Sec 1047

That an infant may be made liable for negligence in so using his property as to injure another, cannot be quesant, in order to put some horses there which the plaintiff wished to dispose of at a fair held in the town. Soon after the horses arrived they were turned out of the stables in consequence of the defendant having also let the stables to another person, and as the defendant did not supply the plaintiff with other accommodation for the horses, the plaintiff was compelled to obtain it elsewhere. The plaintiff claimed damages for the breach of contract, and alleged that the horses were injured by being thus suddenly turned out of the stables and exposed to the weather while he was seeking other stables for them. The jury gave him 25/. for the loss consequent on his not having the use of the stables, and 50/. for the injury to the horses. It was held by the English court of appeal in 1881 (Brett, L. J., and Cotton, L. J., concurring, Bramwell, L. J., doubting), that the plaintiff was entitled to damages for the injury to the horses. Brett, L. J., said: "Since the decision in Hadley V. Baxendale, 9 Ex. 341; 23 L. J. 179, Ex., the question whether damage is too remote has in my opinion been one of the greatest difficulty. According to the rule in Hadley V. Baxendale it must be considered, first, whether the damage was the necessary consequence of the breach of contract, and then whether it was the probable consequence, and then whether it might reasonably be in the contemplation of the parties. The last two questions are really matters of fact, but the courts have to decide them as questions of law. The question here is, did the fact of the horses catching cold come within any part of the rule? It was not the necessary consequence of the defendant's breach of contract, but I should certainly say that it was the probable consequence if I had to decide the question, and I think it follows that it might reasonably have been in the contemplation of the parties. Here the jury found that the contract had been broken, and that the result of the breach was the damage which the plaintiff suffered. We are asked to say that this is unreasonable, and that the question ought not to have been left to the jury. Now let us consider the facts. The plaintiff brought his horses over from Ireland; he took stabling for twelve horses at Rugley, and arrived at Rugley during fair time, and went into the stables, the horses then having their clothes on. The defendant had let the stables to another man before the plaintiff's arrival, and the other man's horses were in the stables when the plaintiff arrived; thereupon the plaintiff turned those horses out and put his own horses into the stables. Afterward the man who owned the other horses returned, and with the assistance of a servant of the defendant he turned the plaintiff's horses out of the stables, and put his own horses in. No other stabling could then be found for the plaintiff's horses. The defendant knew that these horses had been brought by rail to the fair, and they were turned out hot from the stable. Any one who knew anything about horses would have known that there was a great probability that they would catch cold. So far from thinking as matter of law that this is not a probable consequence, I am convinced as matter of fact that it is. Then there is the decision in Hobbs V. London and S. W. R. Co., L. R. 10 Q. B. 111, which it is contended governs this case. As to that decision I can only say that if I tioned.1 "Were it not so, all that would be necessary to put an injurious agency or other invasion of the rights of others out of the reach of the law, would be to convey the property from which it springs to an infant. A mill-dam, for instance, is so negligently constructed as to flood a neighbor's fields, or a mine so negligently worked as to injure a mine on a lower level, or a building is so negligently constructed as to hurt a passer-by; and if infant owners were not responsible for such damage, not only would many injuries remain unredressed, but there would be a temptation to place all enterprises involving risks to society in the hands of infants. If, however, an infant is liable for negligent management of one kind of property, it is hard to see why he should not be made liable for negligent management of another kind of property. An obligation is as much a valuable thing as land; it is taxable; it has a local seat; the fact that it is voidable does not destroy liability for its misuse any more than the fact that a conveyance of land is voidable does not relieve a party in possession under a deed subsequently avoided from liability for injury to others caused by his mismanagement of the lands when in possession. It is objected, it is true, to this view, that if it be maintained, (1) an infant is virtually made liable on a contract, which is contrary to a settled rule of law; and (2) the protection the law affords to infants from improvident bargaining would be illusory. The first objection, as is well remarked by Ihering, rests on a petitio principii, since the very question at issue is whether the claim in litigation is contractual. If it is not, then it can be maintained, so far as the present objection is concerned, since an infant is beyond doubt liable in tort. As to the second objection., it is replied by Ihering that its force is very much diminished by the fact that the cases in which such suits could be set up are comparatively rare, and based on strong equities. We would have, at the outset, to put out of the question all cases in which the apfendant set up as a defence a custom of the Bristol Stock Exchange to sell shares without complying with the statute. It was held that such a custom was unreasonable and illegal, and was not binding on plaintiff, and, therefore, that the defendant was liable for the amount which plaintiff would have received for the shares if the contract of sale had been binding. Lord Coleridge, C. J., Brett, and Cotton, JJ., concurred, reversing in this point the ruling of Stephen, J.

