreed commission, Carmichael entered
into an underwriting contract with Phillips to subscribe for a
certain number of shares in a conrpany, and agreed that the
contract should be irrevocable, and by the same document
authorized Phillips to apply for shares in his name. Phillips
was a vendor of certain property to the company, and one of
the objects of the contract was to provide funds for the purchase
of the property. Carmichael repudiated the authority previous
to the allotment of shares. Phillips nevertheless applied for
the shares on Oarmichael's behalf, and they were duly allotted.

Held, that the authority was irrevocable, and that
Carmichael ivas not entitled to have his name removed from
the register of members of the company in respect of shares
allotted to him in pursuance of an application made in his
name by Phillips, for where an agreement is entered into on
a sufficient consideration whereby an authority is given
ivhich secures some benefit to the donee of the authority, such
an authority being coupled with an interest is irrevocable.



144 TORT.



T O R T.



THE NATURE OF A TORT.



Injuria sine damno constitutes a good cause of action.

ASHBY v. WHITE. [1703]
(1 Sm. L. C. 240 ; 2 Lord Eaym. 938.)

Ashby desired to vote at a certain election at Aylesbury, but
the defendant, who was the returning officer, rejected the vote.
The candidate Ashby wished to vote for proved successful, but
notwithstanding that, the plaintiff sued the defendant for
damages. The defendant contended that the plaintiff had
suffered no injury, and even if he had suffered any it was so
small that the maxim de minimis non curat lex applied.

Held, the plaintiff was entitled to succeed, for ubi jus ubi
remedium, and although no damage could be proved, net a
legal right having heen infringed, the plaintiff was entitled
to damages for breach thereof.



Damnum sine injuria constitutes no cause of action.

CHASEMOEE v. EICHAEDS. [1859]

(29 L. J. Ex. 81 ; 7 H L. Cas. 349; 5 Jur. (N. S.) 873 ;

7 W. E. 685.)

The plaintiff and the previous occupiers of his mill had been
in the habit for the past seven vears of utilising the Eiver



THE NATURE OF A TORT. 145

Wandle, which was about a mile from Croydon, for the purpose
of working the mill. In 1851 the Local Board of Health,
who were the owners of the adjacent land, dug a deep well on
their own land, and thereby diverted the underground waters,
not known to be formed into a stream flowing in a defined
channel, which otherwise would have percolated into the river,
and by pumping it up supplied the town of Croydon with
water. The plaintiff sued for damages caused by this diversion
of water from his mill.

Held, that the defendants were entitled to use the tvater
which percolated through their land in the manner the// had
done, and that although the plaintiff had suffered loss, /jet il
was a case of damnum sine injuria, and no action lay.

Note.— Win to underground stream is of a permanent character
and runs in a defined course, the above does not apply, and the
landowner is onlv entitled to reasonable user of the water.



A Landowner has a right to Appropriate Water Flowing under
his Land in undefined Channels, but not to Pollute it where
it is also the Source of Supply of Another.

BALLARD v. TOMLINSON. [1885]

(54 L. J. Ch. 454 ; 29 Ch. D. 115 ; 49 J. P. 692 ; 52 L. T. 942 ;
33 W. E. 533.)

The plaintiff and the defendant had each a well on his own
land, that of the plaintiff being the deeper of the two. The
defendant turned sewage into his own well which percolated
through the soil, and polluted the water which the plaintiff
pumped up from his well.

Held, that the plaintiff was entitled to an injunction
restraining the defendant from thus polluting the water
which formed the source of sup pig of the plaintiff s well.

J. L



14(i TORT.

Although there is before appropriation no property in
underground water flowing in no defined channel, but per-
colating the ear///, and forming the common source from
ivhich all una/ appropriate water by drawing il up through
their own laud, yet every owner of land under which such
water percolates has a right to appropriate il, and has a
right to have it in its natural condition; and no one is
entitled to pollute that common source by using his land in a
way which is not the exercise of a natural right incidental
hi the ownership of the laud.



