The question for the opinion of the Court was whether this JOHNSON ruling was correct in point of law. 1869 V. SKAFTE. R. G. Williams, for the defendant. The question is, whether the plaintiff's claim is barred by the order of discharge. It is a claim proveable under s. 153, and therefore barred. The action is brought upon an implied contract for quiet enjoyment and to indemnify the tenant against the acts of the superior landlord. The action is founded on an implied promise, and the precedent in Bullen & Leake, p. 154, is framed on a contract of indemnity. Crampton v. Walker (1) also shews that assumpsit in the proper form of action. Under s. 153, if the demand in the nature of damages be one which cannot otherwise be ascertained, the amount of damages is to be assessed by a jury, and is then proveable under the bankruptcy; if the debt is proveable, it is barred by the order of discharge. It has been held that where a creditor has a claim under s. 153, and does not choose to prove under that section, his claim is barred: Saunders v. Best. (2) That section provides that the person entitled to the benefit of a contract mentioned in that section may, if he think fit, apply to the Court to set a value upon his interest, and the Court is to ascertain the value, and admit the person to prove the amount. Although the words are permissive, it was yet decided that it was obligatory on the creditor to prove. Section 153 ought to receive the same construction, and it would then be imperative on the plaintiff to proceed under that section; and if he did not, the order of discharge would be a bar to his recovering. Hoggarth v. Taylor (3), Sharland v. Spence (4), Robertson v. Goss (5), decided that claims for unliquidated damages were not proveable under deeds of arrangement. Those cases are therefore distinguishable. Hoggarth v. Taylor (3) was an action for a wrongful dismissal, and the Court decided that the special terms of the deed did not apply to such a case. In Sharland v. Spence (4) the action was brought for a breach of contract for not delivering goods, to which a deed of arrangement was pleaded, assigning all the property of the debt to trustees, to be administered as if the (1) 3 E. & E. 321; 30 L. J. (Q.B.) 19. (2) 17 C. B. (N.S.) 731. (3) Law Rep. 2 Ex. 105. debtor was adjudged bankrupt. It was contended, on the authority of Wood v. De Mattos (1), that "creditors" under s. 192 included persons who could prove in bankruptcy; that the plaintiff was a creditor, and his debt was therefore barred, but the Court decided otherwise. No doubt that case goes the length of deciding that even in bankruptcy the debt would not have been barred. But in Ex parte Wilmot (2), Lord Chelmsford, C., says that "this section is confined to cases of bankruptcy, and therefore it must be wholly inapplicable to trust deeds, unless extended by other sections of the Act;" and Turner, L.J. (3), says: "As to Wood v. De Mattos (1), I hardly think that the learned judges who decided that case would have meant their observations to extend to claims for unliquidated damages which were in no way under their consideration. It has not escaped my attention that the conclusion at which I have arrived makes a distinction between trust deeds and bankruptcy, and will leave the debtor liable for unliquidated damages notwithstanding the provisions of s. 153; but I see no reason why this may not be the case, and may not have been intended, as the debtor and creditors might, if he and they were willing, have come to an arrangement with such claimants; and if they were not willing, it is difficult to see why they ought to be bound when they would not have the benefit of the administration of the assets in bankruptcy." It would appear from that case that there is a distinction in applying this section to cases of bankruptcy and deeds of arrangement. Robertson v. Goss (4) carries the matter no further, for that was decided on the authority of Sharland v. Spence. (5) Wheeler, for the plaintiff. A demand proveable under s. 153 so as to be barred by the order of discharge must be a demand arising out of an express contract. Here the action is founded on a breach of duty arising out of the relation of the parties, and is an action of tort: Tattan v. Great Western Railway Company. (6) Damages resulting from torts are said, in Griffiths and Holmes on Bankruptcy, vol. i. pp. 588, 589, not to be proveable under this section, which extends only to cases of damages upon breaches of 1869 JOHNSON v. SKAFTE. 1869 JOHNSON v. SKAFTE. contract, leaving damages in cases of tort exactly as they were before the statute. Littledale, J., in Burnett v. Lynch (1), says: "Where there is an express promise, and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where from a given state of facts the law raises a legal obligation to do a particular act, and there is a breach of that obligation and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded on tort is the more proper form of action." The words of the section are "contract or promise," so that "contract" is controlled by the word "promise," and means contracts strictly so called, and not implied promises to indemnify for a breach of duty. Further, the section applies only to admitted breaches of contract. The case here states, that, in addition to the defence raised by the defendant on the merits, it was contended that the plaintiff's right of action for damages was barred. Lord Chelmsford, C., in Ex parte Wilmot (2), says: "The section seems to apply only to cases where the bankrupt admits the breach of his contract or promise, but requires the amount of the