Odger's English Common Law

TORTS AND BREACHES OF CONTRACT. 429
itself, and cannot therefore be relied upon unless it is accom-
panied by a wrongful act and consequential loss to the plaintiff.
A great variety of such actions may arise under the common law. Take,
for instance, the numerous cases to which the maxim Sic utere tuo vf
alienumnon laedas 1 applies. Thus, in the well-known case of Rylands \.
Fletcher? it was held that if a man collects water in a reservoir or keeps
on his own ground anything which will do injury to his neighbour if it
escapes, he does so at his peril and any person injured by its escape has a
good primd facie cause of action. So, too, where a man makes certain
alterations to the foundations of his house and in so doing removes or
weakens the support which had always been afforded to the adjacent house,
he will be liable if his neighbour's house is thereby injured. 3
Other instances of liability for breach of private duty may arise out of the
relation of principal and agent. Thus, the statute 30 & 31 Vict. c. 2!) for-
bade the selling of bank shares without the name of the registered proprietor
of the shares being mentioned on the bought and sold notes. But it was
the custom of the Stock Exchange to disregard this enactment. Accordingly,
when the plaintiff sold some bank shares, his broker omitted to state his
name, as the statute required him to do. In consequence of this defect
the contract was unenforceable, and the shares, which were subsequently
rendered valueless by the failure of the bank, remained the property of the
plaintiff. But he was held entitled to recover the price at which the shares
had been sold from the broker as damages for his breath of duty. 4
A contract may create a private duty, the breach of which
will be a tort. As a general rule, where a contract exists,
an action for any breach of it must be based on the contract,
and will not be ground for an action of tort. The fact, how-
ever, that there is a contract existing between the parties will
not prevent the plaintiff from suing in tort, if the facts be such
that he could have succeeded in an action of tort without
relying on the contract. But if, in order to establish any
case at all against the defendant, it is necessary for him to
prove that he made a contract with the defendant and thai
the defendant has broken it, then the plaintiff must sue in
contract and not in tort. For it is the contract that defines
the liability of the defendant.
1 " Use your own property so as not to injure that of others."
2 (1868), L. R. 3 H. L. 330 ; and see Holgate v. Bleaiartl, [1917] 1 K. B. 443.
8 Bower v. Peate (1876), 1 Q. B. D. 321 ; and see Angus v. Dalton (1878), 4
Q. B. D. 162 ; (1881), 6 App. Cas. 740.
* Neilton v. James (1882), 9 Q. B. D. 546. But, as appears from the subsequent
decision in Perry v. Burnett (1885), 15 Q. B. D. 388, a plaintiff cannot
recover damages under such circumstances, unless he was ignorant of the custom.