would not buy shelled corn for seed; and further asked why this was, testified that the farmers' objections were that they could not examine the shelled corn so easily, and that the kernels were apt to be cracked and broken. We see nothing in this testimony which is open to just objection. Having testified to a large difference between the value of ear and shelled corn, it was but right that the reasons for such difference should be given; and notwithstanding these reasons were substantially only the statements of farmers, yet it does not partake of the nature of hearsay, for the statements themselves were evidential facts. While the difference between the value of ear corn and shelled corn, as testified by the witnesses, seemed very large, and consequently the amount of the verdict also large, yet the testimony was all one way, and fully justified, if it did not compel, the verdict. The defendant offered no testimony, leaving the question of damages, as well as its liability, to rest upon the plaintiff's evidence.

We see nothing else that requires notice, and the judgment will be affirmed.

See Cunningham v. Great Northern Ry. Co., and note, infra.

CUNNINGHAM

v.

GREAT NORTHERN RY. Co.

(49 Law Times, N. S. 394.)

A railroad company by mistake delivered empty casks to consignees which had contained turpentine when they should have delivered casks which had contained ketchup. The company's servants knew that the casks were to be refilled with ketchup. The consignees not knowing of the mistake refilled the casks with ketchup, which was spoiled. In an action by the consignees against the railroad company, held, that there could be no recovery for the loss of the ketchup.

APPEAL by plaintiff from judgment on demurrer.

The plaintiffs alleged that defendants were common carriers; that Crosse and Blackwell were in the habit of sending empty casks by defendants' railway to plaintiff, which plaintiff filled with ketchup and returned; that defendants, by their agents and servants, knew the purpose for which the casks were delivered to plaintiff; that defendants negligently and improperly delivered to plaintiff, as Crosse and Blackwell's casks, certain other casks not belonging to Crosse and Blackwell, and which had contained turpentine; that plaintiff, not knowing, or having reasonable means

of knowing, that the empty casks delivered were not Crosse and Blackwell's, filled them with ketchup which was spoiled.

BRETT, M. R.—In this case the question is, whether the statement of claim upon the face of it, assuming that the facts stated in it are true, shows any cause of action against the defendants. It shows no cause of action, unless it shows negligence on the part of the defendants towards the plaintiff, which makes them liable according to law. In order to show that there is such negligence, the statement of claim must show, either expressly or impliedly, that there was a duty from the defendants to the plaintiff to take reasonable care in respect of the matter charged against them, and that there was a breach of that duty. In the statement of claim there is an allegation of negligence, and therefore the question is whether there are sufficient circumstances disclosed to raise a duty on the part of the defendants to use reasonable care towards the plaintiff in respect of the negligence charged. Now, I myself am prepared to say that, whether the circumstances disclosed are such that, if the person charged with negligence thought of what he was about to do, or to omit to do, he must see that, unless he used reasonable care, there must be at least a great probability of injury to the person charging negligence against him, either as to his person or property, then there is a duty shown to use reasonable care. The question, therefore, comes to this: Are the circumstances stated sufficient to show that, if the defendants had thought about the delivery of the casks, they must at once have seen that unless they use reasonable care in that particular, there must, in all probability, be injury to the plaintiff's property. That which the defendants are charged with having done negligently here is not that they delivered casks which were not the casks of Crosse and Blackwell, because to say that if they thought at all they must see that any casks other than Crosse and Blackwell's must, in all probability, injure the plaintiff's property is too wide, and amounts to that which cannot be supported at all. Therefore, what is really charged against them is this, that their negligence consisted not in the non-delivery of Crosse & Blackwell's casks, but in the delivery of casks which contained the dregs of turpentine. That is what they are charged with. Therefore, the question is, do the circumstances disclose any duty on the part of the defendants to take reasonable care not to deliver to the plaintiff turpentine casks? Now, to apply the rule which I have endeavored to lay down it comes to this: Can it be truly said, upon the facts stated in this statement of claim, that if the defendants had thought about the delivery of turpentine casks they must have come to the conclusion that, unless they took reasonable care not to deliver turpentine casks, there must, in all probability, be an injury to the plaintiff's property? Now, it is stated that the defendants by their servants

knew the purpose for which empty casks sent back to the plaintiff were sent, and knew that the purpose for which they were sent would be such that if the thing was put into turpentine casks there must be danger. But when you are considering this alleged duty to take reasonable care, you must try the case at the point of time when the breach of duty is charged. You charge the defendants with a breach of duty, with negligence with regard to a duty. You must fix your attention upon the point of time when if there was a breach, that breach took place, in order to see whether at that moment of time the duty existed. Therefore it is useless to look at the sixth paragraph here to gather anything from that, because that is what happens after the alleged duty has existed on the part of the defendants, and after the breach of it. The breach of duty of which the defendants are supposed to have been guilty is at the moment of the delivery of the casks to the plaintiff. Now is it true to say then that if they had thought at all they would have thought this: "If we deliver turpentine casks there must in all human probability be injury to property;" can anybody affirm that proposition? In order to do so you must affirm this-that if they had thought at all they were bound to think that the plaintiff would use the casks without examining them, so as to see that they were turpentine casks. Can anybody say that, in the ordinary course of any business, casks which are to be sent empty for the purpose of being filled with something, would not be examined at all so as to discover whether there was in those casks such a thing as the dregs of turpentine? It seems to me impossible to affirm that, and unless you can affirm that, you do not show that, if the defendants had thought of the duty which is alleged against them, they must have seen that if they acted negligently there must be injury to the plaintiff's property. The case, therefore, although I do not say it is far from the line, is wanting in an allegation of fact to my mind to bring it within the line. Then it is said that the case of Dickson v. Reuter's Telegraph Co., 35 L. T. Rep. N. S. 842; 2 C. P. D. 62, aff. in Court of Appeal, 37 L. T. Ñ. S. 370; 3 C. P. D. 1, shows that in this case there was no duty. To my mind it shows nothing of the kind. In Dickson v. Reuter's Telegraph Co. there was no duty alleged. That is all it shows. It was a perfectly clear case. How anybody could suppose that a telegraph company (if they thought at all about the misdelivery of telegrams) were bound to come to the conclusion that, whatever telegram they misreported there must be an injury to the person to whom it was misreported, is perfectly idle. Then we come to the case of George v. Skivington, 21 L. T. Rep. N. S. 495, L. R. 5 Ex. 1, I am prepared to say that, in my opinion, George v. Skivington was rightly decided. It appears to me to come strictly within the rule which I have laid down. The negligence there charged was this-delivering, for the use of a female a hair-wash

