predicated on the ground of his being chargeable with notice that children might enter it at any time.5

III. Liability of contractor to third persons: subject considered with reference to the effect of agreements creating specific duties.

$21. In general.

The fundamental question involved in all the cases considered in this division was whether, under the circumstances presented, it was or was not proper to apply the general doctrine, that only the parties to a contract are entitled to sue upon it. Without here undertaking a detailed treatment of this doctrine, some of its qualifications may be stated preliminary to a review of the decisions cited in the following sections.

One of them has relation to the remedial right predicated in favor of a person for whose benefit a contract is made. The limits of this qualification are indicated by the following statements:

"To give a third party who may derive a benefit from the performance of the promise an action, there must be, first, an intent by the promise to secure some benefit to the third party, and, second, some privity between the two, the promisee and the party to be benefited,—and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefits of the promise, or an equivalent from him personally. . . . A legal obligation or duty of the promisee to him (the plaintiff) will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A

5 Ptak v. Kuetemeyer (1924) 182 Wis. 357, 196 N. W. 855, 197 N. W. 363. 1. 2 Vrooman v. Turner (1877) 69 N. Y. 280, 25 Am. Rep. 195.

3 Syllabus of court in Styles v. F. R. Long Co. (1904; Err. & App.) 70 N. J. L. 301, 57 Atl. 448.

Styles v. F. R. Long Co. (1902; Sup. Ct.) 67 N. J. L. 413, 51 Atl. 710.

mere stranger cannot intervene, and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement." 1, 2

"In order that one not a party to a contract may maintain an action thereon, it must appear that the contract is made for him; it is not sufficient that he may be benefited by its performance." 3

"The rule entitling third parties to maintain an action for breach of the contract is limited to those for whose benefit the contract was made, and is not extended to third parties who, indirectly and incidentally, would be advantaged by its performance."4

"There must be a legal or equitable obligation or duty on the part of the promisee to the third party, for whose benefit the promise was made. That it would be a benefit to the promisee to have such a covenant enforced, or that there was a moral obligation of the promisee to the third party for whose benefit the promise was made, is not sufficient to allow the third party to maintain an action to enforce the promise."5

But an adoption of a more liberal theory than that which is indicated by the foregoing statements is evinced by a portion of the decisions discussed in this division.6

It is also well settled that the general doctrine is no obstacle to an action which is based upon the theory that the defendant, having undertaken to deal in a certain manner with the subject-matter of his agreement, incurred, independently of that agreement, the duty of protecting the claimant against such an injury as the one complained of. The existence of a

5 Haefelin v. McDonald (1904) 96 App. Div. 222, 89 N. Y. Supp. 395. 6 See especially § 26, infra.

7

In Marvin Safe Co. v. Ward (1884; Sup. Ct.) 46 N. J. L. 19, it was observed: "There is a class of cases in which a person performing service or doing work may be held in damages for injuries to third persons,

duty of this description may be predicated with reference to the principles thus explained by Parke, B., in the judgment which he delivered in the well-known case of Longmeid v. Holliday: 8 "There are other cases, no doubt, besides those of fraud, in which a third person, though not a party to the contract, may sue for the damage sustained, if it be broken. These cases occur where there has been a wrong done to that person, for which he would have had a right of action, though no such contract had been made. As, for example, if an apotheoccasioned by negligence or misconduct connected with the execution of the contract; but these are cases where the duty or liability arises independently of the contract." The court said that "the declaration, being founded on the contracts between the defendants, is not in proper form as against the defendant. If he is liable for the injury complained of, it must be upon the ground of some wrongful act or negligence-a tort, as distinguished from a mere breach of contract; and the declaration does not contain the necessary averments to charge a tortious act."

In Styles v. F. R. Long Co. (1904; Err. & App.) 70 N. J. L. 301, 57 Atl. 448, the court said: "These are cases where the existence of the contract subjects the parties to duties which are independent of the duty to perform the contract. The contract creates the situation which gives rise to the duty, very much as a conveyance of property imposes upon the grantee the duties of an owner of propertyduties which would not be increased or diminished by covenants inserted in his deed."

In Appleby v. State (1883; Err. & App.) 45 N. J. L. 165, it was observed: "A duty, the breach of which is an actionable wrong, may arise from a contract, or be imposed by positive law. independent of contract. In the first case, the party to contract only can sue; in the other case, any person injured may sue, if he be one of the class of persons for whose benefit the duty is imposed."

