It has been held that one who negligently receives goods not directed to him, is as liable for default as a bailee with compensation. (xx) And that a lending for his own purposes by a bailee without compensation, is a conversion. (xy) *97 * Perhaps the consent of the finder to take charge of it may be absolutely implied, when the property is forced into his care by extraordinary exigencies, as by fire or shipwreck, and is not at once renounced by him; and from his consent some obligation of care may be implied. We apprehend, however, that no finder is liable for a refusal to take the property into his hands; and has no lien on it or any claim for compensation unless for property derelict at sea, which would be governed by the law of Admiralty. If he has any claim whatever, it cannot go beyond the expense and labor necessary for the preservation of the property. It was decided in England, that the finder of lost property has a valid claim against all the world but the owner; and that the place in which it is found can create no exception to this general rule. (y)1 In Massachusetts, it is held that the adjudged. The case which comes nearest to it is that of Nicholson v. Chapman, 2 H. Bl. 254. In this case a quantity of timber belonging to the plaintiff was placed in a dock on the bank of a navigable river, and being accidentally loosened, was carried by the tide to a considerable distance, and left at low water upon a towing-path. The defendant, finding it in that situation, voluntarily conveyed it to a place of safety, beyond the reach of the tide at high water; and when the plaintiff afterwards sent to demand the timber to be restored to him, the defendant refused to restore it without payment for his trouble and expense. The plaintiff thereupon brought an action of trover; and the court held, that the defendant had no lien upon the timber, and that the action was maintainable. Lord Chief Justice Eyre, however, intimated, in the course of his judgment that the defendant might recover for his trouble and expense in some form of action. After declaring that the common law gave the defendant no lien in such a case, and that this case could not be likened to a case of salvage, he said: "It is, therefore, a case of mere finding, and taking care of the thing found (I am willing to agree) for the owner. This is a good office and meritorious, at least in the moral sense of the word, and certainly entitles the party to some reasonable recompense from the bounty, if not from the justice of the owner; and of which, if it were refused, a court of justice would go as far as it could go towards enforcing the payment." The learned reporter, in a note to this passage, says: "It seems probable that in such a case, if any action could be maintained, it would be an action of assumpsit for work and labor, in which the court would imply a special instance and request, as well as a promise. On a quantum meruit the reasonable extent of the recompense would come properly before the jury." See Baker v. Hoag, 3 Barb. 113; s. c. 7 id. 303; Reeder v. Anderson, 4 Dana, 193. It might be found somewhat difficult, however, on technical grounds, to support such an action. See Bartholomew v. Jackson, 20 Johns. 28. See also vol. i. p. * 446, note (u). & (xx) Newhall v. Paige, 10 Gray, 366. (xy) Persch v. Quiggle, 57 Penn. St. 247. (y) In Bridges v. Hawkesworth, 7 E. L. E. 424, the plaintiff had picked up from the floor of the shop of the defendant a parcel of bank-notes, which he handed to the defendant to keep for the owner. They were advertised by the defendant; no one claimed them; three years elapsed; and the plaintiff demanded them, tendering the cost of the advertisement and an indemnity. The county court gave judgment for the defendant; and the Queen's Bench reversed the judgment. 1 A domestic servant in a hotel who finds a roll of bills in the public parlor is entitled to the bills as against the hotel-keeper, the owner not being found, Hamaker v. finder of a pocket-book left by the owner on a table in a shop, cannot hold it against the shopkeeper. (yy) The finder of a chose in action, as a note, check, or lottery-ticket, is not entitled to payment of the money due upon it; and one paying it with the knowledge that the holder came into possession by finding, would be held to pay the amount to the owner. (2) When the commission is gratuitous, there also the transaction is for the exclusive benefit of the bailor, and the bailee is held only for gross negligence. In deposit, the safe-keeping is the principal matter; in mandate, the work to be done with or about the thing. Hence the first is said to lie in custody, the second in feasance. The cases are not very numerous either as to deposit or mandate. Perhaps because both are gratuitous; and it is not often that persons undertake to do anything of importance for another without compensation. The name mandatum was first used in England by Bracton, who borrowed it from the civil law; afterwards the word "commission" was commonly used; but in recent times this is generally applied to dealings with factors, brokers, etc., for compensation, or to the compensation itself; and Sir William Jones returned to Bracton's word, which has since been generally used. It is an important and difficult question, what is the ground of the obligation of any party, who undertakes gratuitously to do anything in relation to any goods. Sir William Jones says he is bound to do, and is responsible for not doing. (a) But an examina (yy) M'Avoy v. Medina, 11 Allen, 548. (2) McLaughlin v. Waite, 5 Wend. 404. (a) Jones on Bailm. 