Page:Harvard Law Review Volume 2.djvu/39

 Rh it must now be read and understood, is an ordinary action on the case for a tort, in which the plaintiff must show damage resulting to him, more or less directly, from a wrongful act of the defendant.

In Lumley v. Gye the report states that special damage was alleged, but the case does not show what the special damage was. Neither in that case nor in Bowen v. Hall does it appear that there was any damage beyond the breach of the contract; and, in Bowen v. Hall, at least, the opinion of the court does not require the plaintiff to prove any damage which could not be assessed in an action for breach of the contract itself. The mere breach of the contract by the obliger supplies to the obligee the element of damage which is necessary to support an action of tort. Such damage is, to be sure, the direct act of the party who breaks the contract, but the defendant is chargeable therefor, upon the ground that he has done an act which was likely to result in a breach of contract, and consequent damage to the plaintiff; and he is liable for the probable consequences of his act, even though the wrongful act of another must intervene to cause the damage.

But what is the wrongful act of which the plaintiff complains? An act cannot be said to be wrongful unless it is in violation of some right in the plaintiff, or of some duty owed by the defendant to the plaintiff. A person who enters into a contract with another, acquires as against that other a right to performance of the contract according to its terms, or to damages for non-performance. Those are the only rights created by the contract; and, from the point of view of contract, those are the only rights which the obligee acquires. But the court, in Lumley v. Gye, announced the principle that the mere existence of the contract imposed upon all third persons who knew of its existence, a duty to forbear from