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- Pearson v. Purkett (1834) 15 Pick. (Mass.) 264, where a fish inspector was held liable to a purchaser for the negligence of his deputy, where the statute provided that he should be liable for the misconduct of his deputy.

d. Valuers, surveyors, etc.

In Cann v. Willson (1888) L. R. 39 Ch. Div. (Eng.) 39, 57 L. J. Ch. N. S. 1034, 59 L. T. N. S. 723, 37 Week. Rep. 23, persons employed by an owner of land to make a valuation thereof which was to be used to obtain an advance of money on a mortgage of the property, through his solicitors, the appraisers having their attention particularly called to what the valuation was wanted for, were held liable for loss resulting to the mortgagee, which he claimed was sustained through the defendants' negligence in appraising the property, and their misrepresentation of its value. The decision however, was predicated upon two earlier cases,-Heaven v. Pender (1883) L. R. 11 Q. B. Div. 503, 52 L. J. Q. B. N. S. 702, 49 L. T. N. S. 357, 47 J. P. 709, 19 Eng. Rul. Cas. 81-C. A., holding a boat owner liable to a painter employed by a contractor under a contract to paint the vessel, for injuries resulting from a negligently constructed staging furnished by the dock owner, and George v. Skivington (1869) L. R. 5 Exch. (Eng.) 1, 39 L. J. Exch. N. S. 8, 21 L. T. N. S. 495, 18 Week. Rep. 118, holding the manufacturer of a hair wash liable for injurious effects occasioned to the wife of a purchaser,-which do not present the question under annotation.

The

court in the Cann Case states: "In this case the document called a 'valuation' was sent by the defendants direct to the agents of the plaintiff, for the purpose of inducing the plaintiff and his cotrustee to lay out the trust money on mortgage. It seems to me that the defendants knowingly placed themselves in that position, and in point of law incurred a duty towards him to use reasonable care in the preparation of the document called a 'valuation.'"

This case, however, was overruled

in Le Lievre v. Gould [1893] 1 Q. B. (Eng.) 491, 62 L. J. Q. B. N. S. 353, 68 L. T. N. S. 626, 4 Reports, 274, 41 Week. Rep. 468, 57 J. P. 484—C. A., Lord Esher, M. R., stating that Chitty, J., in deciding the Cann Case, acted upon an erroneous proposition of law overruled by the House of Lords in Derry v. Peek (1889) L. R. 14 App. Cas. 337, 58 L. J. Ch. N. S. 864, 61 L. T. N. S. 265, 38 Week. Rep. 33, 1 Megone, 292, 54 J. P. 148, 12 Eng. Rul. Cas. 250, when they restated the old law that, in the absence of contract, an action founded upon negligence could not be maintained where there was no fraud. And Bowen, L. J., in the Gould Case, states that Cann v. Willson (Eng.) supra, was decided upon a misapprehension of the doctrine of Heaven v. Pender (Eng.) supra.

Derry v. Peek (Eng.) supra, holds that the directors of a tramway company, the charter of which provided that carriages might be moved by animal power, and with the consent of the board of trade by mechanical power, were not liable in issuing a prospectus containing the statement that, by their special act, the company had a right to use steam power instead of horses, to purchasers of stock, who took on faith of the prospectus, when later the board of trade refused to sanction the use of steam power, in an action founded upon the false statements, it appearing that the statements as to the steam power were made in the honest belief that they were true. This decision reversed that of the court of appeals, and restored that of Stirling, J., in (1887) L. R. 37 Ch. Div. 541.

