and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train without any contract at all (b). Evidently the plaintiff in a case of this kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort; at the same time the rule that the defendant's liability must not be increased by varying the form of the claim is not here applicable, since the plaintiff may rely on the tort notwithstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it.

Contract" implied in law" and waiver of tort. On the other hand we have cases in which an obvious tort is turned into a much less obvious breach of contract with

own money: could it be argued that the master had no contract with the company?

(b) Marshall v. York, Newcastle & Ber

wick R. Co. (1851), 11 C. B. 655, 21 L. J. C. P. 34; approved by Blackburn J. in Austin v. G. W. R. Co., note (v), p. 657.

Numerous decisions

Contract" implied in law" and waiver of tort. in the United States hold that assumpsit cannot be maintained unless the property of which the plaintiff was deprived has been converted into money. Noyes v. Loring, 55 Me. 408; Miller v. King, 67 Ala. 575; Jones v. Hoar, 5 Pick. 285; Sanders v. Hamilton, 3 Dana, 550; Barlow v. Stalworth, 27 Ga. 117; Willett v. Willett, 3 Watts, 277; Mann v. Locke, 11 N. H. 246; Smith v. Jernigan, 83 Ala. 256; 3 So. Rep. 515; Saville v. Welch, 58 Vt. 683; Miller v. King, 67 Ala. 575; Morrison v. Rogers, 3 Ill. 317; Emerson v. McNamara, 41 Me. 565; O'Reer v. Strong, 13 Ill. 688; Wagner v. Peterson, 83 Pa. St. 238; Pearsoll v. Chapin, 44 Pa. St. 9; Township of Buckeye v. Clark, 90 Mich. 432; 51 N. W. Rep. 528; Elliott v. Jackson, 3 Wis. 649; Bethlehem v. Perseverance Fire Co., 81 Pa. St. 445; Pike v. Bright, 29 Ala. 332; Hawk v. Thorn, 54 Barb. 164; Stearns v. Dillingham, 22 Vt. 624; Carleton v. Haywood, 49 N. H. 314; Isaacs v. Herman, 49 Miss. 449; Guthrie v. Wickliffe, 1 A. K. Marsh. 83.

But other cases hold that if the defendant has in any manner converted the property to his use, suit on an implied contract may be maintained. Evans v. Miller, 58 Miss. 120; Budd v. Hiler, 27 N. J. 43; Welch v. Bagg, 12 Mich. 42; Norden v. Jones, 33 Wis. 600; Baker v. Cory, 15 Ohio, 9; Labeaume v. Hill, 1 Mo. 42; Hill v. Davis, 3 N. H. 384; Bowen v. School

the undisguised purpose of giving a better and more con-
venient remedy. Thus it is an actionable wrong to retain
money paid by mistake, or on a consideration which has
failed, and the like; but in the eighteenth century the fiction
of a promise "implied in law
implied in law" to repay the money so
held was introduced, and afforded " a very extensive and
beneficial remedy, applicable to almost every case where
the defendant has received money which ex aequo et bono
he ought to refund" (c), and even to cases where goods
taken or retained by wrong had been converted into money.
The plaintiff was said to "waive the tort" for the purpose
of suing in assumpsit on the fictitious contract. Hence the
late Mr. Adolphus wrote in his idyllic poem "The Cir-
cuiteers":

"Thoughts much too deep for tears subdue the Court
When I assumpsit bring and godlike waive a tort

(d).

This kind of action was much fostered by Lord Mansfield, whose exposition confessed the fiction of the form while it justified the utility of the substance (e).

Implied warranty of agent's authority (Collen v. Wright). Within still recent memory an essentially similar fiction of law has been introduced in the case of an

(c) Blackst. iii. 163. (d) L. Q. R. i. 233.

(e) Moses v. MacFerlan, 2 Burr. 1005; cp. Leake on Contracts, 1st ed. 39, 48.

Me. 319; Floyd v. Wiley, 1

Distr., Mich. 149; Webster v. Drinkwater,
Mo. 643; Fiquant v. Allison, 12 Mich. 328; Ford v. Caldwell, 3 Hill, 248;
Tightmeyer v. Mongold, 20 Kan. 90; Fuller v. Duren, 36 Ala. 73.

