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be clear. A contract, even under seal, however, has been set aside by a later oral agreement to do so, when the oral agreement has already been executed. Nevertheless, when any contract is to be discharged by a new contract or agreement, the latter ought to be of equal dignity with the original.
The careful engineer will see to it that any supplementary agreements are clear, that proper evidence of them exists, and that such agreements are in all respects valid and legal.
REMEDIES Remedies for Breach. For a breach of contract there may be several remedies. Sometimes the breach operates as a discharge of the innocent party, and this is sufficient. Often money damages to the party injured, are the remedy to be pursued in a suit at law. Sometimes neither of these remedies is sufficient, and a suit in Equity is brought to secure specific performance of the contract. A later chapter will be devoted to Equity.
Law of Torts. The principle underlying the law of torts has been well stated by Judge Cooley :
“The maximum benefit of which government is capable is attained when individual rights are clearly and justly defined by impartial laws, which impose upon no one any greater restraint than is essential for securing equivalent rights to all persons, and which furnish for the rights of all an adequate and equal protection.”
Therefore the rights of one can be secured only by imposing upon others the duty to observe those rights. So it has been said:
“Every right is accompanied by a duty."
Sometimes the duty is more evident, but sometimes the right. A somewhat similar point of view is that:
“The Common Law is generally said to consist in the established usages of the people, by which their respective rights are recognized and limited, and to which they are expected to conform in their dealings."
Definition. More specifically a tort may be defined as:
"An act or omission which unlawfully violates a person's right created by law, and for which the appropriate remedy is a Common Law action for damages by the injured person.”
The right must not be one conferred directly by the terms of a contract; that is taken care of under the law of contracts.
Crimes and Torts. It is further true that certain violations of the rights of others are classed as crimes. It is a fact that crimes and misdemeanors on the one hand, and torts on the other, are both offenses against the rights of others. There is this distinction, that a tort is an offense against an individual for which the individual should receive redress, while a crime or misdemeanor is an offense which affects the general community and which the public interest demands should be punished.
Classification of Torts. Efforts to systematize and classify torts have been somewhat unsatisfactory. It is sufficient for present purposes to state that while the Common Law does not attempt to right all wrongs, nevertheless it has from time to time recognized certain rights whose violation constitutes a breach of duty of a sort which may be designated a tort, for which a suit of damages may be maintained; and attention will be called to a number of torts of special interest to engineers.
Ways in which Torts Occur. There are various ways in which torts may occur. One may take unlawful action in the nature of tort, by : 1. Actually doing something he has no legal right to do, to the preju
dice or injury of another. 2. Doing something, not in itself unlawful, wrongfully by such means,
at such times, or in such manner that injury results to another. 3. Neglecting to do that which he ought to do, with the result that
another suffers injury. Under the first class come trespass, fraud, and others; under the second, under some conditions, nuisance; while negligence clearly comes under the second and third classes.
LIST OF TORTS An eminent writer has classified as torts the following: fraud; negligence; trespass; violation of right of support; violation of water rights ; nuisance; conversion; procuring refusal to contract; procuring breach of contract; infringement of patents, trademarks, and copyrights; escape of dangerous things; damage by animals; slander and libel; slander of title; malicious prosecution ; false imprisonment; seduction; assault and battery.
In many of these the engineer has little interest, and only a few will receive further attention here.
FRAUD Fraud or Deceit. A duty exists not to mislead another to his injury by false and fraudulent representations. The term “deceit" is often used instead of " fraud,” although fraud is a more common expression.
Requisites. In order to establish fraud before a court it is requisite that there has been :
1. A wrongful representation of fact; 2. which is material; 3. and with knowledge of its falsity; 4. with the intent that it should be acted upon by the other party; 5. who did act upon it; 6. to his damage; 7. while ignorant of its falsity.
1. Fact. The representation must be of a fact, not of opinion, nor a statement of the law unless made by a lawyer to one inexpert in the law. It may be made by a statement or an act. Silence will seldom have the effect of representation, although this is possible when happening in connection with other acts or statements. The representation must create a clear impression of a fact or facts.
