misfeasance may be a breach of a contract made Cases of tort, contract or no contract between same parties. not with A. but with M. (a) There are two modern railway cases in which the whether 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 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 (r), 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) (u), or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely (r). 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 (u) 5 E. & B. 860, 25 L. J. Q. B. 129 (1856), see p. 263 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 criticisın. (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. class of authorities now well established (). 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 (≈). 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 and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train without any contract at all (b). Evidently the plaintiff in a case of this kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort; at the same time the rule that the defendant's liability must not be increased by varying the form of the claim is not here applicable, since the plaintiff may rely on the tort notwithstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it. On the other hand we have cases in which an obvious Contract tort is turned into a much less obvious breach of contract in law" "implied with the undisguised purpose of giving a better and more and waiver (y) See Chap. XII. p. 443 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 own money: could it be argued that the master had no (b) Marshall v. York, Newcastle of tort. Implied warranty authority (Collen v. Wright). convenient remedy. Thus it is an actionable wrong to retain money paid by mistake, or on a consideration which has failed, and the like; but in the eighteenth century the fiction of a promise "implied in law" to repay the money so held was introduced, and afforded "a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund" (c), and even to cases where goods taken or retained by wrong had been converted into money. The plaintiff was said to "waive the tort" for the purpose of suing in assumpsit on the fictitious contract. Hence the late Mr. Adolphus wrote in his idyllic poem "The Circuiteers": 66 'Thoughts much too deep for tears subdue the Court When I assumpsit bring, and godlike waive a tort" (d). This kind of action was much fostered by Lord Mansfield, whose exposition confessed the fiction of the form while it justified the utility of the substance (e). Within still recent memory an essentially similar fiction of agent's of law has been introduced in the case of an ostensible agent obtaining a contract in the name of a principal whose authority he misrepresents. A person so acting is liable for deceit; but that liability, being purely in tort, does not extend to his executors, neither can he be held personally liable on a contract which he purported to make in the name of an existing principal. To meet this difficulty it was held in Collen v. Wright (f) that when a man offers to contract as agent there is an implied warranty that he is really authorized by the person named as princi (e) Blackst. iii. 163. (d) L. Q. R. i. 233. (e) Moses v. Macferlan, 2 Burr. 1005; cp. Leake on Contracts, 1st ed. 39, 48. (f) Ex. Ch. (1857) 8 E. & B. 647, 27 L. J. Q. B. 215. pal, on which warranty he or his estate will be answerable ex contractu. Just as in the case of the old " common counts," the fact that the action lies against executors shows that there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action, with a remedy upon either at the plaintiff's election. We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties. rent causes (b) There may be two causes of action with a common Concurplaintiff, or the same facts may give Z. a remedy in contract of action against A. and also a remedy in tort against B. against different parties in contract and in tort. Dalyell v. The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for Tyrer. a day. The plaintiff held a season-ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hurt. He sued not the lessee of the ferry but the owners of the hired vessel; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in Foulkes v. R. Co. exercise of a right acquired by contract upon a considera- The latest and most authoritative decision on facts of this kind was given by the Court of Appeal in 1880 (h). The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuitable to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff's ticket had been issued the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The District Company received him as a passenger in their train, and were bound to provide carriages not only safe and sound in themselves, but safe with reference to the permanent way and appliances of the line. In breach of this duty they provided, according to the facts as determined by the jury, a train so ordered that "in truth the combined arrangements were a trap or snare," and would have given the plaintiff a cause of action though he had been carried gratuitously (i). He had been actually received by the |