Infants liable for negligence of this class acquiesce in it I cannot bring my mind to agree with it. There a man took tickets for himself and his wife by a midnight train to Hampton Court; his house was two miles off from Hampton Court; he was taken to Esher, which was between four and five miles from his home; could get no conveyance, and he and his wife had to walk home at night in the rain; his wife caught cold, and the judge said that was not the natural consequence of the railway company's breach of contract. Why was the damage there too remote ? Take the case of lodgings. Suppose the landlord turned his lodger out on a cold night in her nightgown; would it not be such a natural consequence as to make him liable if she were to catch cold ? If he used the least force, and she died, he would certainly be charged with manslaughter. If Esher were known to be a good station, and there had been accommodation at the station which the plaintiffs might have availed themselves of, it would have been their own fault if they had not done so; but there was no such accommodation at the station, they walked, and the wife caught cold. The judges, as a matter of fact and opinion, decided that this was so unnatural a consequence of the railway company's breach of contract that the question could not even be left to the jury. I confess I cannot bring my mind to the same conclusion. Here, however, there is a difference. People do walk home at night and not catch cold; it is not nearly so inevitable a consequence as that horses should catch hold if turned out as these were. There is a difference between turning horses out at night after a hot journey and leaving people to walk home at night. Still Hobbs V. London and S. W. R. Co. is so near the line that in any other case, unless the circumstances were exactly the same, I should distinguish it. I am therefore of opinion that the appeal ought to be allowed, and in so deciding we are not overruling Fry, J., except in mere form, for he only yielded to the decision of the queen's bench in Hobbs V. London and S. W. R. Co., and his own opinion was that the plaintiff was entitled to these damages." See discussion in Central Law Journal, June 24, 1881, p. 583.

In Neilson V. James, 46 L. T. N. S. 791, the liability of a party for negligence in contracting was incidentally affirmed by the English court of appeal. By an act of parliament (Leeman's act) contracts for sale of bank shares are null and void to all intents and purposes whatsoever unless the contract shall set forth in writing the shares by their numbers, or where there is no register of shares by distinguishing numbers, and the name of the registered proprietor of the shares. In the case before the court the plaintiff employed the defendant, a stock broker, to sell bank shares. The defendant agreed with a jobber to sell the shares to him, but did not comply with the provisions of the statute. Before the name-day the bank failed, and the jobber refused to take the shares. In an action for negligence in not making a binding contract for the sale of the shares, the depearance of the minor gives the party dealing with him ground to suspect his minority. Although an infant would be liable, on general principles, to a suit for negligence, yet when the basis of the suit is negligence in the defendant in permitting himself to be regarded as an infant, the plaintiff, who had reason to suspect such infancy, and did not inquire into it, would be barred by his contributory negligence from pressing his suit. The line of suits of this class would be contracted to the few cases in which an infant deals with a party bona fide, believing him to be of full age. If an infant as to such parties has certain prerogatives, then he is liable for the abuse of such prerogatives. If he can make a valid endorsement of negotiable paper,1 then he is liable for the negligent making of such endorsement. If he would have been liable on a contract supposing he was, what he appeared to be, of full age, then he is liable for negligence in case he negligently conceals the fact of his minority, the other party having no reason to suspect the truth.2

1 See Wh. on Neg. sec 310, 322.