No Action in Tort lies for Damage not occasioned by the Volun-
tary Act or Negligence of the Person causing the Injury.

THE RIVER WEAR COMMISSIONERS v. ADAMSON
AND OTHERS. [1877]

(47 L. J. Q. B. 193; 2 App. Gas. 743; 37 L. T. 543 ;
20 W. R. 217— II. L.)

The defendants were the owners of the S.S. Natalian, which
went ashore not far from the Sunderland Docks, which belonged
to the plaintiffs. The tide was low at the time, and as the tide
rose the flood and storm drifted the ship against the pier and
caused damage to the amount of 2,825/. 13s. This amount the
plaintiffs sought to recover.

Held, the injury not having been occasioned by the
voluntary act or the negligence of the defendants, or any
person on board of or connected with the ship, and not being
prevented by any human instrumentality, teas occasioned by
a vis major — namely, by the act of God in the violence of
the ten/pest. The defendants were therefore not liable for
the damage caused.



THE NATURE OF A TORT. 147

A Person bringing a Dangerous Thing on to his Premises is
Liable, if it escapes, for the Damage caused thereby, however
Careful he may have been.

EYLANDS v. FLETCHEK. [1866]
(37 L. J. Ex. 161 ; L. E. 3 H. L. 330; 19 L. T. 220.)

Messrs. Rylands caused a reservoir to be constructed on their
own land, and they employed a competent engineer to select
the site, and a competent constructor to construct the work.
During the construction the contractors' workmen came upon
some old vertical mine shafts of the existence of which no one
was previously aware. The men filled up these shafts with soil,
but, as it turned out, they did not exercise sufficient skill and
care in doing so, for when the reservoir came to be filled, the
water broke through the bottom and escaped down the shafts,
and flowing through some old abandoned coal workings, of the
existence of which no one was aware, which ran under lands
belonging to a third person, flooded a colliery of Fletcher.

Held, that Messrs. Rylands tvere liable for the damage
sustained by Fletcher, because, if a 'person brings or accumu-
lates on his land anything which, if it should escape, mag
cause damage to his neighbour, he does so at his peril, and
if it does escape and cause damage he is responsible, however
careful he mag have been, and whatever precautions he mag
have taken to prevent the damage.

Note. — The same principle was applied in Crowhurst v. The
Amcrsham Burial Board, 48 L. J. Ex. 109, where the plaintiff's
horse was poisoned by eating off a jew tree belonging to the
defendants, part of which projected over the plaintiff's promises.



l2



I |X TORT.



A Person who keeps an Animal ferae naturae does a wrongful
Act, and is liable for all the Consequences of that Act.
Directly a Domestic Animal becomes Dangerous, it falls within
the Class of Animals ferae naturae.

BAKEE v. SNELL. [1908]

(77 L. J. K. B. 1090 ; (1908) 2 K. B. 825 ; 99 L. T. 753 ;
24 T. L. E, 811— C. A.)

The defendant, a licensed victualler, was the owner of a dog
which he knew to be of a savage nature. He entrusted it to
his barman with instructions to let it out each morning and
bring it back and tie it up before the other servants came down.
On one occasion the barman brought the dog back while the
plaintiff and another barmaid were at breakfast, took it into the
kitchen, and said, "I bet the dog won't bite anyone. Gro it.
Bob," whereupon the dog bit the plaintiff.

Held, the law recognises two classes of animals — animals
ferre naturae and animals mansuetae naturae. Any
animal of the latter class may, if it is known to its owner to
be dangerous, fall within the former class, and anyone who
keeps a beast of that nature does a wrongful act, and is
liable fur the consequences of that act.

The /"/■son who keeps a savage dog with knowledge of its
nature is responsible for any injury it does to another person,
notwithstanding that it was mused by the intervening
voluntary act of a third person. The owner is hound to
keep such an animal secure at his peril.