56. He borrows By this principle from the civil law. Blanchard, 90 Penn. St. 377; and also a servant in a paper-mill, as against the millowner, to money found by him in paper-stock, Bowen v. Sullivan, 62 Ind. 281. In Durfee v. Jones, 11 R. I. 588, deciding, where the owner's agent offered an old safe to keep for sale, with the privilege of using, and the user on examination found a roll of bills between the casing and the lining, that, as against the owner, the finder was entitled to retain the money, although the owner first demanded the money, and then the safe with its contents as delivered. Durfee, C. J., said that, "Ordinarily the place where lost property is found does not make any difference." The finder of lost goods to be guilty of larceny, must at the time of finding have formed the intent of appropriating them to his own use, Griggs v. State, 58 Ala. 425; and the circumstances apparent at that time must determine whether he believed the owner could be found by reasonable diligence. Brooks v. State, 35 Ohio St. 46. See also State v. Dean, 49 Iowa, 73. K. tion of the cases would lead to a distinction not always regarded. If one has property intrusted to him, in order that he may do something in or about or with that property, if he accepts the property and the trust, this is a contract on a consideration; and he is liable in an action ex contractu for any failure in the discharge of his obligation. But if one be requested to do *99 something in relation to certain property, which is not put into his possession, nor any consideration paid him, although he undertake to do what is requested, he is under no obligation; there is no contract, because no consideration. He is therefore not liable for not doing; but if he begins to do, that is, enters upon the execution of his agency (for it is that rather than a mandate at common law), and then fails to do what he undertakes to do, he is liable for malfeasance; but only in an action ex delicto, and not ex contractu. (b) The case of Thorne v. Deas, (c) in fact, rests upon this distinction, and is therefore properly decided; but it is treated as a case of mandate, and an elaborate examination of authorities leads the learned court to the rule that no mandatary is liable, unless he, in addition to his acceptance of the property and the trust, enters upon an execution of it, and then fails therein. This rule, as applicable to the mandatary properly so called, admits much doubt, although we acknowledge that the question is encumbered with some difficulties. It has indeed been very strenuously insisted upon in several instances, by able and learned writers, that mandates and deposits are not contracts; and that the liability of bailees of this class. rests wholly upon the ground of tort. If this were to be taken as the true rule of law, it might occasion serious inconvenience. For it is doubtful whether gratuitous bailees could be made liable in tort in several cases to which it has generally been supposed that their liability extended. But we think there is no insuperable objection to considering mandates and deposits as contracts, and enforcing the obligations arising out of them by the action form, "Liberum est, mandatum non suscipere. Si susceptum non impleverit, tenetur. Quod mandatum susceperit, tenetur, etsi non gessisset." Balfe v. West, 22 E. L. & E. 506; s. c. 13 C. B. 466. (b) Wilkinson v. Coverdale, 1 Esp. 74; French v. Reed, 6 Binn. 308; Seller v. Work, 1 Marsh. on Ins. 299. (c) 4 Johns. 84. See infra, p. 103, note (f). 1 Jenkins v. Bacon, 111 Mass. 373, decided that a gratuitous bailee who bought a bond at the plaintiff's request, which he was to keep for him and collect the coupons for the benefit of the plaintiff's wife, and who subsequently sent the bond to the wife without her or the plaintiff's authority, was liable for its loss without regard to the question of diligence or negligence on his part. Morton, J., dissented, relying on Heugh v. London, &c. Co., L. R. 5 Ex. 51, on the ground that it was for the jury to say whether under the circumstances the bailee was negligent in undertaking to send, or in the mode of sending, the bond. — K. of assumpsit. It is obvious that the only objection to so considering them is the alleged want of a sufficient consideration. But we regard it as well settled by the authorities, that the delivery and acceptance of the goods constitute a sufficient considNor do we regard it as an unreasonable *100 eration. (d) (d) This was adjudged, for the first time we believe, in the King's Bench, in 44 Eliz. in the case of Riches v. Brigges, Yelv. 4; s. c. Cro. E. 883. This case was sanctioned to the fullest extent by Lord Holt, in Coggs v. Bernard. He there says: "There has been a question made; if I deliver goods to A, and in consideration thereof he promises to redeliver them, if an action will lie for not redelivering them: aud in Yelv. 4, judgment was given that the action would lie. But that judgment was afterwards reversed, and, according to that reversal, there was judgment afterwards entered for the defendant in the like case, Yelv. 128. But those cases were grumbled at, and the reversal of that judgment in Yelv. 4, was said by the judges to be a bad resolution, and the contrary to that reversal was afterwards_most solemnly adjudged in 2 Cro. 667, Tr. 21, Jac. 1, in the King's Bench, and that judgment affirmed upon a writ of error. And yet there is no benefit to the defendant, nor no consideration, in that case, but the having the money in his possession, and being trusted with it, and yet that was held to be a good consideration. And so a bare being trusted with another man's goods must be taken to be a sufficient consideration, if the bailee once enter upon the trust, and take the goods into his possession." Wheatley v. Low has always been considered as good law from that time to this. We are not aware that any adjudged case has cast any doubt upon it, at least so far as the point in question is concerned. On the other hand, there are numerous cases in which assumpsit has been sustained on no other consideration than what existed in that case. Thus in the case of Shiells, as signee of Goodwin v. Blackburne, I H. Bl. 158, the defendant, who was a general merchant in London, having received orders from his correspondent in Madeira to send thither a quantity of leather cut out for shoes and boots, employed Goodwin, the bankrupt, who was a shoemaker, to execute the order. Goodwin accordingly prepared the leather for the defendant, and at