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existence of any contract. Upon this difference depends the distinction between actions on contract and actions for tort.
Actions on contract.
1. Actions on Contract, or ex contractu. An action on contract is an action brought for the non-performance or breach of any contract or promise whether expressed or implied, whether made by deed, simply in writing, or by word of mouth. An action on contract, though said to be brought on the contract, because a contract must exist as the basis of it, is, strictly speaking, an action for the breach of a contract. And, in order to maintain the action, it is no less necessary that a contract should be broken than that it should exist. This holds good whatever be the nature of the contract sued upon, e.g., whether it be a promise to pay for goods supplied, or a covenant by deed to
rent. In the case of a debt, e. g., for goods supplied otherwise than on credit, an action can, it is true, be brought immediately that a debt is incurred, i. e., on the delivery of the goods, and without any demand upon the debtor for payment. The explanation of this is, that in the case of such a debt the law considers the agreement to be (in the absence of any special terms) to pay the debt immediately, and the mere non-payment constitutes a breach of contract.
In a covenant, on the other hand, there is generally a time fixed for the performance of the covenant, and until this time has arrived, an action for its non-performance cannot be brought. But in either case no action can be brought on the contract unless and until a breach of the contract has occurred (d).
(d) Com. Dig., Action, E. A case such as Hochster v. De la Tour, 2 E. & B. 678 ; 22 L. J. 456, Q. B., where a person engaged to enter into an employment in June, was held entitled to commence in May an action against his proposed employer for announcing his resolution not to employ him, is not in reality inconsistent with this statement, since the defendant was held to have broken his contract by the refusal to employ the plaintiff.
2. Actions for Tort, or ex delicto. An action for tort is an action for a wrong independent Actions for of contract(e), e.g., for an assault, imprisonment, fraudulent misrepresentation, &c. In other words, a wrong or a tort is a violation by one person of any of the rights (e.g., the right to personal liberty) possessed by arhother person independently of any agreement with the wrong doer, and an action for a wrong or a tort is an action on account of the violation of, or interference ith, such rights (f).
Hence, to the maintenance of an action for tort, two things are necessary. In the first place, there must exist a “right" on the part of the plaintiff, independently of any agreement between him and the defendant. This corresponds to the right existing by contract, which forms the basis of an action on contract. In the second place, there must exist on the part of the defendant a violation of, or interference with, this right of the plaintiff. This corresponds with the breach of contract in an action on contract.
Thus an action for an injury done to the plaintiff by the careless driving of the defendant, depends upon
the right of the plaintiff (independently of any contract) not to be injured by the negligence of the defendant, and upon the violation of such right through the carelessness of the defendant.
Incidents of Actions on Contract and Actions for Tort.
There are several leading distinctions (affecting the Incidents choice of parties) between actions
contract and of the two
actions. (c) See C. L. P. Act, 1852, Sched. B.
(f) A right conferred by contract may be either a positive right, i.e., a right to have a thing done, e.g., to have a house built-or a negative right, i.e., to have something not done, e.g., not to be hindered from passing over a certain piece of land : a right independent of contract is in almost erery case a negative right, e.g., not to be assaulted, not to be defrauded, &c.
actions for tort, which, though considered at length in different parts of this treatise, may be here pointed out generally.
The chief of these differences are as follows:
1. No one can sue or be sued for the breach of a contract, who “is a stranger to the contract," or, as it iş. sometimes expressed, “is not privy to the contract, What is meant is, that the person to sue for th breach of a contract must be the person with who the contract is in the eye of the law made, and
sue for the breach of a contrac not made with him, simply on the ground that he is injured by the breach (9). Any person on the other hand, who is injured by a wrongful act, may bring an action for tort against the wrong-doer, even though the injury be an indirect one, as where a master is injured in consequence of an injury done to his servant (h). The same act, moreover, may result in an interference with the separate rights of an indefinite number of persons, or in other words, be the cause of many torts (i), e.g., the careless act of an engine driver may cause separate injuries or torts to an indefinite number of passengers.
