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- Pearson V. Purkett (1834) 15 in Le Lievre v. Gould (1893] 1 Q. B. Pick. (Mass.) 264, where a fish in- (Eng.) 491, 62 L. J. Q. B. N. S. 353, spector was held liable to a purchaser 68 L. T. N. S. 626, 4 Reports, 274, 41 for the negligence of his deputy, Week. Rep. 468, 57 J. P. 484-C. A., where the statute provided that he Lord Esher, M. R., stating that Chitty, should be liable for the misconduct J., in deciding the Cann Case, acted of his deputy.

upon an erroneous proposition of law

overruled by the House of Lords in d. Valuers, surveyors, etc.

Derry v. Peek (1889) L. R. 14 App. In Cann v. Willson (1888) L. R. 39

Cas. 337, 58 L. J. Ch. N. S. 864, 61 L. Ch. Div. (Eng.) 39, 57 L. J. Ch. N. S.

T. N. S. 265, 38 Week. Rep. 33, 1 1034, 59 L. T. N. S. 723, 37 Week. Rep.

Megone, 292, 54 J. P. 148, 12 Eng. Rul. 23, persons employed by an owner of

Cas. 250, when they restated the old land to make a valuation thereof which

law that, in the absence of contract, was to be used to obtain an advance

an action founded upon negligence of money on a mortgage of the prop

could not be maintained where there erty, through his solicitors, the ap

was no fraud. And Bowen, L. J., in praisers having their attention par

the Gould Case, states that Cann v. ticularly called to what the valuation

Willson (Eng.) supra, was decided was wanted for, were held liable for

upon a misapprehension of the docloss resulting to the mortgagee, which

trine of Heaven v. Pender (Eng.) he claimed was sustained through the

supra. defendants' negligence in appraising

Derry v. Peek (Eng.) supra, holds the property, and their misrepresen- that the directors of a tramway comtation of its value. The decision how

pany, the charter of which provided ever, was predicated upon two earlier

that carriages might be moved by cases,—Heaven v. Pender (1883) L.

animal power, and with the consent R. 11 Q. B. Div. 503, 52 L. J. Q. B.

of the board of trade by mechanical N. S. 702, 49 L. T. N. S. 357, 47 J. P.

power, were not liable in issuing a 709, 19 Eng. Rul. Cas. 81-C. A., hold

prospectus containing the statement ing a boat owner liable to a painter that, by their special act, the company employed by a contractor under a

had a right to use steam power incontract to paint the vessel, for in

stead of horses, to purchasers of juries resulting from a negligently

stock, who took on faith of the proconstructed staging furnished by the

spectus, when later the board of trade dock owner, and George v. Skivington

refused to sanction the use of steam (1869) L. R. 5 Exch. (Eng.) 1, 39 L.

power, in an action founded upon the J. Exch. N. S. 8, 21 L. T. N. S. 495,

false statements, it appearing that the 18 Week. Rep. 118, holding the manu- statements as to the steam power were facturer of a hair wash liable for in

made in the honest belief that they jurious effects occasioned to the wife

were true. This decision reversed of a purchaser,—which do not present that of the court of appeals, and rethe question under annotation. The stored that of Stirling, J., in (1887) court in the Cann Case states: "In L. R. 37 Ch. Div. 541. this case the document called a 'valu- In Le Lievre v. Gould (Eng.) supra, ation' was sent by the defendants where a property owner had leased direct to the agents of the plaintiff, certain premises with the agreement for the purpose of inducing the plain- that the lessee should erect thereon tiff and his cotrustee to lay out the certain buildings, and had agreed to trust money on mortgage. It seems procure for the lessee a loan, to be to me that the defendants knowingly advanced in instalments at specified placed themselves in that position, stages in the progress of the work of and in point of law incurred a duty erecting the building, and had made towards him to use reasonable care another agreement with an architect in the preparation of the document and surveyor that he should give called a 'valuation.''

