Commentaries on American Law

the case of goods coming to one's possession by finding, as in the case of a gratuitous deposit. (g)

II. Of Mandatum.

Mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed. In the case of a deposit, says Mr. Justice Story, (h) the principal object of the parties is the custody of the thing, and the service and labor accompanying the deposit are merely accessorial. In the case of a mandate, the labor and service are the principal * 569 objects of the parties, and the thing is merely accessorial.

If the mandatary undertakes to carry the article from one place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform gratuitously some work relating to it, then, in that case, Sir William Jones maintains that the mandatary is bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. (a) The doctrine declared in Sheills v. Blackburne, (b) is, that the mandatary's responsibility is not greater in the latter case than in the former, unless his employment implies competent skill. Mr. Justice Story (c) considers that Sir William Jones has expressed himself inaccurately on this point; and he discusses the merits of the distinction with great force and accurate research. It is admitted by Sir William Jones, that a bailee of this species ought regularly to be answerable only for a violation of good faith; but if he does undertake a business which

(g) Doct. & Stu. Dial. 2, ch. 38. Lord Coke, in Isaack v. Clark, 2 Bulst. 312. Story's Com.. §§ 85-87. Mr. Justice Story, in his Com. on Bailments, § 83, 2d edit., considers the case of goods or chattels placed on the land of another, by unavoidable casualty or necessity, as an involuntary deposit, and that the owner of the articles, in a case free from negligence or fault on his part, may enter and take them away, without being chargeable in trespass. See supra, p. 339; and also the American Jurist for January, 1839, (vol. xx.) where the subject is learnedly examined.

(h) Story's Com. § 140.

(a) Jones on Bailments, 40, 53. In Wilson v. Brett, 11 Mees. & W. 113, it was declared, that a gratuitous bailee, when his profession or situation is such as to imply the possession of competent skill, is liable for neglect to use it.

(b) 1 H. Blacks. 158.

1 So, if he enters upon the performance of the undertaking, he is bound to pursue instructions. Fellowes v. Gordon, 8 B. Mon. 415.

requires a degree of diligence and attention for its performance, that diligence ought to be required of him, unless he assumed the task at the pressing solicitation of the party interested, and without any pretensions to competency. (d)

A distinction exists between nonfeasance and misfeasance, that is, between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the execution of it. It is conceded in the English, as well as in the Roman law, that if a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance. But Sir *570 William Jones contends, that by the English law, as well as by the Roman law, an action will lie for damage occasioned by the non-performance of a promise to become a mandatary, though the promise be merely gratuitous. There is no doubt that is the doctrine of the civil law; but it was shown by the Supreme Court of New York, in Thorne v. Deas, (a) that Sir William Jones had mistaken some of the ancient English cases on this point, and that the uniform current of the decisions, from the time of Henry VII. to this day, led to the conclusion, that a mandatary, or one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance, but not for a nonfeasance, even though special damages be averred.

In the great case of Coggs v. Bernard, the defendant undertook, gratis, to carry several hogsheads of brandy from one cellar and deposit them in another; and he did it so negligently and improvidently, that one of the casks was staved and the brandy lost. The K. B. held, that the defendant was answerable for the damage, on the ground of his neglect and carelessness, though he was not a common carrier, and though he was to have nothing for his trouble. If the mischief had happened by any person who had met the cart in the street, the bailee would not have been chargeable; but the neglect or want of ordinary care in that case was a

(d) See the opinion of Judge Porter, of Louisiana, referred to in a subsequent page, under this head, in favor of the distinction made by Sir William Jones.

(a) 4 Johns. 84. Elsee v. Gatward, 5 Term Rep. 143, S. P.

breach of trust; and a breach of trust, undertaken voluntarily, is a good ground of action. Lord Holt admitted, that if the agreement had been executory, or to carry the brandy at a future time, the defendant would not have been bound to carry it; but in the case before him, the defendant had actually entered upon the execution of the trust, and having done so, he *571 was bound to use a degree of diligence and attention adequate to the performance of his undertaking. (a)

The case of Elsee v. Gatward (b) is a decision of the K. B. to the same point. It was decided, upon the doctrine of Coggs v. Bernard, and of the ancient authorities referred to by the court in that case. The court recognized the justness of the distinction, that if a party undertakes to perform a work, and proceeds to the employment, he makes himself liable for any misfeasance in the course of that work. But if he undertakes without consideration, and does not proceed on the work, no action will lie against him for the nonfeasance, unless it be in special cases, as in the case of a common carrier, porter, ferryman, farrier, or innkeeper, who are bound, from their situations in life, to perform the work tendered to them, or the employment assumed by them.