From the fact that the same act may constitute a tort to an indefinite number of persons, it follows that while the person or persons to sue for a breach of contract must be a definite person or definite persons ascertainable before the contract is broken, the number of persons who may have separate rights of action against a wrongdoer for the same tortious act, is indefinite and unascertainable before the commission of such act.
(g) Winterbottom v. U'right, 10 M. & W. 109; 11 L. J. 415, Ex., Rule 10.
(h) Compare Allon v. Vidland Rail. Co., 19 C. B., N. S., 213 ; 34 L. J. 292, C. P.
(i) See Scott v. Shepherd, 1 Smith, L. C., 6th ed., 422-423, judgment of Gould, J., Whenever a man does an unlawful act he is answerable for all the consequences."
2. In an action on contract, all the persons with whom the contract is in the eye of the law,) made, should join as plaintiffs, since A. cannot recover damages for the breach of a contract made with A. and B.
In an action for tort, on the other hand, it is frequently a matter of choice whether the persons injured should şue separately or jointly, and in any case the nonjoinder of a plaintiff is a matter of comparatively small importance. For, if in such an action, where A.
, and B. ought to sue jointly, A. sues alone, he may, it As true, be forced (by a plea in abatement) to join B. with him. But if the non-joinder of B. is not objected to at the proper stage of the proceedings before the trial, A., though it may appear that B. ought to have been joined, will recover damages in proportion to the injury which he himself has suffered, and no objection can be taken to a subsequent action by B. alone for the injury which B. has sustained (k).
In other words, a contract with A. and B. jointly is a different thing from a contract with A. alone, and it is an answer to an action by A. that the contract sued upon was a contract, not with A., but with A. and B. injury to A. is no less an injury to him because it was an injury to A. and B. jointly. Hence, if A. sues alone for an injury, e.g., to the joint property of A. and B. (though it may be possible by proper pleading to compel A. to join B. with him as plaintiff), it is no answer to the action by A. for the injury to him that the tort committed was a tort against A. and B. jointly (1).
3. In an action on contract, all the persons by whom the contract was made should, properly speaking, be joined as defendants, i.e., joint contractors should be sued jointly for a breach of contract, and it is an error to sue X. alone for the breach of a contract made by X. and Y. jointly. The error is, however, of minor importance,
(k) Addison v. Overend, 6 T. R. 766 ; Sedgworth v. Overend, 7 T. R. 279.
(1) See Chapter XXXIV., as to non-joinder of plaintiffs.
since, though the defendant, X., can by proper pleading (i.e., by a plea in abatement) compel the plaintiff to make Y. a co-defendant, still, if the objection be not taken at the proper stage of the proceedings before the trial, X. will be held liable on the joint contract of X. and Y. (m).
In an action for tort, no objection whatever can be made to the non-joinder of a joint wrong-doer a defendant.
In other words, joint contractors are jointly liable! but a wrong-doer is always separately liable for his torts, even though another person may be liable with him ; hence, in an action against X. alone on a contract made by X. and Y., it is an objection that the action ought to have been brought against X. and Y. jointly. But to an action for tort against X., it is no objection whatever that the wrong complained of was committed by X. and Y. jointly, since X. is none the less responsible for a tort, because Y. also happens to be responsible.
4. In an action on contract, the misjoinder of defendants is, unless amended, a fatal error, i, e., a contract by X. and Y. is a different contract from one by X. alone, and if an action be brought against X. and Y., on a contract made by X. only, the action will fail.
On the other hand, the misjoinder of defendants in an action for tort is of small importance, i.e., if X. and Y. be sued jointly for a tort committed by X. alone, a verdict will be found against X., and in favour of Y., and it will be no defence to X., that though he is guilty of a wrong, Y. is not guilty (n).
5. A woman is not liable for, and cannot be sued on contracts made by her during coverture, and no person is, as a general rule, responsible for or liable to be sued on contracts made during infancy; but married women
(m) Rice v. Shute, 1 Smith, L. C., 6th ed., 511.
(n) For the effect of non-joinder, inisjoinder, and the amendment of these errors, see Chapter XXXIV.