§ 82. A gratuitous bailee of money or small packages of great value must take the common care of them usually bestowed upon such articles; he must use a degree of diligence and attention adequate to the perform ance of the trust; such ordinary care as the circumstances naturally call for.1

Being a gratuitous bailee, a volunteer in the service of another, he does not guarantee the safe transmission of the money, without an express stipulation to that effect. His engagement is to use the necessary care and diligence in the discharge of his trust; namely, such care in its transportation and delivery as persons of common prudence in his situation, usually bestow in the custody and keeping of similar property belonging to themselves. He makes the business his own, and engages to employ upon it the same care, attention and diligence, which he would use were the business actually his own: the contract implied by law can hardly be more comprehensive.

§ 83. Where the owner of his own free will confides his property to the custody of another, he knows or may fairly be presumed to be acquainted with his character; and in such a case it is not unreasonable to assume that the owner assents that the bailee shall keep or carry the same with the care which he usually takes of his own property.3 For the same reason, the owner's assent that the business shall be transacted according to an established usage, may be presumed. But mere knowledge by the bailor of the mode in which the bailee receives and takes care of property intrusted to him, will not as a matter of law absolve him from liability for a want of due care: unless the circumstances be such as to establish an agreement as to the nature and degree of care to be used by the bailee."

§ 84. A mandatary holds the property under a special trust, and is held to a strict fidelity in the execution of the trust; he must perform his engagement with perfect fairness and strict integrity. No reason can be suggested why he should not be held to the same rules of account

hire, or other mandataries, of common prudence, are accustomed to take of property of the like kind. Articles of great value, such as may be easily injur ed, demand a greater degree of care than those of less value. Money, jewelry, and pictures are of this description. Graves v. Tickuor, 6 N. Hamp., 537. 1 Jenkins v. Mathew, 1 Sneed, 248; McNabb v. Lockhart, 18 Georgia, 495; Graves v. Ticknor, 6 N. H., 537.

2 Eddy v. Livingston, 35 Mo., 487; Colyar v. Taylor, 1 Cold. Tenn., 372; The State v. Meagher, 44 Mo., 363; Jourdan v. Reed, 1 Clarke (Iowa), 135. 3 The William, 6 Rob. Ad. R., 316.

* Gibson v. Culver, 17 Wend., 305; Van Santvoord v. St. John, Hill, 157. Conway Bank v. Amer. Ex. Co., 8 Allen, 512; Ante § 50; see Eastman v. Patterson, 33 Vt., 146.

ability as an ordinary trustee of personal property:' and to the same rules which enforce the duties of an agent to his principal. Neither an agent nor a trustee is permitted to have or to acquire in the business committed to him, any interest adverse to that of the party for whom he acts. The relation in which he stands precludes him from any surreptitious dealing on his own account, at the expense of the principal or party on whose behalf he is acting.

Factors, agents and brokers acting as such, and having the custody of money or property belonging to a principal, act in a fiduciary capacity; and are for that reason held to a strict liability. So an attorney collecting money for his client, or an agent receiving money to invest or to appropriate in a special manner, holds it in a like fiduciary capacity; and his duty to follow his instructions, or to account for the fund, is not much affected by the circumstance that he is or is not to be paid for his services. The remedy given against him by arrest, is placed upon the ground of a violated trust."

§ 85. A loan of animals to be used for their keep, creates a bailment for hire; and subjects the bailee to the rules applicable to that class of

1 Taylor v. Fire Department of N. Y., 1 Edw. Ch., 294, 299; Chapin v. Weed, Clarke's Ch. R., 464.

2 Reed v. Warner, 5 Paige's Ch. R., 650, 656.

Conkey v. Boud, 36 N. Y., 427; Morrison v. O. & L. C. R. Co., 52 Barb., 173. 4 Duguid v. Edwards, 50 Barb., 288.

Gross v. Graves, 2 Robt., 707; White v. Platt, 5 Denio, 269.