made up of deleterious compounds, which deleterious compounds, it was assumed, must injure her if she used it in that form. Therefore, if the chemist had thought like a reasonable man at all, he could not have helped coming to the conclusion: "If I am careless in delivering a compound which I profess to deliver as a hairwash, and if I am so careless that I deliver some deleterious stuffalthough it is possible it may not do harm, although it is possible that it may not be used (as, for instance, although it is possible that when the lady takes it in her hands she will drop the bottle or spill it, and so will not use it ")-yet, if he thought at all, he must come to the conclusion that, "in all probability, if she buys it for this purpose, she will use it; and it is impossible to suppose she could examine whether it is a deleterious compound or not, because that would require an analytical chemist ;" and therefore, if he thought at all, he must have seen that if he was careless to the extent charged against him, in all probability there must be injury. To my mind the case was rightly decided. Then we come to the case of Parry v. Smith, 41 L. T. Rep. N. S. 94, 4 C. P. Div. 325, and there the negligence charged is this-so negligently leaving gas in a cellar that, when a person goes into the cellar he will find the cellar full of escaped gas, and will be blown up. Now, it must be obvious, I think, to anybody, that, if the person who is charged with negligence had thought at all, he must have come to the conclusion-it is inevitable-that, if he was careless to the extent charged against him-that is, if he did not take reasonable care to prevent the escape of the gas into the cellar so as to fill it, he was bound to assume that some one would, sooner or later, go into that cellar while it was charged with gas; and that, if he did, it was next to impossible but that he would be blown up. Therefore, it is a case precisely, to my mind, on all-fours with what I consider to be the facts stated in George v. Skivington. I consider George v. Skivington and Parry v. Smith, both rightly decided upon the right rule. But what I have to say about this case is, that there is so great a defect in the statement of facts as not to bring the case within that rule; and therefore, in my opinion, this statement of claim cannot be supported. But let it not be supposed that I at all agree with the stringency of the rule laid down by Cave, J., or that I can bring my mind to agree that there must have been " a breach of some contract, or that the defendant must have been guilty of some fraud or reckless misrepresentation." It seems to me that there may be a duty, and a breach of duty, and a cause of action which falls short of any one of those three propositions; if any one of those three propositions is true, there is a cause of action; but there is a cause of action for neglect of duty, larger and wider than any one of the three.

FRY, L. J.-I entirely agree. It appears to me that the plain

16 A. & E. R. Cas.-17

tiff's case may be put in the most favorable manner to him by looking at it from two points of view: First, as an action for negligence, and, secondly, as an action for misrepresentation; the negligence alleged being negligence in delivering wrongly and improperly certain casks, and the misrepresentation being in alleging or representing that those casks were the casks of Crosse and Blackwell. Now, first, with regard to the negligence, it is plain that in this case the right to sue on the ground of negligence cannot arise from contract, because there is no contract between the plaintiff and the defendants on this point. The action, therefore, must be rested upon duty; and the inquiry is, whether the defendants owe any duty to the plaintiff. It appears to me that one may lay down with some safety that, where a man without contract does something to another man, and the first man knows that if he does the act negligently that negligence will in all probability produce injury to the person or property of the second man, there the first man owes the second a duty to do the act without negligence. I am doubtful whether one could carry duty further in cases in which there is no contract; at any rate, it appears to me that that proposition is the one which is to be considered in the present case. Now, it appears to me that the statement of claim is defective in not showing that the defendants knew that if they did the act of delivering casks with negligence, they would in all probability produce injury to the property of the plaintiff. I inquire how the case stands upon the ground of misrepresentation, namely, the misrepresentation that these casks were Crosse and Blackwell's casks. The law, I take it, stands in this way: A mere innocent misrepresentation will not give a cause of action, unless it be made with the intention of being acted upon in a particular way, and being so acted upon leads to injury. Now, in the present case, it appears to me that the statement of claim is defective in not showing that it was known that the representation would be acted upon by the casks being used, as they were; the injury resulted, not from the user of the casks, but from the user of the casks in the condition in which they were when they were delivered; and I fail to see any allegation sufficient to make it clear that the representation was made with the intention of being acted upon by using the casks in the condition in which they were at the time of delivery. The case does not appear to me to be very far from the border line; but it appears to me that upon the allegations in the present statement of claim there is no ground of action.

Judgment affirmed.

Special Damages Occasioned by Loss of Goods or Delay in Transportation. Where special damage occurs in consequence of the failure of a carrier to deliver goods within a reasonable time, he is not responsible for any damages other than those which he could reasonably have foreseen would occur,