Odger's English Common Law

TORTS AND BREACHES OF CONTRACT. 431
to a contract, may bring an action of tort and recover damages
for any fraud which induced the contract or for the negligent
performance of it, provided it was entered into with express
reference to himself.
Thus, where the plaintiff's father purchased of the defendant a gun,
stating at the time that the gun was required for the use of himself and his
son, and the plaintiff was injured by the bursting of the gun, which was
not of the make certified by the defendant, it was held that the plaintiff
could recover damages, although he was not a party to the contract. x
Here there was no privity whatever between the plaintiff and the defendant
and no breach of any public duty, nor even a violation of any private right
existing between the parties to the action. The Court, nevertheless, held
that the defendant, having been guilty of deceit, was responsible for its
consequences whilst the instrument sold by him was in the possession of an
individual to whom his fraudulent statement had been communicated, and
for whose use he knew that it was purchased. In this case fraud was
distinctly alleged and proved.
But in Longmeid v. Holliday,* where a husband and his wife sued in tort
for an injury to the wife, caused, they said, by the fraudulent and deceitful
warranty of a lamp sold by the defendant to the husband, to whom there-
fore the warranty was made, the jury found that there was no fraud, and it
was held that the wife could not properly be joined as a co-plaintiff in the
action, because the injury to her flowed from the breach of contract, which
was with the husband alone.
Again, where a man bought from the defendant for the use of his wife a
bottle of hair-wash, which the defendant had so negligently compounded
that the wife suffered injury from using it, it was held that privity was
not necessary to enable the wife to sue, for the defendant had been guilty
of negligence and the contract was entered into with express reference to
herself. 8
Again, the duty on which the action is based may arise
from the fact that the defendant has invited the plaintiff on
to his premises or that the plaintiff has lawfully entered on
to such premises for some proper purpose in the way of his
business. If in such a case the plaintiff is injured by reason
of the defective condition of the defendant's premises, he is
entitled to recover damages, unless he was aware or ought to
have been aware of their defective condition before the injury
i Langridge v. Levy (1837), 2 M. & W. 519 ; i lb. 337.
2 (1851), 20 L. J. Ex. 430 ; and see Winterbottom v. Wright (1842), 10
M & W. 109, followed in Earl v. Lubbock, [1905] 1 K. B. 253 ; and Heaven v.
Pender (1883), 11 Q. B. D. 503.
3 George and wife v. Skivington (1869), L. B. 5 Ex. 1 ; and see Clarke and
wife v. Army and Navy, $c, Society, Ltd., [1903] 1 K. B. 155.