41 N.J.L. 193 | N.J. | 1879
The opinion of the court was delivered by
This is a suit against an administratrix. Some of the counts in the declaration, which is demurred to, are founded on a breach of duty in the defendant’s intestate, as an attorney at law, in investigating the title and condition, with respect to encumbrances, of a certain property upon which the plaintiff was about to take a mortgage, and whereby the plaintiff lost the money invested by him. The other counts allege, as the gravamen of the action, certain false and fraudulent representations made by such intestate with respect to certain mortgages, in consequence 'of which the plaintiff put his money in them, and that siich securities proved worthless. .
The demurrer that has been put in to this declaration is intended to raise but a single question, which is, whether the causes of action thus stated will survive against the personal representative of the deceased wrongdoer.
The action as to form is in tort. I do not understand, from the brief of the counsel of the defendant, that it is contended that if the suit had been in the mode of an action ex contractu for the non-performance of the implied contract that the attorney would exercise due care and skill touching the business of his client, that such action would not have survived. Upon this point the law is settled by numerous decisions. In some of these the distinction, with respect to the capacity to survive, that exists between the forms of assumpsit and tort, is sharply
This same distinction, in this respect, between these two forms of action, is emphasized in several of the more recent decisions of the English courts. One of these is the case of Bradshaw and wife v. Lancashire and Yorkshire Railway Co., L. R., 10 C. P. 189, which was a suit ex contractu by an executrix for injuries inflicted on the testator, in consequence of which, after an interval, he had died, the purpose of the suit being to recover for medical expenses, and the loss that had been occasioned by the inability of the testator to attend to his business. The ground that was expressed for sustaining this action, which was admitted to be a novelty, was that all that was claimed by the plaintiff was compensation for the loss that had fallen on the personal estate, and, in form, the suit was for breach of contract, and the doctrine, that there could be no recovery at common law in such a proceeding, by
Up to this point in my remarks on this subject, my object has been to show that although at common law a certain class of actions ex contractu are possessed of the capacity to survive to the personal representative, that nevertheless this transmissible remedy is not a complete one; the importance of this circumstance will heréafter appear.
As has been already stated, the present áction is in tort, in part for fraud, and in part for a breach of the duty of "an attorney at law in not exercising dpe care and skill in the business of his client; and it cannot, therefore, be doubted that, by the more authority of the common law, the proceeding cannot be vindicated. Consequently, the only debatable question arising in this connection is with respect to the proper construction of sections four and five of the act concerning executors. Rev., p. 396.
These provisions are not strange to this court. They were considered and, in one of their aspects, construed in the case of Ten Eyck v. Runk, 2 Vroom 428. That was an action for
In the case of Ten Eyck v. Eunk, all that the court was called upon to decide was whether the term “trespass” in this clause signified those immediate wrongs that are remediable by the action of trespass vi et armis, or comprehended' also those indirect injuries resulting from a tortious act, the appropriate means of redress for which is an action on the case, and the court put upon the expression this latter and more comprehensive interpretation. It is now urged, in the argument of the counsel of the defendant, that while it may be that the case just referred to was correctly ruled, that the ground of judgment there adopted was too broad, and that, in the language of the brief, “ The true construction of the act limits its application to injury to specific property, real or personal, and not to such a wrong as works no injury to any real or personal property of the plaintiff, but causes his estate generally to sustain a loss.” But is this discrimination reasonable ? If, in the instance of water thrown back on to the property of a person by a dam wrongfully erected on the
The fact is, the real question to be solved is whether these ‘ clauses of this act are to be construed strictly, or with the-
And it is with respect to the class of cases illustrated by the example just adduced, that the counsel of the defendant interposes another objection to the rule of construction above
The above rule of construction which I have indicated should be adopted, receives countenance from the views- of the
This provision was considered in fits bearing upon the case of Morgan v. Ravey, 6 Hurl. & Nor. 265, which, was an action in assumpsit against the executors of an inn-keeper, for breach of his implied contract to keep safely the goods of a guest. The question mooted was whether the law' would imply a contract under the circumstances, but the court said: “ It is not however necessary to determine this if the plaintiff elects to amend, which he may do, and we think successfully; because it seems to us, notwithstanding the ingenious argument of Mr. Phinn, that if the claim against the defendant is for a tort, it is for a ‘wrong committed’ within the meaning of the 3 and 4 Wm. IV, o. 42, § 2.” The counsel of the defendant, in his brief, appears to consider this also a case of “ direct injury to specific property,” but I am not able to draw any sensible line of discrimination between the consequential loss of goods arising from a neglect, and the consequential loss of'a sum of money by the same means. The decision seems to me to be much in point, and is entitled to much weight.
The same statute entered somewhat into the consideration of the case of Powell v. Rees, 7 Ad. & El. 426, and the general tendency of this decision is in the same direction with the rulings in the judgment just cited; and it has also this particular importance in our present inquiry, that it rules that this statute of William applies to that class of cases, before
But I think the observation and decision of the court in the case of Erskine v. Adeane, L. R., 8 Ch. Ap. 756, are more to our present purpose. There a claim was made by a land owner against the executors of a deceased tenant for life, for injury to his cattle by reason of the negligence of the deceased with respect to certain yew trees, in providing insufficient fences, and for throwing the cuttings on the plaintiff's land. The cattle in question were poisoned by eating of the yew trees and the cuttings thus exposed to them. Thus it appears the gravamen of the claim was for the consequential damages resulting from the negligence of the deceased. It was held that, while it was evident such an action would not have lain at common law, it could be brought, at any time within the period limited, by the statute of William. This judgment rests upon the ground that the neglect in question, and which resulted in the loss of the cattle, was a wrong to personal property within the sense of those terms in the •statute, and it is, in consequence, plain that this judgment is of much authority in our present investigation, unless a difference can be established, with respect to principle, between a loss of particular cattle by a neglect, and the loss of particular moneys from the same cause. I cannot perceive such difference.
In Massachusetts a literal interpretation has been put upon the statute of that state upon this subject, a result which may, in a degree, be accounted for by the peculiar frame of the act, which is in the nature of an enumeration of the classes of cases in which actions shall survive, and which enumeration would, upon admitted principles, tend to contract the scope of the general terms used in the subsequent part of the section.
The-judgment, I think, should be for the plaintiff in the present case.