A bailee, who acts gratuitously, in a case in which neither his situation nor employment necessarily implied any particular knowledge or professional skill, is held to be responsible only for bad faith or gross negligence. (c) Thus, where a general merchant undertook, voluntarily, and without reward, and upon request, to enter a parcel of goods for another, together with a parcel of his own of the same sort, at the custom-house, for exportation, and he made an entry under a wrong denomination, whereby both parcels were seized; it was held that he was not liable for the loss, inasmuch as he took the same care of the goods of his

(a) Receiving a letter to deliver, or money to pay, or a note by a bank to collect, and by negligence omitting to perform the trust, the mandatary, though acting gratuitously, becomes responsible for damages resulting from his negligence. The delivery and receipt of the letter, money, or note, creates a sufficient consideration to support the contract, and is a part execution of it. Durnford v. Patterson, 7 Martin (Louis.) 460 Shillibeer v. Glyn, 2 Mees. & W. 145. Story on Bailments, §§ 170–172.1 (b) 5 Term Rep. 143.

1 See, also, Robinson v. Threadgill, 13 Ired. (N. C.) 39.

friend as of his own, and had not any reward for his undertaking; and he was not of a profession or employment that necessarily implied skill in what he undertook. (d) The defendant in that case acted with good faith, and that was all that could be required. The case would have been different if a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, because their situation and employment would necessarily imply *572 * a competent degree of knowledge in making such entries. So, if a surgeon should undertake, gratis, to attend a wounded person, and should treat him improperly, he would be liable for improper treatment, because his profession implied skill in surgery. If, however, the business to be transacted presupposes the exercise of a particular kind of knowledge, and a person accepts the office of mandatary, totally ignorant of the subject, then it has been said that he cannot excuse himself on the ground that he discharged his trust with fidelity and care. A lawyer, who would undertake to perform the duties of a physician; a physician, who would become an agent to carry on a suit at law; a bricklayer, who would propose to repair a ship, or a landsman to navigate a vessel, are cited as examples to illustrate the distinction. But if the agent has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, it is sufficient to exempt him from responsibility for errors into which a man of ordinary prudence might have fallen. (a) It is a little difficult to reconcile the opinions on this point of a gratuitous undertaking to do some business for another; but the case of Sheills v. Blackburne contains the most authoritative declaration of the law, in favor of the more limited responsibility of the bailee. There are, however, a number of instances in which such a mandatary becomes liable for want of due care and attention. (b)

(d) Sheills v. Blackburne, 1 H. Blacks. 158.

(a) Porter J., in Percy v. Millaudon, 20 Martin (Louis.) 77. Mr. Justice Porter dissents from the more severe doctrines of Pothier, in his Traité du Mandat, n. 48, on this point, and he is deemed by Mr. Justice Story to have combated, with entire success, the doctrine of Pothier.

(b) The best general test, says Mr. Justice Story, (Com. on Bailment, § 186,) is to consider whether the mandatary has omitted that care which bailees without hire, of common prudence, are accustomed to take of property of that description. The cases put by Sir William Jones and Lord Stowell, Jones on Bailment, 62, the case of Rendsberg, 6 Rob. Adm. 142, 155, and the case of Tracy v. Wood, decided before Mr. Justice Story, 3 Mason, 132, are striking illustrations of the nice and difficult line of distinction

Thus, it has been held to be an act of negligence sufficient to render a gratuitous bailee responsible, for him to have turned a horse, after dark, into a dangerous pasture, to which he was unaccustomed, and by which means the loss of the horse ensued. (c) So, if a mandatary undertakes specially to do the work, he may, like a depositary, be answerable for casualties; and if he spontaneously and officiously offers to do the act, he may be responsible beyond the case of gross negligence, and be held *to answer for slight neglect. (a) There is reason, how- *573 ever, to believe, that this head of mandatum, in the Essay on Bailment, was not examined with perfect accuracy, and especially when the distinguished author undertook to prove from the English law, what he certainly failed to show, that an action lay for the nonfeasance in promising to do a thing gratuitously, and omitting altogether to do it. The civil law did undoubtedly contain such a principle; and Pothier, in his elaborate treatise on the contract of mandatum, (b) adopts the powerful reasoning and very sound maxims of the civil law on the subject of the responsibility of the mandatary. (c) But the English law, as has been abundantly shown from the cases already referred to, never carried the liability of the mandatary to the same extent. He is bound to account for the due performance of the trust he assumes, upon the principles already stated; and if the bailor sustains damages by his fraud, or gross negligence, or misuser, he must answer for the same. (d)1 On the other hand, if the mandatary bestows the requisite care and diligence, he is justly entitled to indemnity against his necessary expenses and necessary incidental contracts; and so if he sustains loss and injury in the execution of the trust, and of which the service was the cause, the bailor

between what is and what is not sufficient diligence in the bailee under the circumstances.

(a) Jones on Bailment, 41, 48, 54. Vide supra, p. 565.

(b) Traité du Contrat, de Mandat.

(d) Pothier, h. t. n. 61-66.

1 A mandatary is bound to follow the instructions of his bailor, unless they conflict with some special agreement, and is responsible for injury happening from neglecting to follow them. Ferguson v. Porter, 3 Flor. 27.

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