the same time prepared another parcel of the same kind of leather on his own account, which he packed in a separate case, to be sent to Madeira on a venture, requesting the recommenda tion of the defendant to his correspondents in the sale of it. The two cases were sent to the defendant's house, with bills of parcels; and he, to save the expense and trouble of a double entry at the custom-house, voluntarily and without any compensation, by agreement with Goodwin, made one entry of both the cases, but did it under the denomination of wrought leather instead of dressed leather, which it ought to have been. In consequence of this mistake, both cases were seized, and this action was brought by the assignees of Goodwin, to recover the value of the leather which he had prepared on his own account. The first count in the declaration stated, that the bankrupt before his bankruptcy was possessed of a quantity of leather, which he designed to export to the island of Madeira, for which purpose it was necessary that a proper entry of it should be made at the custom-house; that the defendant in consideration that the bankrupt would permit him to enter the said leather at the custom-house, undertook to enter it under a right denomination; that the bankrupt, confiding in the undertaking of the defendant, did permit him to enter it at the custom-house for exportation; that the defendant did not enter it under a right denomination, but, on the contrary, made an entry of it under a wrong denomination, by means whereof, &c. If there can be any possible doubt whether this count is wholly in assumpsit, it may be observed, that it was joined with a count for goods sold and delivered, and a count on a quantum meruit. In Whitehead v. Greetham, McClel. & Y. 205, in the Exchequer Chamber, the declaration stated, that whereas the plaintiff, at the special instance and request of the defendant, retained and employed the defendant to lay out a certain sum of money for the plaintiff, in the purchase of an annuity, to be well and sufficiently secured, he the said defendant undertook to use due and sufficient care to lay out the said sum of money in the purchase of an annuity, the payment whereof should be well and sufficiently secured; and the said plaintiff in fact saith, &c. Judgment having been given for the plaintiff in the King's Bench, a writ of error was brought and the error relied on was, that no sufficient considera doctrine upon principle. It is true that the bailee does not ordinarily derive any benefit from such a transaction; * 101 but this is not necessary in order to constitute a good consideration. It is sufficient, if an injury accrues or may accrue to the bailor, or if he parts with a present right. That such is the case, it would seem that there could be no doubt. He intrusts his goods to the bailee, and thereby renders them liable to be lost or injured. He parts with his present control over them, and perhaps renders himself unable to give the trust to any one else, or to execute it himself. But although it thus appears that gratuitous bailees may be made liable ex contractu, if they have not performed their contract, it is obvious that they may also be made liable ex delicto, if they have committed a tort upon the property intrusted to them. * 102 And it is in reference to their liability ex delicto that the * distinction, which has occasioned so much discussion in our books, between non-feasance and misfeasance becomes important. It seems sometimes to have been supposed that this distinction has reference to their liability ex contractu; that a mandatary does not incur any obligation ex contractu until he enters upon the execution of his trust, but that he does incur such obligation when he enters upon the trust, and fails to go through with it or does it badly; and that if the mere delivery of the goods imposes such obligation, it is not on the ground that such tion appeared on the face of the declaration. The ground relied on, however, by Tindal, for the plaintiff in error, was, not that the intrusting the defendant with the money was not a sufficient consideration, but that it did not sufficiently appear from the declaration that that was the consideration of the defendant's promise. He said: "It was essential to the establishment of his case that the moving cause of the defendant's promise was the plaintiff's having intrusted him with this money to lay out, and there is nothing in the count in question to show that." Sed non allocatur, for per Best, C. J., delivering the judgment of the court: "The court has averred that the plaintiff, at the defendant's request, retained the defendant to lay out a sum of money in the purchase of an annuity and delivered him £700 for that purpose; and that the defendant undertook, and faithfully promised the plaintiff to use due and sufficient care to advance and lay out that money in the purchase of an annuity, the payment whereof should be well and sufficiently secured. Coggs v. Bernard decides, that the mere delivery of the article is abundant consideration. There the consideration was the delivery of brandy. The same consideration exists here, because money was delivered. It is said it does not appear that the delivery was the consideration of the defendant's promise. But the money was delivered by the plaintiff's hand to the defendant, which, in law, raises a responsibility in the defendant for its application; and when that fact is found by the jury, and that immediately after a promise was made by the defendant to the plaintiff, must it not be taken that the promise was in consideration of the delivery?" The case of Doorman v. Jenkins, 2 A. & E. 256, is equally in point. That was an action of assumpsit, and the declaration was very similar to those that we have already considered, and no objection taken to it. See also Shillibeer v. Glyn, 2 M. & W. 143; Rutgers v. Lucet, 2 Johns. Cas. 92; Robinson v. Threadgill, 13 Ired. L. 39. And see ante, vol. i. p. * 447 ; Eddy v. Livingston, 35 Mo. 487; Delaware Bank v. Smith, 1 Edm. Sel. Cas. 351. |