In Le Lievre v. Gould (Eng.) supra, where a property owner had leased certain premises with the agreement that the lessee should erect thereon certain buildings, and had agreed to procure for the lessee a loan, to be advanced in instalments at specified stages in the progress of the work of erecting the building, and had made another agreement with an architect and surveyor that he should give certificates from time to time that the work had reached the respective

stages at which the respective instalments were to be advanced, and thereafter the landowner arranged with the plaintiff to advance the money, who took as security a mortgage reciting that the money was to be advanced as the surveyor should from time to time certify and appoint, it was held that the surveyor, who was not aware of the contents of the mortgage, was not liable to the mortgagee in consequence of his negligence in making out certificates containing untrue statements as to the progress of the building (there being no fraud on his part), since no contractual relation existed between him and the mortgagee. Lord Esher, M. R., states: "No doubt the defendant did give untrue certificates; it was negligent on his part to do so, and it may even be called gross negligence. But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there, when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world, if he owes no duty to them. The case of Heaven v. Pender (Eng.) supra, has no bearing upon the present question." And Bowen, L. J., after discussing the duty and liability of the owner of a dangerous agency, or dangerous premises, as to the management and care thereof in regard to third persons, states that Heaven v. Pender (Eng.) supra, was an instance of this class of cases, and observes: "Has it any application to the present case? Only, I suppose, on the suggestion that a man is responsible for what he states in a certificate to any person to whom he may have reason to suppose that the certificate may be shown. But the law of England does not go to that extent; it does not consider that what a man writes on paper is like a gun or other dangerous instrument, and, unless he intended to deceive, the law does not, in the absence of contract,

hold him responsible for drawing his certificate carelessly."

And a quantity surveyor, who, at the instance of the architect employed by one proposing to build a church, prepared a bill of quantities according to the plans drawn by the architect, was held in Priestley v. Stone (1888) 4 Times L. R. (Eng.) 730, not liable to a builder tendering for the construction of the building, where another tender was accepted for a certain sum, in an action for the injury caused by the alleged negligence and breach of duty of the defendant as quantity surveyor in preparing an inaccurate bill of quantities, based upon the theory that by preparing the bill he represented that the same was correct, and would be sufficient for the building of the church according to the plans. The master of the rolls (Lord Esher) states, however, that the surveyor had no control over the way in which the bill of quantities was used, that they might not be used at all, and did not amount to a representation that they were true in fact, and that the architect might alter the quantities before sending them to the builder.

In Love v. Mack (1905) 93 L. T. N. S. (Eng.) 352-C. A., affirming (1905) 92 L. T. N. S. 345, the owner of a public tavern applied to a solicitor to find someone to advance money on a mortgage of his property, and the solicitor arranged with another solicitor holding the power of attorney of the plaintiff, to advance money subject to the satisfaction of the valuation of the premises and the guaranty of a loan by an insurance society. The defendant, a licensed valuer, was employed by an insurance society, which sent him instructions on lithographed forms, with a copy of the particulars of the premises, to value them, the insurance society directing him to refer to the solicitor for his fees. Thereafter defendant was asked to supply the solicitor with a copy of the report, which he, as a matter of courtesy, without the written authority of the society, gave the solicitor. Because of reasons arising subsequently, the insurance society refused

to guarantee the loan, and the plaintiff's solicitor decided to advance the money on the face of the valuation made by the defendant. In an action on behalf of the mortgagee for damages caused through the negligence of the defendant in overvaluing the premises, the court held that there could be no recovery, inasmuch as there was no privity of contract between the parties, the decision of Le Lievre v. Gould (Eng.) supra, being accepted as controlling.

e. Miscellaneous.

The principle that persons not in privity are not entitled to recover from one making a certificate or record, for negligence in the making, was applied in Kahl v. Love (1874) 37 N. J. L. 5, where a collector of taxes who, upon receiving a check from the owner of land in payment of certain taxes, gave a receipt in full, was held not liable to a subsequent purchaser relying on the tax receipts exhibited to him as evidence that the land was unencumbered by taxes at the time he made the purchase, where thereafter, because the check was dishonored, the taxes were levied on the land, then in the hands of the plaintiff. It appeared that there was no law requiring or authorizing the collector to give certificates simply to show that lands were discharged from assessment, but that he had no right to give a receipt for any other purpose than as evidence of the settlement as between the taxpayer and the public. The court states: "It is not everyone who suffers a loss from the negligence of another that can maintain a suit on such ground. The limit of the doctrine relating to actionable negligence is that the person occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss. Such a restriction on the right to sue for a want of care in the exercise of employment, or the transaction of business, is plainly necessary to restrain the remedy from being pushed to an impracticable extreme. There would be no bounds to actions and litigious intricacies, if the ill effects of the neg

ligences of men could be followed down the chain of results to the final effect."

