Gray v. Jackson.

bility would be held, as a matter of law, in Massachusetts, to be different from what it now is. The fact that by the terms of their charter they were carriers only between Portsmouth and Boston, might be evidence on the question whether they intended to undertake for carriage beyond Boston. It would seem that any presumption drawn from their charter as to their intention on that point would be an inference of fact and not of law. But the defendants not being a corporation, it seems to be expressly settled that, by the law of Massachusetts, the question whether they undertook to carry the plaintiff's parcel beyond Boston is a question of fact. The judge who tried the case found a general verdict for the defendants, and there must be

Judgment on the verdict.

NOTE. - In Burroughs v. Norwich & Worcester R. R. Co., 1 Am. Rep. 78 (100 Mass. 26), It was held that a common carrier, receiving goods directed to a point beyond its line, is responsible beyond its own line only as a forwarder, unless it makes a positive agreement extending its liability; and that a station agent of such carrier is not authorized to extend such liability, without special authority from the carrier. It was also held that an agreement between two connecting carriers for a division of gross receipts for transportation on the through line, but providing that loss or damage to property on said line shall be borne by the party having possession at the time gives a right of action for loss or damage only against the carrier in fault. In Cutts v. Brainerd, 1 Am. Rep. 353 (42 Vt. 566), goods were delivered to a common carrier, marked for a point beyond their line, and a receipt given therefor, wherein the carrier agreed "to forward by its railroad and deliver to ——or order, at its depot in," the consignee and place of deposit being left blank. The court held that the receipt constituted a special contract that the carrier would deliver the goods at the place of destination. In the Nashua Lock Co. v. The Worcester & Nashua R. R. Co., 2 Am. Rep. 242, an agreement between a continuous line of common carriers to divide the price for through freight was held sufficient to render one of the carriers responsible for goods received by him for through carriage for any loss on any part of the connecting line.

But in the Cincinnati, etc., R. R. Co. v. Pontius, 2 Am. Rep. 391 (19 Ohio St. 221), an agreement betwen connecting lines for a division of through freight held not to render one carrier receiving goods to be carried through liable for a loss on the connecting line, where it was expressly stated in the bill of lading therefor, that the receiving carrier would transport them to the end of his line and then deliver them to the connecting line, and that in case of loss, the carrier having possession at the time of the loss should be alone liable. See Toledo, etc., R. R. Co. v. Merriman, 4 Am. Rep. 592 (52 Ill. 123), wherein a peculiar bill of lading was held to be a "through contract." In Ilinois Cent. R. R. Co. v. Frankenberg, 5 Am. Rep. 92 (54 Ill. 88), it was held by a divided court that where a common carrier receives goods marked for transportation beyond its line, it assumes the common-law liability for loss whether on its own line or on a connecting line, unless it specifically limit its liability to its own line, and the consignor have knowledge of such limitation. See, also, Lamb v. Camden, etc., R. R. Co., 7 Am. Rep. 327 (45 N. Y. 271); Barter v. Wheeler, 6 Am. Rep. 434 (49 N. H 9); American Express Co. v. Second National Bank. 8 Rep. 288 (60 Penn. St. 394). — REP.

Hammond v. Hussey.

HAMMOND V. HUSSEY.

(51 N. H. 40.)

Action—for malfeasance in performing voluntary service. Consideration.

Declaration that defendant, the teacher of a high school, was requested by the school committee, whose own duty it was, to examine candidates for admission to such school and report upon their qualifications, that he undertook the duty, that plaintiff was examined and found qualified, but that defendant falsely and maliciously reported against him and he was excluded from the benefits of the school. On demurrer held, (1) that the declaration was good; (2) that the confidence reposed in the defendant by the committee to examine candidates, and his acceptance of the trust, created sufficient legal consideration to make it a duty to faithfully perform the same.

ACTION brought by Charles B. Hammond against Thomas H. W. Hussey for damages sustained under the following facts: Defendant was principal and teacher of a high school at Nashua, N. H. He was requested by the school committee of the district to make an examination of the qualifications of certain scholars of the district with the view of ascertaining what scholars were qualified to be retained, and report truthfully thereon to the committee. April 13, 1869, the plaintiff, a scholar in said school, was examined, with a view of ascertaining his qualifications to be retained as a scholar in said school. Plaintiff alleges in his declaration that he was found qualified, but that defendant," with the intent wrongfully to deprive him of the benefits of instruction in said school, and unjustly and unlawfully exclude him as a scholar therefrom, maliciously, deceitfully and falsely reported to the committee" against plaintiff's qualifications. The defendant entered a general demurrer to plaintiff's plea and the decision of the court is upon the same.

A. W. Sawyer, for defendant. The duty of examining scholars for admission having been imposed on the school committee, the latter could not delegate it, and the duty and responsibility rest alone upon them. Moore v. Wilson, 26 N. H. 332; Powell v. Tuttle, 3 N. Y. 396; Downing v. Ruger, 21 Wend. 178; State v. Buffalo, Hill, 434. The law imposed no duty upon the defendant to examine scholars for admission, and he was therefore not liable for mig VOL. XII.-6

Hammond v. Hussey.

feasance or malfeasance in the discharge of an official or legal duty. Mayor of Albany v. Cunliff, 2 N. Y. 165; Buller's N. P. or Cr. El. 219. The plaintiff's proper course was an appeal to the committee. Sherman v. Charlestown, 8 Cush. 160. To the point that an action does not lie where the law imposes no duty, counsel cited the following authorities: 1 Bacon's Abr., tit. Action on Cases; Balfe v West, 13 Com. B. 466; Stone v. Cartwright, 6 T. R. 411; Platt v. Potts, 13 Ired. 455; Matthews v. Pass, 19 Geo. 141; Johnson v. Hitchcock, 15 Johns. 185; Spear v. Cummings, 23 Pick. 224; Harvey v. Bush, 2 Penning. (N. J.) 975. The act not amounting to a legal injury, the bad intent cannot make it actionable. Stevenson v. Newnham, 13 Com. B. 285; Auburn v. Douglass, 9 N. Y. 444; Keith v. Howard, 24 Pick. 292.