certificates from time to time that the This case, however, was overruled work had reached the

the respective stages at which the respective instal- hold him responsible for drawing his ments were to be advanced, and there- certificate carelessly." after the landowner arranged with And a quantity Surveyor, who, at the plaintiff to advance the money, the instance of the architect employed who took as security a mortgage re- by one proposing to build a church, citing that the money was to be ad- prepared a bill of quantities accordvanced as the surveyor should from ing to the plans drawn by the artime to time certify and appoint, it chitect, was held in Priestley v. Stone was held that the surveyor, who was (1888) 4 Times L. R. (Eng.) 730, not not aware of the contents of the mort- liable to a builder tendering for the gage, was not liable to the mortgagee construction of the building, where in consequence of his negligence in another tender was accepted for a making out certificates containing un- certain sum, in an action for the intrue statements as to the progress of jury caused by the alleged negligence the building (there being no fraud and breach of duty of the defendant on his part), since no contractual re- as quantity surveyor in preparing an lation existed between him and the inaccurate bill of quantities, based mortgagee. Lord Esher, M. R., states:

upon the theory that by preparing the "No doubt the defendant did give un- bill he represented that the same was true certificates; it was negligent on correct, and would be sufficient for his part to do so, and it may even be the building of the church according called gross negligence. But can the to the plans. The master of the rolls plaintiffs rely upon negligence in the (Lord Esher) states, however, that absence of fraud? The question of the surveyor had no control over the liability for negligence cannot arise

way in which the bill of quantities at all until it is established that the was used, that they might not be used man who has been negligent owed at all, and did not amount to a represome duty to the person who seeks sentation that they were true in fact, to make him liable for his negligence. and that the architect might alter the What duty is there, when there is no quantities before sending them to the relation between the parties by con- builder. tract? A man is entitled to be as

In Love v. Mack (1905) 93 L. T. N. negligent as he pleases towards the S. (Eng.) 352–C. A., affirming (1905) whole world, if he owes no duty to 92 L. T. N. S. 345, the owner of a pubthem. The case of Heaven v. Pender lic tavern applied to a solicitor to find (Eng.) supra, has no bearing upon someone to advance money on a mortthe present question.” And Bowen,

gage of his property, and the solicitor L. J., after discussing the duty and lia- arranged with another solicitor holdbility of the owner of a dangerous ing the power of attorney of the plainagency, or dangerous premises, as to

tiff, to advance money subject to the the management and care thereof in

satisfaction of the valuation of the regard to third persons, states that premises and the guaranty of a loan Heaven v. Pender (Eng.) supra, was by an insurance society. The defendan instance of this class of cases, and ant, a licensed valuer, was employed observes: "Has it any application to by an insurance society, which sent the present case? Only, I suppose,

him

instructions on lithographed on the suggestion that a man is re- forms, with a copy of the particulars sponsible for what he states in a cer- of the premises, to value them, the tificate to any person to whom he may insurance society directing him to have reason to suppose that the cer- refer to the solicitor for his fees. tificate may be shown. But the law Thereafter defendant was asked to of England does not go to that ex- supply the solicitor with a copy of the tent; it does not consider that what report, which he, as a matter of a man writes on paper is like a gun courtesy, without the written authoror other dangerous instrument, and, ity of the society, gave the solicitor. unless he intended to deceive, the law Because of reasons arising subsedoes not, in the absence of contract, quently, the insurance society refused

a

as

to guarantee the loan, and the plain- ligences of men could be followed tiff's solicitor decided to advance the down the chain of results to the final money on the face of the valuation effect." made by the defendant. In an action And a certified public accountant on behalf of the mortgagee for dam- was held not liable for losses susages caused through the negligence tained by one purchasing corporate of the defendant in overvaluing the stock in reliance upon the accountpremises, the court held that there ant's audit of the books of the corcould be no recovery, inasmuch as poration, merely because of neglithere was no privity of contract be- gence in making that audit, in Lantween the parties, the decision of Le dell v. Lybrand (1919) 264 Pa. 406, Lievre v. Gould (Eng.) supra, being 8 A.L.R. 461, 107 Atl. 783, the court accepted as controlling.

stating that, as the plaintiff was

stranger to the defendant and to e. Miscellaneous.

