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nuisance; and clearly the maintenance of anything injurious to health may be a nuisance.*

The interference with legal rights, which constitute a nuisance, does not depend, ordinarily, either upon the care exercised by the wrong-doer or upon his motive. But annoyance, to constitute a nuisance, must cause substantial damage; for damages are the gist of the wrong, unless there is a physical invasion, or interference with, another's property, in which case the presence or absence of actual damage is immaterial. The creating or continuing of a nuisance in any form which involves the physical invasion or interference with another's property is a wrong for which at least nominal damages may be recovered."

Where the law has authorized the conduct complained of, which would otherwise be a nuisance, and no constitutional provision is violated by the law, there can be no proper interference therewith, either by the act of the party or by judicial proceeding.7

Private remedies for a nuisance not merely statutory may be: (1) Abatement by act of parties or by judicial proceeding; (2) injunction or other equitable remedies; or (3) an action for damages. The abatement of a nuisance by private persons is one of the oldest recognized remedies for torts. It is, in general, the removal of the nuisance. Where a party can maintain an action for a nuisance, whether public or private, he may enter and abate it, without breach of the peace, unless the nuisance consists of unlawful and immoral conduct."

§ 124. Negligence. Negligence, as a tort for which an action. for damages will lie, is the inadvertent omission to use that care and diligence which it is a person's legal duty to use, proximately causing injury to another.10 If the injury is intentional, it is something more than mere negligence. Negligence is a breach of the duty to use the care required under the particular circumstances. But it will not amount to a tort unless the breach results in damage to the plaintiff." The essential elements of negligence are: (1) Failure to exercise commensurate care, involving (2) a breach of duty, resulting in damage to the plaintiff.' The another are nuisances, to the extent that the branches overhang and the roots penetrate the other's land, and the person whose land is injured may cut off the roots and branches so far as they overhang or penetrate, but he may not cut down the trees. 2 Jaggard Torts 800; 1 Cyc. 772, 791; 29 Cyc. 1215.


4. 2 Jaggard Torts 767; 29 Cyc. 1165 et seq., 1184 et seq.

5. 2 Jaggard Torts 771; 29 Cyc. 1154, 1155.

6. 2 Jaggard Torts 778; 29 Cyc. 1154, 1190, 1193, 1277.

7. 2 Jaggard Torts 788; 29 Cyc. 1197.

8. 2 Jaggard Torts 799; 29 Cyc. 1214 et seq.

9. 2 Jaggard Torts 799; 29 Cyc. 1214, 1215.

Thus, trees whose branches and roots extend over into the land of


10. Smith Elem. L. 273; 29 Cyc. 415 et seq.

11. Smith Elem. L. 274; 29 Cyc. 415 et seq.

12. 2 Jaggard Torts 810.

duty, violation of which gives rise to a cause of action in negligence, is to exercise due care under the circumstances. Mere carelessness, resulting in harm to another, is not actionable unless thereby there be violated a duty by the wrong-doer to the sufferer prescribed by the common law, by contract, or by statute.13

The owner or occupier of real estate owes certain duties to those who come thereon, according to the cause of their entry, and the nature of the danger to which they are exposed. (1) To trespassers it is only against active injury; (2) to licensees it is to give notice of hidden dangers or properties; (3) while to invited persons, as that term is understood by the law, the owner is bound to use reasonable care, having respect to the person and character of the business to be carried on, to save his guest from injury while upon the premises.14

To maintain successfully an action for negligence, the ordinary rule is that it must appear that the injury was occasioned by actionable negligence on the defendant's part, and it must not appear that there was contributory negligence on the plaintiff's part. But contributory negligence is no defense to a wilful or wanton wrong.15 To make out the defense of contributory negligence the plaintiff's conduct must have the three essential elements of negligence, that is: (1) A duty to exercise care; (2) a violation of that duty in fact; and (3) connection as cause of the damage complained of.16 The duty of exercising care to avoid injuries includes, inter alia: (1) The duty of not voluntarily exposing one's person or property to harm; (2) and the duty of avoiding harm before or after the damage is done, when voluntary and deliberate action is allowed by the circumstances. But the duty of exercising care does not require one to anticipate a wrongful act.17 order that the plaintiff's contributory negligence may bar his recovery, it must be connected as at least a part of the legal cause of the damage.1 There may be a recovery, notwithstanding mutual negligence on the part of the plaintiff and the defendant: (1) If the injury would have happened although the plaintiff had been in no wise negligent; or (2) if the defendant, after he discovered the danger to which the plaintiff was exposed by his own negligence, refused or neglected to exercise due care, under the circumstances, to avoid harm.19


125. Action for Death by Wrongful Act. At common law the right of action for an injury to the person abates upon the death

13. 2 Jaggard Torts 825; 29 Cyc. 415 et seq.

14. 2 Jaggard Torts 889 [quoting 34 Am. L. Reg. & Rev. 1971; 29 Cyc. 442, 445, 449, 453, 465, 471.

15. 2 Jaggard Torts 959; 29 Cyc. 505 et seq.

