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Page:Harvard Law Review Volume 2.djvu/39

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it mu«t now be read and understood, is an ordinary action on the case for a tort, in which the plaintiff must show damage resulting to him, more or less directly, from a wrongful act of the defendant.

In Lumley v. Gye the report states that special damage was alleged, but the case does not show what the special damage was. Neither in that case nor in Bowen v. Hall does it appear that there was any damage beyond the breach of the contract ; and, in Bowen v. Hall, at least, the opinion of the court does not require the plaintiff to prove any damage which could not be assessed in an action for breach of the contract itself. The mere breach of the contract by the obligor supplies to the obligee the element of damage which is necessary to support an action of tort.^ Such damage is, to be sure, the direct act of the party who breaks the contract, but the defendant is chargeable therefor, upon the ground that he has done an act which was likely to result in a breach of contract, and consequent damage to the plaintiff ; and he is liable for the probable consequences of his act, even though the wrongful act of another must intervene to cause the damage.^

But what is the wrongful act of which the plaintiff complains ? An act cannot be said to be wrongful unless it is in violation of some right in the plaintiff, or of some duty owed by the defendant to the plaintiff. A person who enters into a contract with another, acquires as against that other a right to performance of the con- tract according to its terms, or to damages for non-performance. Those are the only rights created by the contract ; and, from the point of view of contract, those are the only rights which the obligee acquires. But the court, in Lumley v. Gye, announced the principle that the mere existence of the contract imposed upon all third persons who knew of its existence, a duty to forbear from

1 One effect of the decision in Lumley v. Gye is to give the plaintiff two causes of action, one in tort and the other in contract, for what may be substantially the same damage. As the causes of action are distinct and consistent, the plaintiff is not obliged to elect, and a recovery upon one cannot be a bar to an action upon the other ; but the plaintiff is not entitled to double compensation ; and, it would seem, in the absence of direct authority, that an actual recovery of damages in one action ought to be admissible in evidence to reduce damages in the other. See, however, "Bird «/. Randall, i W. Bl. 373, 387 ; Thompson v. Howard, 31 Mich. 309.

^ In this aspect the case of Lumley v. Gye is opposed to Vicars v. Wilcocks, 8 East, I, which held that the wrongful act of a third person in discharging the plain- tiff from his employ, in consequence of words uttered by the defendant, did not con- stitute such special damage as would make the words actionable ; but that case has been questioned (see Lynch v. Knight, 9 H. L. Cas. 577), and the decision in Lumley v^ Gye is more in hannony with the general rule of damages, both in contract and tort