6 Schieder v. Shiells, 17 How. Pr., 420; see Dodge v. Tileston, 12 Pick., 328 The engagement of the mandatary partakes of the nature of a trust, in the exe. cution of which a strict fidelity is required of him; as much as this is implied in á remark quoted from one of Cicero's speeches, that the ancient Romans considered a mandatary as infamous if he broke his engagement, not only by actual fraud, but even by more than ordinary negligence. Jones on Bailm., 63. The confidence reposed in him was evidently regarded as creating an obligation which could not be violated without dishonor, without incurring the infamy attaching to the betrayal of a trust. But this is rather a statement of the obligation, as it is felt by an honorable and faithful man, than a strictly accurate definition of the legal duty; for the law does not, as we have seen, hold the mandatary, without reward, to so strict a rule of responsibility as it imposes upon the bailes for hire. It prefers rather to base the obligation of the contract upon a consideration of benefit, or of actual trust, coupled with the custody of property; but in some instances, a moral obligation arising out of a pre-existing and valuablą consideration, is regarded as sufficient to support an express promise or undertaking, such as a debt barred by the statute of limitations. Cook v. Bradley, 7 Conn. R., 57. Where a legal obligation has once existed, it may be made the basis of a future undertaking valid in law. A mere moral obligation, which does not arise out of a pre-existing legal duty, will not support a promise.

bailees. So the delivery of a chattel on trial, pending a negotiation for a sale, to be kept at a price named or returned, creates a bailment mutually beneficial to the parties; the bailee is not liable for a loss or injury to property, where he has taken due or reasonable care of it. So the delivery of goods to a party for use under a contract that they shall become his on his paying a certain sum, is to be treated as a bailment rather than a conditional sale;3 but there is certainly an element in the contract not found in a simple bailment; so that an action by the bailee against a trespasser for taking the property before the day fixed for payment, will not bar a second action by the vendor to recover its value.'

There is a clear distinction between the case of a delivery of a chattel on a condition, that the party receiving it shall try it and keep it at a price named or return it within a given time in case he does not like it, and a present sale of a chattel giving the buyer the privilege of returning it after a trial. There is a condition in each of these contracts; in the first, a condition on which the sale is to take place; and in the second, a condition on which the sale may be rescinded. The right to rescind depends upon the terms of the contract; it is to be exercised in the time and manner agreed upon by the parties."

§ 86. The action of assumpsit lies for the recovery of money appropriated or misapplied by the defendant. It lies on a valid promise made by the defendant to a third person, for the benefit of the plaintiff. Under the present practice an action for money had and received to the

1 Chamberlain v. Cobb, 32 Iowa, 161; Maxwell v. Henston, 67 N. C., 305. 2 Hunt v. Wyman, 100 Mass., 198; De Fonclear v. Shottenkirk, 3 John. R., 170; Nichols v. Roland, 11 Martin, 192.

3 Becker v. Smith, 59 Pa. St., 469. In Pennsylvania a sale and delivery with an agreement that the title shall remain in the vendor until the price is paid, is regarded as fraudulent, and is held void as against the creditors of the vendee. Heppe v. Speakman, 7 Phila. R., 117; Martin v. Mathias, 14 S. & R., 214; it is not regarded as fraudulent where the property is and is to be employed in the service of the vendor until paid for. Lehigh Co. v. Field, W. & S., 232; Sterling & Son v. Goodrich, 6 Pittsburgh Legal Journal, N. S., 174. A like decision was made in Wait v. Green, 36 N. Y., 556, and overruled or qualified in Ballard v. Burgett, 40 N. Y., 314; see Sargeant v. Metcalf,5 Gray, 506; Hart v. Carpenter, 24 Conn., 427; Bigelow v. Huntley, 8 Vt., 151.

4 Hasbrouck v. Lounsbury, 26 N. Y., 593.

Hasbrouck v. Lonnsbury, supra, and Hunt v. Wyman, supra; Bailey v. Colly, 34 N. H., 29; Vincent v. Cornell, 13 Pick., 294.

6 Giles v. Bradley, 2 John. Cas., 253; Lord v. Kenny, 13 John. R., 219; Pinney v. Hall, 1 Hill, 89; see also Burrell v. Root, 40 N. Y., 496.

