CHAPTER XIII.

SPECIAL RELATIONS OF CONTRACT AND TORT. SECTION 2. DOUBLE RIGHT OF ACTION.

SHAW v. COFFIN.

(58 Me. 254.-1870.)

D. D. Stewart for the plaintiff.

William Folsom for the defendant.

APPLETON, Ch. J. The defendant, while a minor, having stolen money and other property of the intestate, which he converted into money, settled with him for the sums thus torticusly obtained, by giving his promissory note therefor.

This action is for the moneys stolen, and for the note given on settlement of the same.

The note given by the defendant, when a minor, has not been ratified. The note of an infant, given on the adjustment of an account against him, is voidable. It is equally voidable, though given on a settlement for damages arising from his torts. The defendant, having avoided his note by the plea of infancy, the plaintiff is remitted to his original cause of action, as existing before the settlement by the defendant.

It is well settled that an infant is liable in the appropriate form of action for his torts. He would, therefore, be held in an action of trover for money stolen.

Is an infant liable on assumpsit for money stolen, or for the proceeds of stolen property when converted into money? The thief of full age is so liable. The owner of property stolen, and converted into money by the thief, may obtain assumpsit against him for money had and received. (Howe v. Clancey,

53 Maine, 130; B. & W. R. R. Co. v. Dana, 1 Gray, 83.) The reasons upon which these decisions rest apply equally to the minor as to the adult. If the minor is liable for his torts, it is immaterial to him in what form of action recompense is sought. If for the purposes of justice the tort may be waived in the case of the adult, and assumpsit maintained, it can, to accomplish the same great purpose, be equally well waived as to the minor. It would be a reproach to the law, if a minor, when arrived to years of manhood, were to be allowed to escape from the payment of what is due, by the plea that he had stolen the money demanded of him when under age. In Walker v. Davis, 1 Gray, 506, Thomas, J., says: "The defendant obtained the possession of her (the cow) by fraud, a fraud to which infancy would constitute no defence. Supposing no contract to have been made, the plaintiff then had the election to bring his action for the tort, or, as the cow had been sold before the note became due, to waive the tort and bring assumpsit." In Towne v. Willey, 23 Vt. 359, referring to the liability of infants for torts, Redfield, J., in delivering the opinion of the court, says: "In all the cases, then, upon this subject, it will be found that the courts profess to hold infants liable for positive, substantial torts, but not for violations of contracts merely, although by construction the party claiming redress may be allowed, by the general rules of pleading, to declare in tort or contract at his election." The precise question here presented arose in Elwell v. Martin, 32 Vt. 217, and the court there held that the defendant was liable in assumpsit for money tortiously taken by him during his infancy.

The plaintiff proves a demand on 30th December, 1847, from which the defendant is liable to pay interest.

FOWLER V. WATER-WORKS Co.

(83 Ga. 219.-1889.)

BLECKLY, Ch. J. Fowler brought action against the Athens City Water-Works Company, making the following allegations in his petition: In August, 1882, the mayor and council of the city of Athens contracted with one Robinson . . . that he would furnish at all times for a consideration mentioned in the contract, all the water necessary for fire purposes; establish fire hydrants to the number of 55, and guarantee at all times a sufficient pressure to throw from any of these hydrants, through a one-inch nozzle and 50 feet of 21-inch hose, 5 streams of water to the height of 65 feet; that Robinson, for a valuable consideration in 1882, transferred this contract to the defendant; that the defendant is paid by a tax levied on the property of the citizens of Athens; that the petitioner, since 1882, has been a resident and a taxpayer of Athens, for many years owning a certain house and lot; that the defendant ran its mains along the street by his house and established near his house two fire hydrants; that in July, 1887, some of the outhouses on the lot caught fire without his fault; the fire extended to the main dwelling and all were consumed; that the alarm of fire was promptly responded to and the fire companies were on hand at a time when it could have been easily controlled, but there was so little pressure that the water would not go 10 feet beyond the nozzle, and was of no use in putting out the fire; that if proper pressure had been put on the fire could easily have been extinguished and the property saved. Damages were laid at $1,500. At the trial a contract corresponding with that described in the declaration was put in evidence. By it the city agreed to pay to Robinson, his successor or assigns, for 30 years from the completion of the water-works, as a rental for the use of the hydrants and for the supply of water for the purposes mentioned in the agreement, the sum of $3,000 annually. It was proved that the defendant had succeeded to the position of Robinson in the contract, and had received from the city rents accordingly, undertaking to carry out the terms of the contract. The occurrence of the fire, the

consumption of the plaintiff's buildings, his loss and the failure of the company to have a water supply on the occasion equal to that provided for by the contract, or any supply adequate to the exigencies of the fire, also appeared in evidence. The court on motion of the defendant ordered a nonsuit. This is the error complained of. . . .

In Robinson v. Chamberlain, 34 N. Y. 389, the duties of the contractor did not rest on contract alone, but were prescribed by statute. The court analogized his position to that of a public officer, in respect both to his duties and his powers. Stress was also laid upon his undertaking to repair a public thoroughfare (the canal), and that this was a public function formerly devolving on public officers. In Couch v. Steel, 3 E. & B. 402, the duty neglected was also imposed by statute. Such likewise was the duty in Atkinson v. Newcastle Co., L. R. 6 Ex. 404, which case was reversed on appeal (L. R. 2 Ex. Div. 441), the appellate court holding that under a proper construction of the particular statute involved the action would not lie. The court, composed of Lord Cairns, L. C., Cockburn, C. J., and Brett, L. J., intimated doubts as to the correctness of Couch v. Steel. In Met. Com. Casting Co. v. Ry. Co., 109 Mass. 277, the act complained of was a plain tort of the indirect kind, and no contract relation was involved. It was held in Willy v. Mulledy, 78 N. Y. 319, that the neglect of a duty imposed by statute would give a right of action to any person having a special interest in its performance, and injured by the breach. The present case is not based upon the breach of a statutory duty, but solely upon failure to comply with a contract made with the municipal government of Athens. To that contract the plaintiff was no party, and the action must fail for the want of the requisite privity between the parties before the court. A case directly in point is Davis v. Clinton Water Works, 54 Ia. 59. See also Nickerson v. Bridgeport II. Co., 46 Conn. 24.

There being no ground for recovery, treating the action as one ex contractu, is it better founded treating it as one ex delicto? We think not. The violation of a contract entered into with the public, the breach being by mere omission or non-feasance, is no tort, direct or indirect, to the private prop erty of an individual, though he be a member of the commu

nity and a tax-payer to the government. Unless made so by statute, a city is not liable for failing to protect the inhabitants against the destruction of property by fire. (Wright v. Augusta, 78 Ga. 241.) We are unable to see how a contractor with the city to supply water to extinguish fires commits any tort by failure to comply with his undertaking, unless to the contract relation there is superadded a legal command by statute or express law.

There was no error in granting the nonsuit.1

1 (Mott v. Water-Works, 48 Ks. 12; Britton v. Green Bay Water-Works, 81 Wis. 48; Eaton v. Fairbury Water-Works, 37 Neb. 546, accord. Cf. Le Lievre v. Gould, (1893) 1 Q. B. 491.) In Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 354, it is said: "It is too plain for discussion that the city of Puducah had the power, and did make the contract for the benefit of its inhabitants, and consequently, each one of them has a right to sue and recover for an injury caused by breach of it."