8 (1851) 6 Exch. 761, 155 Eng. Reprint, 752.

9 The cases cited in support of this statement are Pippin v. Sheppard (1822) 11 Price, 400, 147 Eng. Reprint,

cary administered improper medicines to his patient, or a surgeon unskilfully treated him, and thereby injured his health, he would be liable to the patient, even where the father or friend of the patient may have been the contracting party with the apothecary or surgeon; for, though no such contract had been made, the apothecary, if he gave improper medicines, or the surgeon, if he took him as a patient and unskilfully treated him, would be liable to an action for a misfeasance.9 . . A stagecoach proprietor who may have contracted with 512, and Gladwell v. Steggall (1839) 8 Scott, 60, 5 Bing. N. C. 733, 132 Eng. Reprint, 1283, 8 L. J. C. P. N. S. 361, 3 Jur. 535.

In the case of Langridge v. Levy (1837) 2 Mees & W. 519, 150 Eng. Reprint, 863, the same learned judge had previously reviewed certain earlier authorities in the following terms: "In Everard v. Hopkins (1615) 2 Bulstr. 332, 80 Eng. Reprint, 1164, the declaration stated that the defendant, being a common chirurgeon, had undertaken the cure of the plaintiff's servant, being hurt with a cart wheel. and that, by agreement between them. he was to have 5 marks for the said cure; and alleged that he was not only careless of the cure, but applied unwholesome medicines, etc., whereby the plaintiff lost the service of his servant for a year. It was held, on demurrer, that this count was good: and it was also said that the servant, though he could not sue upon the agreement, might have an action upon the case for the applying of unwholesome medicines to him. In Vin. Abr. Actions (Case, Deceit), O. b. 2, this case is put, which is also referred to in Everard v. Hopkins: 'If I deliver my horse to a smith to shoe, and he deliver him to another smith, who pricks him, I may have action upon the case against him, though I did not deliver the horse to him'-citing 12 E. 4, 13 a. pl. 9. Another case there stated is where a party delivers goods to A, who delivers them to B to keep for his use, and B wastes them; the owner may have an action on the case against B, though he did not deliver them to him. In these cases the only contract was with the original bailee; yet an action on the case was held maintainable against the second. . . . The

Another qualification is embodied in the statement of the supreme court of Massachusetts that, "if a person undertakes to do an act or discharge a duty by which the conduct of others

nearest case to the present is that of Witte v. Hague (1822) 2 Dowl. & R. (Eng.) 33. There, A., an engineer, having been employed by B. to erect a steam boiler and other apparatus on premises adjoining to the manufactory of C., and C.'s property having been injured in consequence of the explosion of the boiler by reason of the insufficiency of the materials of which it was composed, and it being found as a fact by the jury that A. was personally present, and that his servants had the management of the apparatus, at the time of the accident, it was held that C. might maintain an action on the case against A. for the injury; but the court intimated an opinion that if the jury had negatived the fact of A.'s management of the apparatus, though the accident arose from the imperfection of the materials, he would not have been primarily liable."

In Davidson v. Nichols (1866) 11 Allen (Mass.) 514, it was remarked: "The case at bar is distinguishable from actions brought against persons acting as surgeons or apothecaries for injuries inflicted on patients under their care. In such cases, although the contract of employment may not be made with the person injured, nevertheless the patient suffers directly and immediately from the acts of the party who treats him carelessly or unskilfully."

10 In Marvin Safe Co. v. Ward (1884; Sup. Ct.) 46. N. J. L. 19, the situation contemplated by the last sentence of the passage above quoted is thus adverted to: "A servant carried as a passenger, under a contract to carry made with his master, who purchased the ticket, may sue the carrier for personal injuries, or for the loss of his luggage, through the negligence of the carrier. Here the carrier's liability

may properly be regulated and governed, he is bound to perform it in such manner that those who rightfully are led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence." Some American decisions which, as it would seem, may be referred with equal propriety either to the doctrine thus laid down or to the principles expounded by Parke, B., are reviewed in the footnote. 12

11

does not depend upon the contract; the fact that the servant is a passenger casts a duty on the carrier to carry him and his luggage safely. He may sue in case for a breach of that duty, but he could not sue upon the contract." The authority cited is Marshall v. York, N. & B. R. Co. (1851) 11 C. B. 655, 138 Eng. Reprint, 632, 21 L. J. C. P. N. S. 34, 16 Jur. 24, which was decided in the same year as Longmeid v. Holliday (1851) 6 Exch. 761, 155 Eng. Reprint, 752, 20 L. J. Exch. N. S. 430, but by a different court.

