Opinion
January 14, 1921.
I. Gainsburg, for the appellants.
Lorlys Elton Rogers of counsel [ Bernard P. Ryan with him on the brief; Adolph E. Gutgsell, attorney], for the respondents.
The plaintiffs purchased 905 bags of beans from Bech, Van Siclen Co., who employed the defendants to weigh the same. The defendants gave their certificate that the weight of the 905 bags was 228,380 pounds. Subsequently 17 bags were withdrawn from the sale. These were reweighed by the defendants, and their weight was deducted from the total weight of the 905 bags, leaving a remainder of 224,244 pounds as the weight of the 888 bags delivered to the plaintiffs. Upon the defendants' certificate of these weights, the plaintiffs paid Bech, Van Siclen Co. at the rate of ten and one-half cents per pound. The beans were stored in a warehouse for about five months and were then reweighed by the defendants at the request of the plaintiffs. The second weighing showed a discrepancy between that and the first weighing of 12,022 pounds. Evidence was given tending to show that the loss of weight by shrinkage of such beans in a storage warehouse would be negligible, and no evidence was given tending to account for this difference in weight. It was not seriously contested but that, by reason of the defendants' negligence in the first weighing, 12,022 more pounds were certified than the 888 bags contained, and that by reason of that fact the plaintiffs had overpaid to Bech, Van Siclen Co. $1,262.31. At the close of the trial both sides moved for the direction of a verdict, and the court directed a verdict for the plaintiffs. On appeal the Appellate Term reversed the judgment and dismissed the complaint, on the ground that there was no evidence tending to show that the defendants at the time of the first weighing owed any legal duty to the plaintiffs to weigh the beans accurately; that the defendants were employed and paid by Bech, Van Siclen Co. to do the weighing and there were no contractual relations between the plaintiffs and the defendants.
It is true as a general rule, where the duty violated by the defendant was created solely by contract, that a cause of action arising out of such a violation is limited strictly to the parties to the contract and those in privity with them. No privity of contract is necessary, however, to sustain an action in tort by an individual specially injured by an act or omission constituting a breach of contract where it also constitutes an invasion of a legal right of, or the violation of a legal duty owed to, the plaintiff independently of or concurrently with the contract. (38 Cyc. 433, 434.)
The defendants were employed to correctly weigh these bags of beans. They knew that the beans had been sold to the plaintiffs and were to be paid for by the pound, in accordance with their certificate of weight. There was, therefore, a legal duty to the plaintiffs concurrent with the contract duty to Bech, Van Siclen Co. to carefully weigh and accurately certify the result. Both parties were relying upon their care and accuracy, the one to charge and the other to pay for the beans; therefore, when by the defendants' negligence in incorrectly ascertaining the weight the plaintiffs were injured by being required to pay $1,262.31 more for the 888 bags of beans than they were legally obligated to pay, that damage flowed directly from defendants' negligence, and for it the defendants should respond. In Mac Pherson v. Buick Motor Co. ( 217 N.Y. 382, 393) Judge CARDOZO, writing for the court, said: "There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others, according as he knows or does not know that the subject-matter of the contract is intended for their use." He cites and discusses a large number of cases in which liability for damages has been imposed on one party to a contract for negligence in the performance of a duty owing to a third person not a party thereto. While none of those cases are exactly in point, the instant case is well within the principles governing the decisions of those cases.
The determination of the Appellate Term should be reversed, with costs in both courts, and the judgment of the City Court affirmed.
CLARKE, P.J., DOWLING, SMITH and GREENBAUM, JJ., concur.
Determination reversed and judgment of the City Court affirmed, with costs in this court and in the Appellate Term.