And a certified public accountant was held not liable for losses sustained by one purchasing corporate stock in reliance upon the accountant's audit of the books of the corporation, merely because of negligence in making that audit, in Landell v. Lybrand (1919) 264 Pa. 406, 8 A.L.R. 461, 107 Atl. 783, the court stating that, as the plaintiff was a stranger to the defendant and to the corporation, and as no duty toward him rested upon them, they could not be guilty of any negligence of which he could complain.

In Stevenson v. Watson (1879) L. R. 4 C. P. Div. (Eng.) 148, 48 L. J. C. P. N. S. 318, 40 L. T. N. S. 485, 27 Week. Rep. 682, where a company proposing to build a hall had employed the defendant as an architect, and he had accordingly prepared plans, drawings, specifications, general conditions of the contract, and a bill of quantities, and the defendant, a contractor, was employed to carry out the work, it was held that the architect was not liable to the contractor for his failure to use due care and skill in ascertaining the amounts, or in knowingly or negligently certifying the net balance payable to the company in respect of work executed, for a much less sum than was in fact the net balance payable, since, under the contract, which provided that the contractors and directors would be bound to leave all questions or matters of dispute arising in the settlement of the account to the architect, whose decision was to be final and binding, he occupied the position of an arbitrator, and would not be liable unless fraud or collusion were shown.

But, adopting the principle that one who follows a common calling may come under a duty to another than the one whom he serves, though a third may give the order or make the payment, the court in Glanzer Shepard (1922) 233 N. Y. 236, 23 A.L.R. 1425, 135 N. E. 275, held that a public weigher, who, upon the order of the seller, weighed certain goods

V.

for the vendee named in the order, certifying to the weights thereof, was liable to the vendee for a shortage in the weight of the goods, which the vendee accepted upon the faith of the certificate of weights. The court states: "We do not need to state the duty in terms of contract or of privity. Growing out of a contract, it has none the less an origin not exclusively contractual. Given the contract and the relation, the duty is imposed by law." This decision affirms the judgment of the appellate division in (1921) 194 App. Div. 693, 186 N. Y. Supp. 88, based upon the ground that the defendants owed a legal duty to the plaintiff carefully to weigh and ac

The

curately to certify the result. court there states: "It is true as a general rule, where the duty violated by the defendant was created solely by contract, that a cause of action arising out of such a violation is limited strictly to the parties in the contract, and those in privity with them. No privity of contract is necessary, however, to sustain an action in tort by an individual specially injured by an act or omission constituting a breach of contract, where it also constitutes an invasion of the legal right of, or the violation of a legal duty owed to, the plaintiff, independently of or concurrently with the contract." G. S. G.

R. E. WILSON, Admr., etc., of R. D. Wilson, Deceased, Appt.,

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Bills and notes, § 251 promise to marry as consideration

death.

effect of

1. The natural death before the day for performance arrives, of a man who has executed a promissory note in consideration of the payee's promise to marry him, destroys the consideration and makes the note unenforceable in the hands of the payee.

[See note on this question beginning on page 86.]

Appeal, § 383 question open

cor

rectness of conclusion of law. 2. Upon appeal in a case tried without a jury, the court is not limited to consideration of the sufficiency of the pleadings, although there was no motion for new trial, no bill of evidence, and no bill of exceptions, if the pleadings, findings of fact, and conclusions of law are in the record, with a specific exception to the conclusions of law, but the court may consider the ques

tion whether or not the court erroneously applied the law.

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APPEAL by defendant from a judgment of the Circuit Court for Bell County in favor of plaintiff in an action brought to enforce payment of a promissory note executed and delivered by defendant's intestate to plaintiff.

Reversed.

The facts are stated in the opinion of the court,

(200 Ky. 609, 255 S. W. 267.)