11 Sweeny v. Old Colony & N. R. Co. (1865) 10 Allen (Mass.) 368, 87 Am. Dec. 644, where the defendant was held liable for injuries sustained by the plaintiff at a grade crossing, in consequence of his having, in reliance upon the flagman's signal, proceeded to pass over the track when a train was approaching. The doctrine thus enunicated was the answer of the court to the contention "that, if the defendants were held liable in this action, they would be made to suffer by reason of the fact that they had taken precautions to guard against accident at the place in question, which they were not bound to use, and that the case would present the singular aspect of holding a party liable for neglect in the performance of a duty voluntarily assumed, and which was not imposed by the rules of law."

12 In Bickford v. Richards (1891) 154 Mass. 163, 26 Am. St. Rep. 224, 27 N. E. 1014, where persons employed by one Powers to move a building which he had undertaken to move and fit up for the plaintiff were held liable for damage caused to the building by the manner in which they performed their work, the court argued thus: "It is immaterial whether the defendants are to be regarded as the servants and

Another qualification is that which is indicated by the following passage agents of the plaintiff, or as contractors under Powers, which the defendants contend was the case. In either instance, they owed to the plaintiff the duty of not injuring his property by their negligent or wrongful acts. If they were the plaintiff's servants, and their negligent actions caused injury to his building, they would be liable to him for the damage. If they

were contractors in possession of the building under Powers, or were his servants, it was also their duty not to injure the plaintiff's property by their negligent acts. Whether servants or contractors, they were liable for the damage caused to the plaintiff's property by their tortious acts or misfeasance. Hewett v. Swift (1862) 3 Allen (Mass.) 420; Wright v. Wilcox (1838) 19 Wend. (N. Y.) 343, 32 Am. Dec. 507. The plaintiff's right of action does not depend on the existence of a contract between himself and the defendants, as would be the case if he were suing for damages resulting resulting from some nonfeasance on their part, but on the fact that they have wrongfully and negligently done, or caused to be done, something to his property which has injured it. The gist of the action is the breach by the defendants of the duty which they owed to the plaintiff not to injure his property by any wrongful or negligent acts of theirs. That duty did not depend on, or grow out of, contract. Bretherton v. Wood (1821) 3 Brod. & B. 54, 129 Eng. Reprint, 1203; Smith v. Seward (1846) 3 Pa. St. 342; Coggs v. Bernard (1703) 2 Ld. Raym. 909, 92 Eng. Reprint, 107, 5 Eng. Rul. Cas. 247, 1 Am. Neg. Cas. 948. It may be that Powers is liable to the plaintiff for a breach of the contract caused by the acts of the defendants, and that they may also be liable to Powers for a breach of their contract with him; but that does not relieve the defendants from liability to the plaintiff for the damage to his property resulting from their negligent and wrongful acts. Stock v. Boston (1889) 149 Mass. 414, 14 Am. St. Rep. 430, 21 N. E. 871. Nor does it follow, as contended by the defendants, that because the plaintiff may not be liable for the acts of the defendants, as their master or otherwise, they are not liable to him. The two liabilities stand on different grounds."

in the opinion which, in a leading case, was delivered by Park, J., in be

In Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co. (1902) 71 N. H. 522, 60 L.R.A. 116, 53 Atl. 807, 13 Am. Neg. Rep. 363, it was held that the trial judge had properly overruled a demurrer to a declaration which, in substance, alleged that the defendant company had entered into a contract with the plaintiff's landlord to furnish at all times to the heating apparatus of the leased building sufficient steam to prevent the water in the pipes of an automatic sprinkler service from freezing; that this contract cast upon the defendant a duty to exercise care in the maintenance of a proper fire in the boilers which supplied the steam for heating the pipes; that on a certain night the defendant's servants carelessly permitted the fire in the boilers to go out; and that as a result of this negligence a sprinkler pipe in the attic of the building froze and burst, the consequence being that water escaped and flooded a lower story in which the plaintiff's goods were stored. court said: "In the attic of the Drake & Sanborn mill, for a lawful purpose, -protection against fire,―water was so confined and maintained that there was probability of injury to others if it escaped. Upon the parties responsible for the collection and maintenance of this water, the law imposes the duty of exercising care to prevent its escape. The care and control of the premises upon which the dangerous condition existed having been surrendered by the owners to others, the responsibility for the failure to exercise such care and control rests with the guilty parties, and not with the owners. Carter v. Berlin Mills Co. (1876) 58 N. H. 52, 42 Am. Rep. 572.