7 Dumond v. Carpenter, 3 John. R., 183; Weston v. Barker, 12 John. R., 276

* Del. & Hudson C. C. v. Westchester Co. Bank, 4 Denio, 97.

plaintiff's use may be maintained the same as under the old practice; without a demand, where it is received under an engagement to remit or pay it over without delay; and on a demand, where it is received as a deposit or under circumstances that justify the agent or bailee in waiting for instructions.2

Where a person accepts money from one man to deliver over to another, an action of assumpsit lies for not paying it over. And where an agent undertakes to effect an insurance, and fails to do so, it is his duty to give notice to his principal, for a breach of which duty the action of assumpsit will lie.*

A gratuitous undertaking, not accompanied by a bailment of any kind, as to obtain a policy of insurance, or to make an entry of goods for a friend at the custom-house, entered upon, binds him to act in good faith and with reasonable care; it does not render him responsible for the use of anything more than ordinary skill, or that degree of knowledge and skill usually possessed by men in his situation or business."

§ 87. The Contract. An ingenious writer in the American Jurist, maintains that there is, in fact, no contract formed between the mandator and the mandatary; and that though the mandatary is liable for misfeasance in the execution of his trust, he is so, not by virtue of his contract, but for his tort. This theory is maintained in an elaborate article, the argu ment in which proceeds mainly upon the form of action, usually case,' which is brought for the violation of the trust; the question of liability being always tried and decided on the plea of not guilty. "The form of the action is not assumpsit, but case; the plea is not non-assumpsit, but not guilty. In this view of the matter there is no inconsistency, no principle is violated, everything is congruous. The bailor's want of right to sue for non-feasance, is entirely consistent with his right to sue for misfeasance. Assumpsit cannot be for misfeasance as such. If you sue for misfeasance, your action is grounded on tort, not on contract. It arises ex delicto, not ex contractu. If there be a binding contract to do, and misfeasance in the execution of it, you may, generally speaking, bring assumpsit; but then the gist of your action is the non-performance of the contract; and you must take care to declare on the non-perform

1 Stacy v. Graham, 14 N. Y., 492; Schwinger v. Hickok, 53 N. Y., 280, 286. Phelps v. Bostwick, 22 Barb., 314.

3 Wheatley v. Low, Cro. Jac., 667.

Callender v. Oelrichs, 1 Arnold R., 401.

Shiells v. Blackburne, 1 H. Black., 158; Mone v. Morgue, Cowper, 480; Percy v. Millandon, 20 Martin, 75; see Dartnall v. Howard, 4 Barn. and Cress..

345;

Heinemann v. Heard, 50 N. Y., 27, 35.

6 Vol. 16, page 275.

7 Idem, 262.

ance, and use the misfeasance as evidence of it; for if there be misfeasance, the contract is not performed as it was agreed to be, and of course assumpsit lies for the breach."

This distinction is very nicely drawn, but the difference between calling the undertaking of the mandatary a contract or a trust is not very broad. In either case, the obligation arises out of the relation of the respective parties to each other, and the tort or wrong consists in the failure to perform the act undertaken, with the degree of care which that obligation imposes upon him. Commentators and judges have uniformly spoken of this undertaking as a contract, treating and enforcing it as such, as often as it has been brought before a judicial tribunal, or discussed as an elementary question. It is none the less a contract because, in most cases, it is implied by law; whether a recovery may be had for its violation, depends upon the plaintiff's showing that the defendant has failed to discharge the obligations it cast upon him, that is, has failed to do the act with proper care. Though the form of the action be case, it is usual and necessary to incorporate into the complaint the substance of the contract, and the plea of not guilty puts in issue simply the allegations of damage or loss by the negligence alleged.' Other matters must be pleaded specially, as in actions of assumpsit. In the action of case, against a common carrier, the plea of not guilty operates only as a denial of the loss or damage through the default or negligence charged, but it does not put in issue the fact of the receipt of the goods by the defendant as a carrier for hire. nor the purpose for which they were received.

Assumpsit and case are in many instances concurrent remedies, under a practice so long established that it has interwoven itself with the first principles of the common law. Mr. Justice Littledale thus states the distinction between these two forms of action, from which we shall perceive how far the tort differs from a breach of contract: "Where there is an express promise, and a legal obligation results from it, there the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case, founded in tort, is the more proper form of action, in which the plaintiff, in

1 Appendix to Warren's Law Studies, 2 ed., p. 37; see also form of declara tion, Yates' Pleadings, 371; and So. Ex. Co. v. McVeigh, 20 Gratt. Va., 264. * Burnett v. Lynch, 5 B. and C., 609.