damages to be proved against him, for it speaks of the assessment of the damages as if the breach of contract or promise was not in question." Neither has there been any assessment of damages, which is a condition precedent to the proof of the demand. Robertson v. Goss (3), Hoggarth v. Taylor (4), Sharland v. Spence (5), are authorities that the creditor is not bound to avail himself of s. 153, and that the order of discharge is no defence to an action for unliquidated damages. LUSH, J. This case has been very ably argued. At one time I thought it presented great difficulty, and if we had to decide it on some of the grounds which have been argued, I confess I should have found great difficulty in coming to a conclusion one way or the other. But I am of opinion that we ought to decide it in favour of the plaintiff on the ground that the liability of the (1) 5 B. & C. 589, 609. (2) Law Rep. 2 Ch. App. at p. 799. (3) Law Rep. 2 Ex. 396. (4) Law Rep. 2 Ex. 105. (5) Law Rep. 2 C. P. 456. v. SKAFTE. defendant is not a liability contemplated by s. 153 of the Bank- 1869 ruptcy Act, 1861 (24 & 25 Vict. c. 134). Looking at the cases JOHNSON which preceded this enactment, I have no doubt it was intended to apply to express contracts for a breach of which the damages had not been ascertained at the date of the bankruptcy. It applies only to contracts popularly so called. Is this a contract of this description? I am clearly of opinion it is not. It is a claim for damages caused by a distress levied on the plaintiff's goods by the superior landlord for rent which the defendant had omitted to pay. The action is not founded on an express contract of the defendant to pay the rent. It is founded on a liability arising out of the relation of the parties from which the law implies a contract, and the plaintiff can sue in assumpsit for this breach of duty on the part of the defendant. Though for the sake of convenience it is called a contract, it is not one within s. 153, which contemplates only express contracts. HAYES, J. I am of the same opinion. Section 153 was chiefly passed with reference to mercantile contracts. A good illustration of the law on this point prior to the passing of that enactment is given in a note to Chitty on Contracts, 7th ed. p. 177, note (y): "Formerly damages, which were in their nature unliquidated, and which could be ascertained only by a jury, and had not been ascertained at the time of the bankruptcy, could not be proved under it, although the right to recover them was founded on a contract: Green v. Bicknell. (1) And therefore where a person who had contracted for a certain quantity of oil to be delivered to him at a future day at a certain price became bankrupt before that day arrived and obtained his certificate, it was held that he was nevertheless liable to an action for not accepting and paying for the oil : Boorman v. Nash." (2) That state of the law was supposed to be a great grievance to the bankrupt, and it is now remedied by s. 153. This is a contract of a description totally different to that contemplated by that section. Here the contract is one arising out of the relation of landlord and tenant, and the action is accurately stated in the case to be "brought to recover compensation for the injury and loss sustained by the plaintiff in consequence of the (2) 9 B. & C. 145. (1) 8 Ad. & E. 701. 1869 JOHNSON defendant's wrongfully allowing certain rent payable by him as a tenant of a warehouse to be in arrear and unpaid." This is a claim founded on an implied contract, and not within s. 153. July 3. Attorney for plaintiff: Chinery. Judgment for the plaintiff. Attorneys for defendant: Underhill & Field. PLAYFORD v. THE UNITED KINGDOM ELECTRIC TELEGRAPH Negligence-Telegraph Company-Liability for Mistake in Message-Privity of Contract. The plaintiff, a merchant in London, having a cargo of ice at Grimsby, wrote and requested R. & H. at Hull to make an offer for it by telegraph. R. & H. sent by the defendants' telegraph a message: "We can give you 23s. for cargo now at Grimsby ;" and paid them for the transmission. By the custom of the ice trade, if an offer by telegraph is accepted, the vendor pays the vendee the cost of the message. The message was misread by the defendants' clerk in London, and was forwarded to the plaintiff—“We can give you 27s.," &c. The plaintiff sent the cargo round to Hull; but R. & H. refused to accept the ice except at 23s. The plaintiff brought an action against the defendants for the consequent damage : Held, that the defendants' liability arose only from contract; that as the message was sent by R. & H. on their own account and not on behalf of the plaintiff, there was no privity between the plaintiff and the defendants, and the fact, that in the event of the plaintiff accepting the offer there was an implied understanding that he would reimburse R. & H. the cost of the message made no difference; and that the plaintiff could not maintain an action against the defendants for their negligence. CASE stated without pleadings. 1. The plaintiff is a merchant in London and deals in ice. The defendants are an electric telegraph company, limited, incorporated under the Joint Stock Companies Acts, 1856 and 1857, and in the year 1862 they obtained an Act of Parliament, 25 & 26 Vict. c. cxxxi. (local and personal) to enable them to carry on the works and business of an electric telegraph company. (1) (1) The preamble of the Act, and ss. 4, 61, and 75, were the only parts referred to in the argument: "Whereas under the provisions of the Joint Stock Companies Act, 1856 and 1857, a comany has been incorporated called the |