2. Material. The fact must be material, and not incidental and unimportant.
3. Wilful. Knowledge of its falsity on the part of him who made the representation is also essential, and the law is satisfied if he made it either : (a) knowing it to be false; (b) recklessly without knowledge of its truth or falsity ; (c) positively, when he only believed it without positive knowledge; (d) when it was his duty to know and the facts were within his reach.
4. Intent. As to the intent that it be acted on, in case of a transaction between the two parties involved, no specific proof, probably, is necessary. In any case motive is not an essential element; neither is it required to show an intent to injure the other party; that it will benefit himself is sufficient.
5. Acted Upon. The representation of fact must have been acted upon; however base it may have been, it can give rise to no suit unless acted upon. The party aggrieved must also have been entitled to act upon it; a rank outsider, who properly is not connected with the transaction, is not a party entitled to act. Sometimes any one of a class or community may have seen fit to act on a proposition which has general application and interest, and thus properly be entitled to a remedy by suit in tort.
6. Injury. There must have been injury. A suit is not appropriate when there has been no injury (beyond a loss of faith in human nature). For example, a suit for fraud based upon a note obtained by fraud is not applicable until the injury has come through the payment of the note; or in connection with a contract until some injury or damage has resulted under the operation of the contract.
7. Ignorance. The party injured must have acted in ignorance of its falsity. He must have been deceived by the representations. If he had equal information as to the facts, or if he acted on the strength of other knowledge, he has no case. If there was no warranty (in the case of a sale) and the buyer had ample opportunity to discover the facts and did not, he has no case.
Equal Opportunity. With equal opportunity at hand for both parties, a lack of prudence on his own part prevents a man's maintaining his suit. When a man himself reads a contract, he is not in law deceived by it; when it was knowingly misread to him, he may be able to sustain a suit for fraud.
Engineer's Duty. Under paragraph 3 (d) the court would be likely to decide that when an engineer sets forth facts in a plan or specifications by which a contractor or other party interested is deceived, the case is one of constructive fraud, although the engineer had no actual intent to deceive; there was a duty upon him which he failed to observe to the contractor's injury; the railroad, the city, or his client is responsible for his tortious, his fraudulent act. A contract or specification, therefore, sometimes provides that the information shown on a plan shows the facts correctly so far as known, but that their accuracy is not guaranteed.
Torts in Contracts. In general it is said that a tort grows out of duties not created by contract, but it is nevertheless true that fraud is very often connected in some way with contract, and negligence often occurs in carrying out contracts.
It appears not to be important, in the case of a contract (be it a contract of sale or otherwise) whether the false representations form a part of the contract or were a part of the proceedings which induced the contract. Whether it be a misrepresentation or a warranty, the element of fraud in it will justify an action for tort, although in some cases a suit for breach of contract might be equally allowable. Fraud in making a contract will completely vitiate it.
Definition. A duty exists to exercise care to avoid doing injury to another. There is required that amount of care, skill, and diligence "which circumstances justly demand," and which a "reasonable, prudent, and careful ” man may be expected to exercise. An action or failure to act with such care, if injury results to another, constitutes negligence.
In the varied relations of life, and in the many positions in which one is placed, every one must exercise his rights in such fashion that others affected by such rights shall not be injured by his neglect to use due care. The continued possession of a right may be a sufficient exercise of the right to impose the duty.
Duties in Possessing Property. The possession of property, for instance, imposes duties. One must so employ his property as not to injure others; he must keep his premises in repair sufficiently so that those invited or licensed to enter, may not be injured by defects. In general he need not use great care to protect trespassers or even those invited or licensed to enter certain parts, if they wander into other parts of the premises; he may properly exercise his rights with little or no relation to these people; yet, if there is a reasonable possibility that a man licensed to enter may stray in unexpected directions, some care is necessary as to pitfalls or the like, so that this man exercising due care on his