the corporation, and no duty The principle that persons not in

toward him rested upon them, they privity are not entitled to recover

could not be guilty of any negligence from one making a certificate or rec

of which he could complain. ord, for negligence in the making, was

In Stevenson v. Watson (1879) L. applied in Kahl v. Love (1874) 37

R. 4 C. P. Div. (Eng.) 148, 48 L. J. N. J. L. 5, where a collector of taxes

C. P. N. S. 318, 40 L. T. N. S. 485, 27 who, upon receiving a check from the

Week. Rep. 682, where a company proowner of land in payment of certain

posing to build a hall had employed taxes, gave a receipt in full, was held

the defendant as an architect, and he not liable to a subsequent purchaser

had accordingly prepared plans, drawrelying on the tax receipts exhibited

ings, specifications, general conto him as evidence that the land was

ditions of the contract, and a bill of unencumbered by taxes at the time he

quantities, and the defendant, a conmade the purchase, where thereafter,

tractor, was employed to carry out the because the check was dishonored, the

work, it was held that the architect taxes were levied on the land, then in

was not liable to the contractor for the hands of the plaintiff. It ap- his failure to use due care and skill peared that there was no law requir- in ascertaining the amounts, or in ing or authorizing the collector to

knowingly or negligently certifying give certificates simply to show that

the net balance payable to the comlands were discharged from assess

pany in respect of work executed, for ment, but that he had no right to give a much less sum than was in fact the a receipt for any other purpose than

net balance payable, since, under the as evidence of the settlement as be

contract, which provided that the contween the taxpayer and the public.

tractors and directors would be bound The court states: “It is not every- to leave all questions or matters of one who suffers a loss from the negli- dispute arising in the settlement of gence of another that can maintain

the account to the architect, whose a suit on such ground. The limit of

decision was to be final and binding, the doctrine relating to actionable

he occupied the position of an arbinegligence is that the person occasion

trator, and would not be liable unless ing the loss must owe a duty, arising fraud or collusion were shown. from contract or otherwise, to the But, adopting the principle that one person sustaining such loss. Such a

who follows a common calling may restriction on the right to sue for a come under a duty to another than want of care in the exercise of em- the one whom he serves, though a ployment, or the transaction of busi- third may give the order or make the ness, is plainly necessary to restrain payment, the court in Glanzer v. the remedy from being pushed to an Shepard (1922) 233 N. Y. 236, 23 impracticable extreme. There would A.L.R. 1425, 135 N. E. 275, held that a be no bounds to actions and litigious public weigher, who, upon the order intricacies, if the ill effects of the neg- of the seller, weighed certain goods for the vendee named in the order, curately to certify the result. The certifying to the weights thereof, was court there states: It is true as a liable to the vendee for a shortage in general rule, where the duty violated the weight of the goods, which the by the defendant was created solely vendee accepted upon the faith of the by contract, that a cause of action certificate of weights. The

court arising out of such a violation is states: “We do not need to state the limited strictly to the parties in the duty in terms of contract or of privity. contract, and those in privity with Growing out of a contract, it has none them. No privity of contract is necesthe less an origin not exclusively con- sary, however, to sustain an action in tractual. Given the contract and the tort by an individual specially inrelation, the duty is imposed by law.” jured by an act or omission constitutThis decision affirms the judgment of ing a breach of contract, where it also the appellate division in (1921) 194 constitutes an invasion of the legal App. Div. 693, 186 N. Y. Supp. 88, right of, or the violation of a legal based upon the ground that the de- duty owed to, the plaintiff, independfendants owed a legal duty to the ently of or concurrently with the plaintiff carefully to weigh and ac- contract.”

G. S. G.

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

v. ELIZABETH NOLEN.

[blocks in formation]

(200 Ky. 609, 255 S. W. 267.) Bills and notes, § 251 promise to marry as consideration effect of

death. 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- tion whether or not the court errone

rectness of conclusion of law. ously applied the law.

2. Upon appeal in a case tried without a jury, the court is not limited to

Breach of promise, $ 3 default consideration of the sufficiency of the lapse of two months. pleadings, although there was no mo- 3. The lapse of two months after a tion for new trial, no bill of evidence, promise to marry with no time fixed and no bill of exceptions, if the plead- does not put the promisor in default, ings, findings of fact, and conclusions since a reasonable time has not expired of law are in the record, with a specif- so as to render enforceable a note ic exception to the conclusions of law, executed by him in consideration of but the court may consider the ques- the payee's promise to marry him.