THE NATURE OF A TORT. 149

A Person bringing a Dangerous Thing on to his Premises is not
Liable if it escapes by an Act of God.

NICHOLS v. MARSLAND. [1875]
(46 L. J. Ex. 174 ; 2 Ex. D. 1 ; 35 L. T. 725 ; 25 W. R. 173.)

A heavy fall of rain flooded the defendant's reservoir and
caused the embankments to give way, and the water rushed out
and did damage to the plaintiff's property ; the jury found that
there was no negligence in the construction or maintenance of
the reservoirs, and that the flood was so great that it could not
reasonably have been anticipated, although if it had been
anticipated, the damage might have been prevented.

Held, a person who for his own purposes brings on his
land, and collects and keeps there, anything likely, if it
escapes, to do mischief is prima facie liable, if it does
escape, for all damage which is the natural consequence of
Us escape ; but he can excuse himself by showing that the
escape ivas the consequence of vis major or the act of God,
without any default on his own part. The damages having
been due in this case to an act of God, without the default
of the defendant, the defendant was not liable.



A Tortfeasor is Liable for the Natural and Probable Result of his

Wrongful Act.

SCOTT v. SHEPHERD. [1773]
2 Win. 131. 894 ; 3 Wils. K. B. 403.)

The defendant threw a lighted squib on to the stall of one
Yates, who was selling gingerbread at a fair. A man who was
standing by, to prevent injury to himself, took up the lighted
squib from the stall and threw it across the market place, where
it fell on the stall of une Ryall, who, iu order to save his own



L50 TORT.

goods from injury, promptly threw it away. The squib falling
on the plaintiff, burst and put out one of his eyes. In an action
by the plaintiff for trespass and assault, it was —

Held, that the defendant was liable for the damage done,
for it was the direct and immediate result of an unlawful
act, and the intervention of involuntary agents who passed
on the squib in order to protect themselves did not relieve
the defendant from liability.



A Bad Motive will not render a Lawful Act Unlawful, nor a
Good Motive render an Unlawful Act a Lawful One.

MAYOE OF BEADFOK1.) v. PICKLES. [1895]

(64 L. J. Ch. 751) ; (1895; A. C. 587 ; 60 J. P. 3; 11 E. 286;
73 L. T. 353 : 14 W. E. 190.)

The defendant, as he lawfully might, drained his land of
water percolating through it by uncertain channels, and therel ty
drew off the supply of his neighbours' springs. His motive in
doing so was not to derive a benefit himself by so draining his
land, but to injure the plaintiff.

Held, the defendant was not liable, this not being a case
in which Ho' state of the mind of the person doing the act
ran affect the right to do it if it was a lawful act ; however
ill the motive might be, he had a right to do it. If if was
mi unlawful act, however good hi* motive might be, he
would have hod no right to do it.



THE NATURE OF A TOUT. 15]

Damages caused by a Tort must not be too remote, but must be

the immediate and proximate Effect of the Tort.

SHARP v. POWELL. [1872]

(41 L. J. C. P. 95 ; L. R. 7 C. P. 253 ; 26 L. T. 436 ; 20 W. R. 584.)

The defendant washed a van of his on the pait of the street
opposite his coach-house, and the water so used ran along the
gutter by the side of the street for about seventy feet down to
the corner of another street, where, meeting an obstruction, it
accumulated and expanded over part of the roadway instead of
going as usual into the sewer, and, there being a sharp frost at
the time, it shortly became frozen over. The cleaning of the
van in the street was an offence under the Metropolitan Police
Act (2 & 3 Vict. c. 47), s. 54, sub-s. 1, but the defendant was
not shown to have known of the obstruction at the comer, and
if he had cleaned the van in the coach-house the water would
also have gone into the same gutter in the street. The plain-
tiff's horse slipped on the frozen water and was so badly injured
that it had to be killed.

