Non-existence of valid contract does not preclude action for negligence. sec 1043.

Liability of party to void contract affirmed in Roman law, sec 1044.

Party may recover back expenses on void contract, sec 1045.

And may recover damages, sec 1046.

Infants' liability to suits of this class, sec 1047.

So as to lunatics and drunkards, sec 1048.

Liability when contract is avoided from mistake as to object, sec 1049.

Party cannot take advantage of his own negligence of expression, sec 1050.

Redress for verbal mistakes, sec 1051.

Party employing an agent is liable for the latter's negligence, sec 1052.

Contributory negligence to be taken into account, sec 1053.

Agent liable for unauthorized action, sec 1054.

And so of parties advertising rewards, or making public offers, sec 1055.

And so of telegraph companies, sec 1056.

Sec 1043

It has been shown in a prior chapter that there are several lines of cases in which bargains which are on their face contracts are held to have no contractual force. A bargain made by an infant, for instance, may be repudiated by him when he arrives at full age.1 Proposals may be accepted in a sense so utterly different from that in which they were meant, that no contract between the parties can be held to exist.2 A party who negligently and erroneously supposes he is duly authorized to act for another cannot bind such other person by any contract, no matter how solemn.3 But though in such cases no contractual obligations are formed, the party in negotiating with whom another is thereby misled is liable to such other for the damages he sustains in consequence of the miscarriage of the negotiation. It is elsewhere seen that this has been held to be the case with regard to assertions of full age made by an infant to a party who has good reason to rely on the truthfulness of the assertions.1 We will now proceed to inquire how far such liability may be imposed on those by whose negligence in negotiations others are misled.2

Non-existence of valid contract does not preclude action for negligence.

1 Supra, sec 31.

2 Supra, sec 180 et seq.

3 Wh. on Ag. sec 454 et seq.

1 Supra, sec 53; infra, sec 1047.

2 Mr. Bigelow (Leading Cas. in Torts, 614) says: "A carriage-maker allows the plaintiff to buy a carriage with a view of effecting a sale; and, owing to negligence in its construction, the carriage 'breaks down, and injures the plaintiff. This is a good cause of action, and yet there was no contract." But does not a proposal to deliver on trial, when the thing is accepted on the condition designated by the owner, constitute a contract ? Waiving, however, this criticism, it is enough to say that where there is the fact that a conditional bargain is proposed and accepted, then damages may be obtained for the negligent breach of the contract.

Wherever a contract establishes a duty, then the party for whose benefit the duty is to be performed can sue for negligence in its performance. Wh. on Neg. sec 435; Addison on Torts-, Wood's ed. 527, citing Bowman V. Brown, 3 Q. B. 526.

" If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action, on the faith that the act will be duly and properly performed, shall not suffer loss or injury by reason of his negligence." Bigelow, C. J., Sweeney V. R. R., 10 Allen, 368; adopted by Hoar, J., in Coombs V. New Bedford Cord Co., 102 Mass. 5.72.

"I am, however, disposed not quite to acquiesce to the full extent in the proposition that a person is responsible for all the possible consequences of his negligence. I wish to guard against laying down the proposition so universally; but of this I am quite clear, that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result under ordinary circumstances from such misconduct." Pollock, C. B., Rigby V. Hewitt, 5 Exch. 243.

"Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties; but where the defendant has violated a duty imposed upon him by the common law, it seems just and reasonable that he should be held liable to every person injured whose injury is the natural and probable consequence of the misconduct. In our opinion this is the well-established and ancient doctrine of the common law, and such a liability extends to consequential injuries by whomsoever sustained, so long as they are of a character likely to follow and which might reasonably have been anticipated as the natural and probable result under ordinary circumstances of the wrongful act. This same rule of law is sanctioned and enforced in Rigby V. Hewitt, 5 Exch. 242;" McDonald V. Snelling, 14 Allen, 290.

The question in the text is discussed by Bahr, in Ihering's Jahr., vol. xiV. 393, in connection with the following case: A Cologne house sent to a tele-