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 8. W. 267.) Mr. N. R. Patterson for appellant. his safety deposit box at the bank at Mr. James H. Jeffries, for appellee: all times between that and his death This being an ordinary action, tried

in March, 1920; but the findings of as such in the lower court, and there

fact hereinafter referred to show being in the record brought up to this

there was in truth a constructive court no motion and grounds for a new trial, no bill of evidence, and no bill

delivery of the same to appellee. of exceptions, the only question before

In March, 1920, R. D. Wilson died the court is, Does the petition herein

intestate, unmarried, and without state facts sufficient to support the issue, and thereafter appellant judgment?

qualified as his administrator. Harper v. Harper, 10 Bush, 447; This is an action by appellee on Helm v. Coffey, 80 Ky. 176; Henderson

that note, wherein she alleges there v. Dupree, 82 Ky. 678; Bobbitt v.

was a valuable consideration for the Blakemore, 153 Ky. 170, 154 S. W. 941; Myers v. Saltry, 163 Ky. 481, 173 S. W.

same, and in another paragraph 1138, Ann. Cas. 1916E, 1134.

that the consideration therefor was The promise of the plaintiff to marry

work and labor theretofore

berdefendant's intestate, R. D. Wilson, is a formed by her for Wilson, and an valuable consideration, and sufficient additional consideration was that, at to support the note sued on.

and before the execution thereof, 7 Cyc. 712-715; 9 Cyc. 320-323;

the plaintiff, at the special instance Jennings v. Anderson, 4 T. B. Mon. 445;

and request of said Wilson, had Crostwaight v. Hutchinson, 2 Bibb, 407, 5 Am. Dec. 619; Sanders v. Miller,

agreed and promised to marry him, 79 Ky. 517, 42 Am. Rep. 237; Prewit v.

and had been at all times thereWilson, 103 U. S. 22, 26 L. ed. 360; after, until the death of said WilHarrison v. Cage, 5 Mod. 411, 87 Eng. son, ready, able, and willing and Reprint, 736, 1 Langdell, Sel. Cas. desirous of complying with her Contr. 396; Holt v. Clarencieux, 2 said promise. There is, however, Strange, 937, 93 Eng. Reprint, 954, 1

no averment that the agreement to Langdell, Sel. Cas. Contr. 397; For

marry was to be carried out at any wood v. Forwood, 86 Ky, 114, 5 S. W. 361.

particular time or day, nor is there As shown by the evidence and found any allegation of failure or refusal by the trial court in his finding of upon the part of Wilson to comply facts, there was a constructive deliv- with their mutual promise then ery of the note sued on, to the plaintiff made to each other, nor that he volduring his lifetime, by defendant's in

untarily, by self-destruction or testate, R. D. Wilson.

otherwise, placed it out of his power Meeker v. Shanks, 112 Ind. 207, 13 N. E. 712; Hensley v. Tuttle, 17 Ind.

to comply with his agreement. App. 253, 46 N. E. 594; Re Reeve, 111 The answer denied the delivery Iowa, 260, 82 N. W. 912; School Dist. of the note to the plaintiff, denied 1. Sheidley, 138 Mo. 672, 37 L.R.A.

the same was executed in consid406, 60 Am. St. Rep. 576, 40 S. W. 656;

eration of work or labor theretoWood v. Flanery, 89 Mo. App. 632;

fore performed, and affirmatively Rowan v. Chenoweth, 49 W. Va. 287, 87 Am. St. Rep. 796, 38 S. E. 544;

averred that the same was wholly Rabasse's Succession, 49 La. Ann. without consideration. 1405, 22 So. 767; O'Neal v. Sovereign By agreement a jury trial was Woodmen, 130 Ky. 68, 113 S. W. 52.

waived, and the action tried by the Turner, C., filed the following judge of the court, and the plainopinion:

tiff requested the court, at the conOn the 17th day of January, 1920, clusion of the trial, to separate his R. D. Wilson executed his note, pay- findings of fact and his conclusions able to appellee one day thereafter, of law. Accordingly the court, befor $5,000, in consideration of their fore entering judgment, found the mutual promises to each other, then facts to be (1) that the consideraand theretofore made, to marry. tion for the execution of the note

He retained the actual custody of was that at the time and prior the instrument, and it remained in thereto, and continuously there

34 A.L.R.-6.

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