that it could not be distinguished from assumpsit, and a count so framed could not be properly joined with other forms of case, such as trover. There are certain kinds of employment, namely those of a carrier and an innkeeper, which are deemed public in a special sense. If a man holds himself out as exercising one of these, the law casts on him the duty of not refusing the benefit thereof, so far forth as his means extend, to any person who properly applies for it. The innkeeper must not without a reasonable cause refuse to entertain a traveller, or the carrier to convey goods. Thus we have a duty attached to the mere profession of the employment, and antecedent to the formation of any contract; and if the duty is broken, there is not a breach of contract but a tort, for which the remedy under the common law forms of pleading is an action on the case. In effect refusing to enter into the appropriate contract is of itself a tort. Duties of the same class may be created by statute, expressly or by necessary implication; they are imposed for the benefit of the public, and generally by way of return for privileges conferred by the same statutes, or by others in pari materia, on the persons or corporations who may be concerned. duty of carriers and innkeepers by "custom" of the Here the duty is imposed by the general law, though by Special a peculiar and somewhat anomalous rule; and it gives rise to an obligation upon a simple non-feasance, unless we say that the profession of a "public employment" in this sense is itself a continuing act, in relation to which the realm." refusal to exercise that employment on due demand is a misfeasance. But on this latter view there would be no reason why the public profession of any trade or calling whatever should not have the like consequences; and such an extension of the law has never been proposed. Alternative of not affect substance of duty or liability. The term "custom of the realm" has been appropriated to the description of this kind of duties by the current usage of lawyers, derived apparently from the old current form of declaration. It seems however that in strictness "custom of the realm" has no meaning except as a synonym of the common law, so that express averment of it was superfluous (1). Even where the breach of duty is subsequent to a complete contract in any employment of this kind, it was long the prevailing opinion that the obligation was still founded on the custom of the realm, and that the plaintiff might escape objections which (under the old forms of procedure) would have been fatal in an action on a contract (m). In all other cases under this head there are not two form does distinct causes of action even in the alternative, 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 (0). Even where there is a contract, our authorities do not say that the more general duty ceases to exist, (1) Pozzi v. Shipton (1839) 8 A. & E. 963, 975, 8 L. J. Q. B. 1. Cp. Tattan v. G. W. R. Co. (1860) 2 E. & E. 844, 29 L. J. Q. B. 184, Y. B. 2 Hen. IV. 18, pl. 5. (m) Pozzi v. Shipton, last note. (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. 1 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 (9). 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). (p) Jennings v. Rundall (1799) 1 T. R. 355; p. 50 above. (a) Chinery v. Viall (1860) 5 H. P. & N. 288, 29 L. J. Ex. 180; p. 312 above. () Marzetti v. Williams (1830) 1 HH view the In modern Now that forms of pleading are generally abolished or obligation greatly simplified, it seems better to say that wherever is wholly there is a contract to do something, the obligation of the in con tract. Limits of the rule. contract is the only obligation between the parties with From this point of view the permanent result of the All these rules and restrictions, however, must be taken with regard to their appropriate subject-matter. They do B. & Ad. 415; action by customer (s) Fleming v. Manchester, Shef- () 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 f 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. II.-Concurrent Causes of Action. Herein we have to consider— (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 Concur rent causes of action. |