16. 2 Jaggard Torts 962.
17. 2 Jaggard Torts 962.
18. 2 Jaggard Torts 971.
19. 2 Jaggard Torts 971.


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of the party injured, the case falling within the maxim, “Actio personalis moritur cum persona 20 and therefore where death results, whether instantaneously or not, from such an injury, no action can be maintained by the personal representative, heirs, or distributees, of the party injured to recover damages suffered by the decedent.21 But where the death of a wife or child, caused by wrongful act, is not instantaneous, the husband or father may recover for the loss of services and for medical and other expenses up to the time of death.22 A right of action to recover damages for death caused by wrongful act was given in England by a statute known as Lord Campbell's Act,23 and this statute has been, with various modifications, incorporated in the legislation of most, if not all, of the States in this country. Under these statutes, whenever the death of a person is caused by any wrongful act or neglect, the party who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the party injured.24

20. Meaning "A personal right of action dies with the person."

21. Tiffany Death by Wrongful Act, 1; 13 Cyc. 310.

22. See 13 Cyc. 310, 311; Tiffany Death by Wrongful Act, § 1.

23. 9 & 10 Vict. c. 93.
24. See 13 Cyc. 311 et seq.

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132. Reality of Consent
133. Illegal Agreements.
134. Operation of Contract.
a. In General.

Mistake, Fraud, etc.

b. Assignment of Contracts.
c. Joint and Several Contracts.
135. Interpretation of Contracts.

a. Rules Relating to Evidence.

b. Rules Relating to Construction.

136. Discharge of Contract.

a. Discharge of Contract by Agreement.

b. Discharge of Contract by Performance.

c. Discharge of Contract by Breach.

1. Discharge of Contract by Impossibility of Performance.

e. Discharge of Contract by Operation of Law.

137. Remedies on Breach of Contract.

138. Quasi-Contract.

B. Particular Contracts.

§ 139. Sales.

140. Bailments.

141. Negotiable Instruments.

142. Suretyship and Guaranty.
143. Insurance.


126. Definition and Essential Elements.- A contract, in its proper sense as an executory contract, is an agreement the fulfilment of whose promises is enforceable in law. It is the result of the concurrence of agreement and obligation, and may therefore be defined as " an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others." 2


We have seen that every subject owes certain duties to the state, being obliged to obey the laws when those laws are properly laid down by competent governmental authority. The ground of this obligation is that such obedience is necessary to the fulfilment of the functions of the state, and therefore necessary to the welfare of society. By virtue of these obligations the subject is restricted in his freedom of action. He is obliged, for example, to pay taxes,

1. Smith Elem. L. 225.

2. Clark Contr. (2d ed.) 2; 9 Cyc.

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and to refrain from the commission of crimes. The distinguishing feature of these restrictions is that they are imposed by law.3 In addition to the restrictions thus imposed, the subject is able to bind himself by certain acts toward, or agreements with, his fellow subjects. If, for example, he should assault his neighbor, seriously injuring him, he might be obliged to compensate his neighbor therefor; and thus a relation somewhat similar to that of debtor and creditor would result, although of different origin, being based, as we have seen, upon tort. But if he should purchase his neighbor's horse, and promise to pay for it on a certain day, the true relation of debtor and creditor would exist between them. The subject may, therefore, be a party to two sorts of relations, one resulting in a control exerted by the state over him, based upon the necessity of government in every community; the other involving a control exercised by him over one or more of his fellow subjects growing out of agreement (ex contractu) or out of wrongful act (ex delicto). The relations arising from the perpetration of wrongful acts toward other subjects, and the obligation arising therefrom, form the subject-matter of the law of torts, which has already been discussed. When two or more persons enter into a legal relation by agreement, the law will enforce the fulfilment of the promises involved in such agreement, and the agreement itself is called a contract.*

It is obvious that there may be agreements the obligation of whose promises is of a moral or social nature merely; as when a person agrees to dine with his friend on a certain day. There are, on the other hand, rights which are enforceable at law, which do not originate in agreement, as those growing out of torts. But it is only when the two elements, agreement and enforceability at law or obligation are both present that a contract exists.5

There must be an agreement directly contemplating and resulting in an obligation enforceable in law, and therefore: (1) There must be a distinct communication by the parties to one another of their intention, or an offer and acceptance; (2) the agreement must possess the marks which the law requires in order that it may affect the legal relations of the parties and be an act in the law; and therefore it must be in the form required by law, and there must be a consideration when this is required by law, as will be shown in another section; (3) the parties must be capable in law of making a valid contract; (4) the consent expressed in offer and acceptance must be genuine; and (5) the objects which the contract proposes to effect must be legal. These essentials of a valid contract will be shortly considered in the following sections.

3. Smith Elem. L. 225.

4. Smith Elem. L. 925, 226.

5. Smith Elem. L. 227; Clark Contr.

(2d ed.) 2 et seq.; 9 Crc. 240 et


6. Clark Contr. (2d ed.) 12.

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