Sec 1050

In the Roman law, a party who uses wrong words in an obligation he enters into is liable, in case he be relieved from the obligation in consequence of such mistake, for any damages his negligence may have iuflicted on the other party.6 In our own law, injustice is prevented in this respect in other ways. In the first place, a party seeking to rectify or rescind would not be heard unless he equitably reimburses the other party.7 In the second place, a party is estopped, as against bona fide purchasers or promisees, from setting up his own negligence.8 A party, for instance, who leaves a blank in a paper signed by him cannot complain if this blank is filled up by a party to whom he intrusts it in a way he did not intend.9 But aside from these remedies, a party who by his carelessness in dealing with another inflicts injury on such other, there being privity between the two, is liable for such injury.1 He may be liable on such negligence if sued by a party thereby damaged; or he may be precluded from recovering damages from other parties when the damage he complains of was induced by his own negligence.2

Party cannot take advantage of bis negligence of expression.

1 Supra, sec 282 et seq.

2 Ihering, op. cit. 388; see supra, sec 230.

3 See supra, sec 315.

4 See supra, sec 742 et seq. 5 See infra, sec 1054 et seq.

6 Ihering, op. cit. 390. 7 Supra, sec 285. 8 Supra, sec 262 a, 908. 9 See supra, sec 186, 202a, 688, 697 et seq., 795.

Sec 1051

Ihering supposes the case of two singers of the same name, one of whom the director of a theatre desires to engage. His letter, owing to his negligence, falls into the hands of the wrong party, who at once accepts the proposal. Supposing the two singers to have capacities utterly distinct, the one accepting being incapable of filling the part designed for the other, it is plain that there is here no contract for which a bill of specific performance would lie; nor would a salary meant for the one singer be recovered by the other. But while this is the case, it is equally clear that the director would be liable for any expenses to which the party addressed had been put by his negligence in addressing the letter. - In our own practice, a party who at another's request incurs certain expenses, is entitled, if a promise can be inferred from the facts, to be reimbursed.3 And, as we have seen, and will hereafter see more fully,4 a party who dealing with another misleads such other to the latter's injury by the negligent use of words, may be held liable for the damage thereby inflicted.8

Redress for verbal mistakes.

1 See Wh. on Neg. sec 780-793.

2 Infra, sec 1053. As illustrating estoppel by negligence in relation to negotiable paper may be noticed Foster V. Mackinnon, L. R. 4 C. P. 704, where the court said: " If a man write his name across the back of a blank bill, stamp and part with it, and the paper is afterwards improperly filled up, he is liable as indorser. If he write it across the face of the bill, he is liable as acceptor, when the instrument has once passed into the hands of an innocent indorsee for value before maturity, and liable to the extent of any sum which the stamp will cover." Where there is no stamp act, the liability is unlimited. See London Bank V. Wentworth, L. R. 5 Ex. D. 96, to the effect that a party may by negligence be precluded from taking advantage of the defence of forgery; and, to the same effect, see Rudd V. Matthews, Sup. Ct. Ky. 1881. That a party drawing a check carelessly binds himself to the bank, see Young V. Grote, 4 Bing. 253.

3 Supra, sec 707, 753, 1045.

4 Infra, sec 1054-6.

5 Ihering gives as a further illustration of the principle in the text a case in which an order was sent for an Indian-Root Lexicon, which had been advertised, under the impression that it treated of "roots" in the vegetable world. Supposing this mistake vitiated.