Implied warranty of agent's authority. In the case of Jefts v. York (10 Cush. 395; 50 Am. Dec. 791) the court said: "If one falsely represents that he has authority, by which another, relying on the representation, is misled, he is liable; and by acting as agent for another, when he is not, though he thinks he is, he tacitly and impliedly represents himself authorized without knowing the fact to be true, it is in the nature of a false warranty, and he is liable. But in both cases his liability is founded on the ground of deceit, and the remedy is by action a tort."

ostensible agent obtaining a contract in the name of a principle whose authority he misrepresents. A person so acting is liable for deceit; but that liability, being purely in tort, does not extend to his executors, neither can he be held personally liable on a contract which he purported to make in the name of an existing principal. To meet this difficulty it was held in Collen v. Wright (f) that when a man purports to contract as agent there is an implied warranty that he is really anthorized by the person named as principal, on which warranty he or his estate will be answerable ex contractu. Just as in the case of the old "common counts," the fact that the action lies against executors shows that there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action, with a remedy upon either at the plaintiff's election.

We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties.

Concurrent causes of action against different parties in contract and in tort. (b) There may be two causes of action with a common plaintiff, or the same facts may give

(f) Ex. Ch. (1857), 8 E. & B. 647, 27 L. J. Q. B. 215.

See Duncan v. Niles, 32 Ill. 532; Taylor v. Shelton, 30 Conn. 122; Long v. Colburn, 11 Mass. 97; 6 Am. Dec. 160; Draper v. Massachusetts, etc., Co., 5 Allen, 339; Patterson v. Lippincott, 47 N. J. L. 457; 1 At. Rep. 506; 54 Am. Rep. 178; Ballou v. Talbot, 16 Mass. 461; 8 Am. Dec. 146; Trowbridge v. Scudder, 11 Cush. 83; Sherman v. Fitch, 98 Mass. 63; Bartlett v. Tucker, 104 Mass. 340; 6 Am. Rep. 240; Tucker Mfg. Co. v. Fairbanks, 98 Mass. 105; Johnson v. Smith, 21 Conn. 627; Noyes v. Loring, 55 Me. 408; McCurdy v. Rogers, 21 Wis. 197; 91 Am. Dec. 468; Warren v. Banning, 67 Hun, 649; 21 N. Y. S. Rep. 883; Porter v. Day, 44 Ill. App. 256; Neufeld v. Beidler, 37 Id. 34; Cole v. O'Brien, 34 Neb. 68; 51 N. W. Rep. 316; Farmers' Co-Op. Trust Co. v. Floyd, 47 Ohio St. 525; 26 N. E. Rep. 110.

Z. a remedy in contract against A. and also a remedy in tort against B.

Dalyell v. Tyrer. The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for a day. The plaintiff held a seasonticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hurt. He sued not the lessee of the ferry but the owners of the hired vessel; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry; and the defendants would be answerable for their negli gence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in exercise of a right acquired by contract upon a consideration paid to some one else (g).

Foulkes v. Met. Dist. R. Co. The latest and most authoritative decision on facts of this kind was given by the Court of Appeal in 1880 (h).

(g) Dalyell v. Tyrer (1858), E. B. & E. 899, 28 L. J. Q. B. 52.

(h) Foulkes v. Metrop Dist. R. Co., 5 C.

P. Div. 157, 49 L. J. C. P. 361. Cp. Berringer v. G. E. R. Co. (1879), 4 C. P. D. 163, 48 L. J. C. P. 400.

Concurrent causes of action against different parties in contract and in tort. Sustaining the proposition (b) stated in the text it was held in Kennedy v. McKay (43 N. J. L. 290; 39 Am. Rep. 581) that an innocent vendor cannot be sued in tort for the fraud of his agent in effecting a sale. "In such a juncture the aggrieved vendee has, at law, two and only two remedies; the first being a rescission of the contract of sale and a reclamation of the money paid by him from the vendors, or a suit againt the agent, fourded on the deceit."

The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuitable to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff's ticket had been issued: the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The District Company received him as a passenger in their train, and were bound to provide carriages not only safe and sound in themselves, but safe with reference to the permanent way and appliances of the line. In breach of this duty they provided, according to the facts as determined by the jury, a train so ordered that "in truth the combined arrangements were a trap or snare," and would have given the plaintiff a cause of action though he had been carried gratuitously (i). He had been actually received by the defendants as a passenger, and thereby they undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey.

Causes of action in contract and tort at suit of different plaintiffs. (c) There may be two causes of action with a common defendant, or the same act or event which

(i) Bramwell L. J., 5 C. P. Div. at p. 159. See the judgment of Thesiger L. J. for a fuller statement of the nature of the duty. Comparison of these two

judgments leaves it capable of doubt whether the defendants would have been liable for a mere non-feasance.

Causes of action in contract and tort at suit of different plaintiffs. In Ames v. Union Railway Company (117 Mass. 541), under the rule quod servitum amisit, the right of a master to recover for a personal injury to his apprentice was sustained. See Woodward v. Washburn, 3 Denio, 369; Kennedy v. Shea, 110 Mass. 147.