F: The defendant, a manufacturer, and repairer of mail coaches contracted with Postmaster General to keep the coaches in a safe and secure condition. D failed to comply with his promise and as a result, P, mail coach driver, was injured due to the lack of repair of the coach.
I: whether the person owes the duty to another who is not in privity of contract
R: a person does not owe the duty to another who is not in privity of contract
However, an employee can sue an employer.
A: In cases of public nuisances, whether the act was done by the party as a servant, or in any other capacity, you are liable to
an action at the suit of any person who suffers. Those are cases where the real ground of the liability is the public duty or the commission of the public nuisance. Also, another class of cases; they are all cases in which an action might have been maintained upon the contract unless there has been some public duty, or public nuisance
C: judgment for D
Co: 1. Can the tort duty to follow the contract duty? Yes
2. classical distinction btw nonfeasance and malfeasance
privity of contract – you are the part of the contract
traditional rule-there can be no liability in tort based upon a duty which is assumed through contract unless you are in privity of contract.
Either sue on tort or contract. (varies from jurisdiction)
i) Election rule – one is to permit P to choose the theory of his action and dispose of the particular question accordingly.
ii) Gravamen rule – some courts will not give P this latitude. Rather, the court will determine the gravamen or gist of the action, which is to say the essential facts on which the P’s claim rests.
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