The other conditions to complete the cause of action. 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. doctrine. In America the decision in Lumley v. Gye has been American followed in Massachusetts (o) and elsewhere, 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" (p). terference It is, perhaps, needless to consider specially the case of Wilful ina man wilfully preventing the performance of a contract with conby means other than persuasion; for in almost every such tract with (0) Walker v. Cronin (1871) 107 Mass. 555, a case very like Bowen v. Hall. (p) 107 Mass. 566. I owe the following additional references to State reports to the kindness of an American friend :-Rice v. Manley, 66 N. Y. (21 Sickels) 82; Benton out per mission. Damage to stranger by breach of con tract. 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 (9). (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 (r). On the other hand, a breach of contract, as such, will generally not be a cause of action for a stranger (s). 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 (f). (q) See Mr. William Schofield on "The principle of Lumley v. Gye and its application," Harv. Law Rev. ii. 19. (r) P. 473 above. (s) The exceptions to this rule are much wider in America than in England. (t) Dickson v. Reuter's Telegram Co. (1877) 3 C. P. Div. 1, 47 L. J. receiver of different and U. S. "In America, on the other hand, one who receives a Position of telegram which, owing to the negligence of the telegraph erroneous company, is altered or in other respects untrue, is invari- telegram: ably permitted to maintain an action against the telegraph views in England 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 (u). 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 (x), 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 C. P. 1, confirming Playford v. (u) Gray on Communication by Telegraph (Boston, 1885) §§ 71-73, where authorities are collected. And see Wharton on Contracts, §§ 791, 1056, who defends the American rule on somewhat novel speculative grounds. Perhaps the common law ought to have a theory (x) See especially Denton v. G. 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, like that of a trustee with regard to incumbrances on the trust fund (y); so that an action as for deceit will lie without actual fraud. But 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 (y) Burrowes v. Lock, 10 Ves. 470, supra, p. 175. 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. flict con In the present writer's opinion the American decisions, The conthough not all the reasons given for them, are on principle sidered on correct. The undertaking to transmit a sequence of letters principle. 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 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 (2) The law of defamation stands apart: but it is no exception to the proposition in the text, for it is not a law requiring care and caution in greater or less degree, but a law of absolute responsibility qualified |