Mr. N. R. Patterson for appellant. Mr. James H. Jeffries, for appellee: This being an ordinary action, tried as such in the lower court, and there being in the record brought up to this court no motion and grounds for a new trial, no bill of evidence, and no bill of exceptions, the only question before the court is, Does the petition herein state facts sufficient to support the judgment?

Harper v. Harper, 10 Bush, 447; Helm v. Coffey, 80 Ky. 176; Henderson v. Dupree, 82 Ky. 678; Bobbitt v. Blakemore, 153 Ky. 170, 154 S. W. 941; Myers v. Saltry, 163 Ky. 481, 173 S. W. 1138, Ann. Cas. 1916E, 1134.

The promise of the plaintiff to marry defendant's intestate, R. D. Wilson, is a valuable consideration, and sufficient to support the note sued on.

7 Cyc. 712-715; 9 Cyc. 320-323; Jennings v. Anderson, 4 T. B. Mon. 445; Crostwaight v. Hutchinson, 2 Bibb, 407, 5 Am. Dec. 619; Sanders v. Miller, 79 Ky. 517, 42 Am. Rep. 237; Prewit v. Wilson, 103 U. S. 22, 26 L. ed. 360; Harrison v. Cage, 5 Mod. 411, 87 Eng. Reprint, 736, 1 Langdell, Sel. Cas. Contr. 396; Holt v. Clarencieux, 2 Strange, 937, 93 Eng. Reprint, 954, 1 Langdell, Sel. Cas. Contr. 397; Forwood v. Forwood, 86 Ky. 114, 5 S. W. 361.

As shown by the evidence and found by the trial court in his finding of facts, there was a constructive delivery of the note sued on, to the plaintiff during his lifetime, by defendant's intestate, R. D. Wilson.

Meeker v. Shanks, 112 Ind. 207, 13 N. E. 712; Hensley v. Tuttle, 17 Ind. App. 253, 46 N. E. 594; Re Reeve, 111 Iowa, 260, 82 N. W. 912; School Dist. v. Sheidley, 138 Mo. 672, 37 L.R.A. 406, 60 Am. St. Rep. 576, 40 S. W. 656; Wood v. Flanery, 89 Mo. App. 632; Rowan v. Chenoweth, 49 W. Va. 287, 87 Am. St. Rep. 796, 38 S. E. 544; Rabasse's Succession, 49 La. Ann. 1405, 22 So. 767; O'Neal v. Sovereign Woodmen, 130 Ky. 68, 113 S. W. 52.

Turner, C., filed the following opinion:

On the 17th day of January, 1920, R. D. Wilson executed his note, payable to appellee one day thereafter, for $5,000, in consideration of their mutual promises to each other, then and theretofore made, to marry.

He retained the actual custody of the instrument, and it remained in

34 A.L.R.-6.

his safety deposit box at the bank at all times between that and his death in March, 1920; but the findings of fact hereinafter referred to show there was in truth a constructive delivery of the same to appellee.

In March, 1920, R. D. Wilson died intestate, unmarried, and without issue, and thereafter appellant qualified as his administrator.

This is an action by appellee on that note, wherein she alleges there was a valuable consideration for the same, and in another paragraph that the consideration therefor was work and labor theretofore performed by her for Wilson, and an additional consideration was that, at and before the execution thereof, the plaintiff, at the special instance and request of said Wilson, had agreed and promised to marry him, and had been at all times thereafter, until the death of said Wilson, ready, able, and willing and desirous of complying with her said promise. There is, however, no averment that the agreement to marry was to be carried out at any particular time or day, nor is there any allegation of failure or refusal upon the part of Wilson to comply with their mutual promise then made to each other, nor that he voluntarily, by self-destruction otherwise, placed it out of his power to comply with his agreement.

or

The answer denied the delivery of the note to the plaintiff, denied the same was executed in consideration of work or labor theretofore performed, and affirmatively averred that the same was wholly without consideration.

By agreement a jury trial was waived, and the action tried by the judge of the court, and the plaintiff requested the court, at the conclusion of the trial, to separate his findings of fact and his conclusions of law. Accordingly the court, before entering judgment, found the facts to be (1) that the consideration for the execution of the note was that at the time and prior thereto, and continuously there

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