The

While under no obligation, so far as the plaintiffs were concerned, to furnish heat or hold back the water, they could not suddenly cease from their self-appointed task without care as to what might happen from such action. If the pipe in the attic froze because no steam was admitted to the steam pipes upon that floor, there would be no liability, because the defendants did not assume to so protect the pipes. As tending to show that the defendants were not in fact operating the heating plant for the protection of the occupants of the building, the contract would be, of course, material. If they were operat

half of the judges consulted by the House of Lords and was adopted as the basis of the judgment rendered: "We do not go to the length of saying that a stranger can take advantage of an agreement between A and B, nor even of a charter granted by the King, where no matter of general and public concern is involved; but where

ing it for the purpose of heating their own building merely, or portions of the Drake & Sanborn mill from which no harm came, they are not liable. The defendants, so far as the Drake & Sanborn Company were concerned, were the agency employed by them to operate the heating plant common to both mills. Though independent contractors, so that the Drake & Sanborn Company were not liable for their casual acts of negligence under the rule of respondeat superior, the ground of the defendants' liability to others is explained upon the analogy of the liability of a servant to third parties." On the second appeal a verdict in favor of the plaintiff was sustained. See (1904) 72 N. H. 546, 58 Atl. 242.

In McMahon v. Second Ave. R. Co. (1878) 75 N. Y. 231 (for facts see § 23, note 2, infra), one of the ways in which it was stated that a liability might arise was "from the defendant voluntarily interfering and undertaking to make the way safe, and so inefficiently doing it as to leave it unsafe, and, at the same time, so as to permit and tempt passage over it." The court said: "The defendant knew of the existence of the dangerous place. Grant that it was not bound to repair it; yet it had a right to make it passable for its own vehicles and teams. The exercise of this right carried with it a duty. In the exercise of it, it was bound not to harm others, or lead them to harm."

The doctrinal statement of the supreme court of Massachusetts in the Sweeny Case was the authority mainly relied upon in Miller v. International Harvester Co. (1920) 193 App. Div. 258, 184 N. Y. Supp. 91, in which it was held that a complaint was not demurrable, which alleged in substance that the plaintiff, an infant more than eighteen years of age, was employed by one G. as a farm helper; that the defendant, when it sold and delivered to G. a tractor, agreed with him "to teach, and did teach and in

that is the case, and the King, for the benefit of the public, has made a certain grant imposing certain public duties, and that grant has been accepted, we are of opinion that the public may enforce the performance of those duties by indictment, and individuals peculiarly injured, by action."13 The basic principle underly

struct, the plaintiff herein as employee of said G. in the operation of said tractor, for the purpose of enabling the plaintiff to operate said tractor;" that the defendant in teaching the plaintiff failed to inform him that if he touched a certain part of the tractor it would start, and that this starting might be prevented by means of the locking device; and that the plaintiff, while working, touched this part with his foot, so that the tractor started and crushed his foot. The opinion was expressed that an affirmative answer should be given to a question thus stated: "Does the sale of a tractor, with an agreement with the purchaser to teach an infant helper how to operate it, when the seller enters upon the work of teaching the helper in pursuance of the agreement, bring the seller and the servant into such relation as to make the seller liable to the servant of the purchaser for negligence in the performance of the work of teaching?" The court also relied upon the general doctrine laid down in Wittenberg v. Seitz (1896) 8 App. Div. 439, 40 N. Y. Supp. 899 (see § 19, supra), and upon the principle thus formulated in Smedes v. Bank of Utica (1823) 20 Johns. (N. Y.) 372, affirmed in (1824) 3 Cow. 662: "There is a well-settled distinction between actions for nonfeasance and for misfeasance. When one party intrusts the performance of a business to another who, without consideration, undertakes but wholly omits to do it, no action lies, notwithstanding the plaintiff may have sustained special damages; but if the party enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for the misfeasance."

Compare also Guardian Trust & D. Co. v. Fisher (1906) 200 U. S. 57, 50 L. ed. 367, 26 Sup. Ct. Rep. 186, reviewed in § 27, b, infra.

13 Lyme Regis v. Henley (1834) 1 Bing. N. C. 241, 131 Eng. Reprint,