Held, that the defendant was not liable to the plain I ill'
for damage caused to his horse by slipping whilst passing
over the frozen water at the corner, as such damage was too
remote, and ivus not the immediate and proximate cause of
the defendants act.



OMISSION OF STATUTORY DUTY.



The omission of a Statutory Duty does not of itself constitute a
cause of Action where the Damage caused is not the one the
Statute sought to prevent.

GORRIS v. SCOTT. [1874]
(43 L. J. Ex. 92; L. R. 9 Ex. 125 ; 30 L. T. 431 ; 22 W. R. 575.)

The defendant having contracted to carry the plaintiff's sheep
on board his vessel from Hamburg to Newcastle, omitted t<>



152 TORT.

provide any pens, battens or footholds for the sheep on board
the vessel as required by an Order of the Privy Council, and
the plaintiff alleged that by reason of this omission the sheep
were washed overboard and lost. The Order was made under
the powers conferred by sect. To of the Contagious Diseases
(Animals) Ad, 1869, which imposed penalties for disobedience.

Held) that the object of the statute being to prevent the
introduction and spreading of contagious diseases in Great
Britain, and not to protect owners from perils of the sea
during the voyage, no action tag against the defendants for
breach of the duty imposed by the statute and order.

U'<i rd v. Hobbs, p. 77, supra, is another instance of this
doctrine.



RELATION OF CONTRACT AND TORT.



In an Action for Tort Privity of Contract is not necessary.

LANGRIDGE v. LEVY. [1837]
(6 L. J. Ex. 137 ; 2 M. & W. 519; 40 R. R. 689.

George Langridge, the father of the plaintiff, being desirous
of purchasing a gun, went to the defendant's shop. The
defendant had a gun which he sold to George Langridge for
the use of himself and his sons with the following warranty : —
%> "Warranted, this elegant twist gun by ^Jock, with case, com-
plete ; made for his late Majesty, George IV. ; cost 60 guineas ;
can be had for 23." The plaintiff having fired the gun, it
burst, and so injured him that bis hand had to be amputated.
lie accordingly sued the defendant, and the jury found that
the defendant had been guilty of a false representation, and
had knowingly sold the gun to the father for the purpose of
being used by the plain! ill.



RELATION OF CONTRACT AND TORT. 153

Held, Hi it although the plaintiff could not have main-
tained an action upon the warranty of a contract, for there
was no privity in that respect between the plaintiff and the
defendant, yet he was at Mini In damages by reason of a
false representation made by the defendant with a view that
the plaintiff" should act upon it, and upon which the plaintiff
actually had acted.



An Untrue Statement does not, in the Absence of Contract or
Fraud, give rise to any Cause of Action by a Person who,
acting thereon, is damaged.

LE LIEVEE v. GOULD. [1893]

62 L. J. ( I B. 353 ; (1893) 1 Q. B. 491 ; 57 J. P. 484 ; 4 It. 274 ;

G8 L. T. 626; 41 W. R. 468.)

The owner of land agreed to convey his land to a builder on
a building lease, whereby the builder contracted to build certain
houses to the satisfaction of the owner. The owner employed the
defendant, a surveyor, to give certificates when certain stages
wire reached. The plaintiff, relying upon the certificates given
by the defendant to the owner, advanced the builder a sum of
money on a mortgage of the buildings. It turned out that the
defendant had negligently, but not fraudulently, given certifi-
cates which were untrue in fact.

Held, that the defendant owed, no duly to the plaintiff to
exercise cure in giving the certificates, and that untrue
statements so made, in the absence of contract or fraud, did
not (jive rise to any cause of action by the plaintiff against
the defendant.



\')\ TORT.



TORTS COMMITTED ABROAD.



An Action lies in this Country for an Act actionable here which
was not justified by the Law of the Place where committed,
although not necessarily actionable there.



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 13 of 29)