It is immaterial also whether the breach of the contract is caused by persuasion or by any other means. If performance of a contract becomes impossible through an act of violence of the defendant, done for the express purpose of preventing performance, the element of damage which is necessary to support the action is present, and the damage—the non-performance of the contract—is the same as in the case of persuasion. If a man should be prevented from performing a contract through an assault and battery committed upon his person, with knowledge of the existence of the contract, and for the purpose of preventing its performance, every reason upon which the action in Lumley v. Gye was sustained would require that the defendant should be held. Or if a man should agree to sell a horse, and before the time for performance arrived, a third person, with knowledge of the contract of sale, kills the horse, for the same reasons he should be held.[1] Indeed, there is an additional reason for sustaining the action in these cases; for the person prevented from performing his contract would have a valid defence in an action for breach of the contract; and if the party injured by the breach of contract could not hold the trespasser he would have no remedy. In the case of Taylor v. Neri,[2] which is the only English case upon the point, Lord Chief Justice Eyre ruled at nisi prius that no action would lie for an assault and battery upon a performer, whereby the plaintiff lost his services; but that case was distinguished by the judges in Lumley v. Gye, upon the ground that the damages were too remote, and furthermore, no malice, or knowledge on the part of the defendant that the contract existed, was proved.
Neither does the principle require, in the case of contracts for personal service, that the service should be for a fixed term. If a man who is in the employ of another merely at will is induced by the persuasion of a third person to abandon the employment, it is a damage to the employer; for he is deprived of the advantages or profits which he would have obtained from the continuance of the service. And if the persuasion used by the third person was malicious, it is a wrongful act, and he is liable in an action of tort.
- ↑ It seems that by the Roman law in such a case an action was given to the person to whom the promise was made, but it was the action de dolo. “Si servum, quem tu mihi promiseras, alius occident, de dolo malo actionem in eum dandam plerique recte putant, quia tu a me liberatus sis: ideoque legis Aquiliae actio tibi denegabitur.” D. 4, 3, 18, 5 (Paulus). Mommsen inserts mihi after de dolo malo actionem.
- ↑ 1 Esp. 386. See, also, Burgess v. Carpenter, 2 Richardson (S. C.), 7.
