Hammond v. Hussey

POSTER, J. The substance of the plaintiff’s declaration is, that the school committee employed the defendant to examine candidates for admission to the high school, and to report upon their qualifications; that the defendant voluntarily undertook to make such examination; that he examined the plaintiff, and found him to possess the requisite qualifications; but, with intent wrongfully to exclude the plaintiff from the school and to deprive him of its benefits, maliciously and falsely reported to the committee that he was not qualified ; and, by reason of this malicious and false representation, the 'plaintiff was excluded from the school and lost its benefits. The declaration, therefore, charges upon the defendant a wilful and positive deceit and- fraud; and the suit is placed upon the general ground that, where one party sustains an injury by the malfeasance of another, the sufferer may maintain an action against the wrong-doer for redress. [49] The defendant contends that, upon this declaration, no suit can be maintained; because, assuming the allegations to be true, there is no contract, express or implied, between these parties; and without privity of contract there can be no liability. It is true that there was no express contract between the parties, and that the defendant acted in the performance of no public duty nor of any obligation to the plaintiff. It is also true that the plaintiff was under no obligation to submit himself to the defendant for examination. But the plaintiff contends that, notwithstanding the acts of both parties were voluntary, still, the undertaking of the defendant to examine the plaintiff, and the plaintiff’s submission of himself to that examination, created and established between them a contract, by implication of law; and that, such being the case, the defendant was under obligation, notwithstanding his work was gratuitous, to perform his undertaking with ordinary care and diligence — to make examination of the plaintiff in good faith, aiid truthfully to report the result to the committee. It may be doubted whether these considerations necessarily enter into the present inquiry. The case does not rest upon a charge of negligence nor of misfeasance at all; nor even of malfeasance in the performance of any duty imposed by law or required by the terms of a contract; but the declaration charges a positive and wilful false representation, deceit, and fraud, whereby the plaintiff received damage. It is of the character of a declaration in slander, and would seem to be governed by the principles applicable to such a case. And although it may be said that the voluntary relationship which the parties assumed placed them iñ privity of contract, so that for negligence in the performance of the defendant’s undertaking, a fortiori, for fraud concerning it, he would be liable, in damages, in this action, still, it may be seriously questioned whether the alleged fraud and deceit, though perhaps connected with contract, by implication of law, is necessarily affected by, or at all dependent upon, the existence of such contract. What difference does it make whether the defendant, in the perpetration of a malicious fraud and falsehood, such as the demurrer admits, violated an express or an implied contract, or any duty resulting from his relation either to the plaintiff or to the school committee; or, whether, as a mere stranger, in law, he achieved the wrong and caused the damage ? Does not the general and simple rule apply, that, where a party sustains an injury by the wilful wrong of another, the sufferer may have his action against the wrong-doer? See Mayor of Albany v. Cunliff, 2 Comst. 180; Pasley v. Freeman, 3 Term 51; S. C. 2 Smith’s L. C. 137, 138; Willink v. Vanderver, 1 Barb. 599; Watson v. Poulson, 7 Eng. L. & Eq. 585; Salem Bank v. Gloucester Bank, 17 Mass. 1. But without placing the decision of the questions before us upon these grounds, we have no difficulty nor hesitation in disposing of them by the application of the principles so well settled in Coggs v. Bernard, 2 Ld. Raym. 909—1 Smith’s L. C. *82. As all lawyers know, it was there held that “ if a man undertakes [50] to carry goods safely and securely, be is responsible for any damage they may sustain in the carriage through his neglect, though he was not a common carrier, ánd was to have nothing for the carriage.” The analogy is obvious, and the "principle evolved, and by the application óf which this case is to be determined, is, that, — The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. Notes to 1 Smith L. C. 254; Wilkinson v. Coverdale, 1 Esp. N. P. Rep. 74; Doorman v. Jenkins, 2 Ad. & E. 256; 1 Pars. Con. (5th ed.) 447, and note w. By this rule, a gratuitous and voluntary agent, who has no public or official duty to perform, but who, nevertheless, undertakes gratuitously to do a particular service requiring the trust and confidence of another, though the degree of his responsibility is greatly inferior to that of a hired agent, is yet bound not to be guilty of gross negligence. Prof. Parsons expresses the rule in more broad and general terms, thus : “ If a person makes a gratuitous promise, and then enters upon the performance of it, he is held to a full execution, of all he has undertaken.” ’ It is. unnecessary to indorse so general a proposition without qualification or limitation; but it is sufficient to hold that if a voluntary agent, without compensation, is accountable for the consequences of his gross negligence, much more should he be held answerable for wilful and malicious fraud and wrong in connection with his assumed undertaking. Questions involving the principle under consideration seldom arise except in the case of bailments, but the principle is broad enough to include the subject of the present inquiry. The demurrer is overruled.