Geo. Y. Sawyer and Sawyer, Jr.; Barrett & Atherton and Morrison & Stanley, for plaintiff.

FOSTER, J. The substance of the plaintiff's declaration is that the school committee employed the defendant to examine candidates for admission to the high school, and to report upon qualifications; that the defendant voluntarily undertook to make such examination; that he examined the plaintiff, and found him to possess the requisite qualifications; but, with intent wrongfully to exclude the plaintiff from the school and to deprive him of its benefits, maliciously and falsely reported to the committee that he was not qualified; and, by reason of this malicious and false representation, the plaintiff was excluded from the school and lost its benefits.

The declaration, therefore, charges upon the defendant a willful and positive deceit and fraud; and the suit is placed upon the general ground that, where one party sustains an injury by the malfeasance of another, the sufferer may maintain an action against the wrong-doer for redress.

The defendant contends that upon this declaration no suit can be maintained; because, assuming the allegations to be true, there is no contract, express or implied, between these parties, and without privity of contract there can be no liability.

It is true that there was no express contract between the parties, and that the defendant acted in the performance of no public duty nor of any obligation to the plaintiff. It is also true that the plain

Hammond v. Hussey.

tiff was under no obligation to submit himself to the defendant for examination.

But the plaintiff contends that notwithstanding the acts of both parties were voluntary, still the undertaking of the defendant to examine the plaintiff, and the plaintiff's submission of himself to that examination, created and established between them a contract, by implication of law; and that, such being the case, the defendant was under obligation, notwithstanding his work was gratuitous, to perform his undertaking with ordinary care and diligence-to make examination of the plaintiff in good faith, and truthfully to report the result to the committee.

It may be doubted whether these considerations necessarily enter to the present inquiry. The case does not rest upon a charge of negligence nor of misfeasance at all, nor even of malfeasance in the performance of any duty imposed by law or required by the terms of a contract; but the declaration charges a positive and willful false representation, deceit and fraud, whereby the plaintiff received damage. It is of the character of a declaration in slander, and would seem to be governed by the principles applicable to such

a case.

And although it may be said that the voluntary relationship which the parties assumed placed them in privity of contract, so that for negligence in the performance of the defendant's undertaking, a fortiori, for fraud concerning it, he would be liable, in damages, in this action, still, it may be seriously questioned whether the alleged fraud and deceit, though perhaps connected with contract by implication of law, is necessarily affected by or at all dependent upon the existence of such contract.

What difference does it make whether the defendant, in the perpetration of a malicious fraud and falsehood, such as the demurrer admits, violated an express or an implied contract, or any duty resulting from his relation either to the plaintiff or to the school committee; or, whether as a mere stranger, in law, he achieved the wrong and caused the damage? Does not the simple and general rule apply, that, where a party sustains an injury by the willful wrong of another, the sufferer may have his action against the wrong-doer? See Mayor of Albany v. Cunliff, 2 N. Y. 180; Pas ley v. Freeman, 3 Term, 51; S. C., 2 Smith's L. C. 137, 138; W77. link v. Vanderveer, 1 Barb. 599; Watson v. Poulson, 7 Eng. L. & Eq. 585; Salem Bank v. Gloucester Bank, 17 Mass. 1.

Hammond v. Hussey.

But without placing the decision of the questions before us upon these grounds, we have no difficulty nor hesitation in disposing of them by the application of the principles so well settled in Coggs v. Bernard, 2 Ld. Raym. 909; 1 Smith's L. C. *284.

As all lawyers know, it was there held that "if a man undertakes to carry goods safely and securely he is responsible for any damage they may sustain in the carriage through his neglect, though he was not a common carrier, and was to have nothing for the carriage."

The analogy is obvious, and the principle evolved, and by the application of which this case is to be determined, is that the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. Notes to 1 Smith's L. C. *293; Wilkinson v. Coverdale, 1 Esp. N. P. Rep. 74; Doorman v. Jenkins, 2 Ad. & E. 256; 1 Pars. Con. (5th ed.) 447, and note w.

By this rule, a gratuitous and voluntary agent, who has no pub lic or official duty to perform, but who, nevertheless, undertakes gratuitously to do a particular service requiring the trust and confidence of another, though the degree of his responsibility is greatly inferior to that of a hired agent, is yet bound not to be guilty of gross negligence.

Prof. Parsons expresses the rule in more broad and general terins, thus: "If a person makes a gratuitous promise, and then enters upon the performance of it, he is held to a full execution of all he has undertaken."

It is unnecessary to indorse so general a proposition without qualification or limitation; but it is sufficient to hold that if a voluntary agent, without compensation, is accountable for the consequences of his gross negligence, much more should he be held answerable for willful and malicious fraud and wrong in connection with his assumed undertaking,

Questions involving the principle under consideration seldom arise except in the case of bailments, but the principle is broad enough to include the subject of the present inquiry.

The demurrer is overruled.