Page:Harvard Law Review Volume 2.djvu/403

 NOTES.

385

lessly and recklessly makes a statement, knowing that another person intends to act upon it, and under such circumstances that the odier is reasonably entitled to rely upon it, although he himself is not interested in the result of the other's action, is, in the event that the statement proves untrue, liable in damages to the other who has been injured by acting upon it, both in an action on the case for negligence, and in an action of deceit for the misrepresentation.

Recovery on the ground of negligence is based upon an analogy to those cases in which liabiUty is fixed upon one who carelessly erects a ( dangerous scaffolding which he knows others are to use, or mixes dangerous ingredients in a remedy offered for public sale. So in Cann V. Wtllson, the basis of the responsibility is said to be that the maker of the statement, knowing that another person intends to act upon it, being reasonably entitled so to do, has voluntarily assumed the duty of supplying a safe and accurate statement, and is liable for negligence in the performance of this duty. The analogy seems to be a good one. Sound public policy demands the fixing of die responsibility in question.

The phrase "under such circumstances that the other is reasonably entitled to rely on his statement," though not used by the court, seems to express their doctrine as accurately as it can be defined. In the case under discussion, the defendants, a firm of valuers, were employed by a third person, with whom the plaintiff was negotiating for the mortgage of certain property, to give the plaintiff a valuation of the property. Here the plaintiff evidently was reasonably entitled to rely on the care- fuhiess of the defendant's valuation, although there was no contract relation between him and them, and although they were not interested in his action with regard to the property. There is no reason to beUeve that the court would have held the defendants liable had they been mere officious volunteers giving information on which the plaintiff would not have been reasonably entitled to rely. An able critic in the January " Law Quarterly " ^ is [misled in this respect, his criticism of the case as to this point being based on the mistaken ground that the valu- ation was given gratis.

Upon the point that an action of deceit can, under these circum- stances, be maintained, Cann v. Willson goes no farther than the previous decision of Peek v. Derry^ 37 Ch. D. 541, digested 2 H. L. Rev. 189, in which the doctrine had been already established that an untrue statement, recklessly made, without reasonable grounds for believing it to be true, is, in an action for deceit, equivalent to a state- ment made with the knowledge that it is false. The cumulative authority of this present decision seems to firmly establish in the English law that novel, though apparently beneficial, doctrine.

It had long before been settled that in an action for deceit it was not necessary to prove that the defendant had an3rthing to gain by his mis- statement, or that he was under any contractual relation to the plaintiff. Polhill V. Walter, 3 B. & Ad. 114.

Modern English law is moving fast in the direction of fixing addi- tional responsibility upon the makers of statements which are to be acted upon in dealings between man and man ; it is to be trusted that the American law may keep pace with this beneficial advance.

> Law Qixftrterly Reriew, vol. <, p. loi. The •* Law Quarterly »• contains (po. loi-iot) two in- teresting criticisms of Cann ▼. witlton (one written bj ttw editor), which differ In part both from each other and from the opinions expressed in this note.