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When one undertakes gratuitously to perform some act with respect to the property of another, he is not bound to do it; but if the act is performed, it must be done with some degree of care, and the mandatary will be held responsible for any injury or loss which may result from a want of due care in the manner of his performance. Melbourne v. Louisville & N. R. Co. (1889) 88 Ala. 443, 6 So. 762. One who has undertaken to act on behalf of another, though without reward, is bound to good faith and ordinary diligence in executing what he has assumed to do. Herrick v. Hodges (1859) 13 Cal. 431; Samonset v. Mesnager (1895) 108 Cal. 354, 41 Pac. 337; Schroeder v. Mauzy (1911) 16 Cal. App. 443, 118 Pac. 459.

A gratuitous agent is bound to act correctly in the performance of the assumed duty. Montillet v. Bank of United States (1823) 1 Mart. N. S. (La.) 365.

An agent, whether voluntary and gratuitous, or for compensation, is responsible for a want of proper care and diligence. Williams v. Higgins (1869) 30 Md. 404.

One who undertakes to act for another, although gratuitously, is bound to use a due diligence and attention adequate to the trust reposed in him, to perform his engagement with good faith, and neither to do anything contrary to his trust, nor omit to do anything which the nature of his trust requires. Rutgers v. Lucet (1800) 2 Johns Cas. (N. Y.) 92.

Colyar v.

ance of his undertaking.
Taylor (1860) 1 Coldw. (Tenn.) 372,
1 Am. Neg. Cas. 825.

As a general rule a mandatary
whose engagement is merely gratui-
tous is bound only for ordinary dili-
gence, and liable only for gross neg-
lect, or breach of good faith. Mar-
shall v. Nashville R. & Light Co.
(1907) 118 Tenn. 254, 9 L.R.A. (N.S.)
1246, 101 S. W. 419, 12 Ann. Cas. 675.
If a mandatary merely 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 or service re-
lating to it, and actually enters upon
the execution of the business, then he
is bound to use a degree of diligence
and attention suitable to the under-
taking and adequate to the perform-
ance of it. If he does it amiss through
the want of due care, by which damage
ensues to the other party, an action
will lie for this misfeasance, and the
party thus injured can recover to the
extent of the injury. Jones v. Parish
(1845) 1 Pinney (Wis.) 494, 1 Am.
Neg. Cas. 848.

If a mandatary enter upon the execution of the business submitted to him, he is bound to use a degree of diligence and attention adequate to the performance of his undertaking, and if he do not, and damage ensue, he is liable to the mandator for his misfeasance. Kirtland v. Montgomery (1852) 1 Swan (Tenn.) 452.

The general principle that a mandatary is only liable for gross neglect implies a certain fidelity on his part, and the exercise of such care and prudence as, with reference to the particular subject of the bailment and the circumstances of the particular case, may be requisite for the perform

One who, as an act of kindness and courtesy, has received money belong. ing to another, and has undertaken to transmit it to him, is bound to perform his undertaking in good faith, and with due diligence and attention adequate to the trust imposed in him. Eddy v. Livingston (1865) 35 Mo. 487, 88 Am. Dec. 122, 1 Am. Neg. Cas. 799.

The captain of a steamboat who has undertaken to carry a sum of money from place to place is bound to use a degree of diligence and attention adequate to the performance of the trust. Jenkins v. Motlow (1853) 1 Sneed (Tenn.) 248, 60 Am. Dec. 154.

A gratuitous mandatary is liable for failure to use due diligence in collecting a promissory note. Herzig v. Herzig (1910) 67 Misc. 250, 122 N. Y. Supp. 440.

A bank from which securities belonging to a number of persons have been taken by burglars, and which has undertaken on behalf of the parties interested to negotiate for their return, is answerable for want of prop

er diligence, skill, and care in the performance of such an undertaking. Wylie v. Northampton Nat. Bank (1886) 119 U. S. 361, 30 L. ed. 455, 7 Sup. Ct. Rep. 268.

- especially where he holds himself out as possessing special and peculiar skill.

When a man undertakes specially to do a certain thing, he is chargeable for his neglect in doing it, because he had the goods committed to his custody upon those terms. Coggs v. Bernard (1703) 2 Ld. Raym. 909, 92 Eng. Reprint, 107, 5 Eng. Rul. Cas. 247, 1 Am. Neg. Cas. 948.

If a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence. Shiells V. Blackburne (1789) 1 H. Bl. 159, 126 Eng. Reprint, 94, 2 Revised Rep. 750.

A gratuitous bailee whose profession or situation is such as to imply the possession of competent skill is liable for the neglect to use it. Wilson v. Brett (1843) 11 Mees. & W. 113, 152 Eng. Reprint, 737, 12 L. J. Exch. N. S. 264.

Where the profession of the bailee requires skill, a want of skill is imputable as gross neglect. Stanton v. Bell (1822) 9 N. C. (2 Hawks) 145, 11 Am. Dec. 744.

If he who undertakes the business of another is capable of managing it and neglects to do so with due care, he is answerable. If he is not capable, he is still answerable, for he ought not to have engaged to do that which he could not perform, and this is true in cases of gratuitous agencies as in others. Durnford v. Patterson (1820) 7 Mart. (La.) 460, 12 Am. Dec. 514.

The rule that an agent acting without compensation and solely for the accommodation of the principal is liable only for gross neglect is subject to qualification in the case of agents who hold themselves out as possessing special and peculiar skill in the subject-matter of the agency. Yates v. Ley (1917) 121 Va. 265, 92 S. E. 837. |

-but is bound only to exercise ordinary diligence where the undertaking is such as to require the employment of skill which he does not impliedly represent himself to possess. An agent without reward will not be required to use more diligence than would be used by a prudent man in the management of his own affairs. Pate v. M'Clure (1826) 4 Rand. (Va.) 164.

If one not in business as a collecting agent, or holding himself out as such, is requested by a friend to collect a particular debt for him, and he undertakes to do so without compensation, he is not liable for loss without proof of his negligence. Nixon v. Bogin (1886) 26 S. C. 611, 2 S. E. 302.

One who voluntarily undertakes to collect claims for another without compensation is bound to use only ordinary diligence. Moore v. Gholson (1857) 34 Miss. 372.

A gratuitous agent who has undertaken to collect notes for another, and has entered upon the duties of the agency, is bound to use such diligence as becomes a prudent man in reference to his own interests. Anthony v. Smith (1848) 9 Humph. (Tenn.) 508.

One who has gratuitously undertaken to collect a note for another must exercise ordinary diligence in respect thereto. Kincheloe v. Prieste (1886) 89 Mo. 240, 58 Am. Rep. 117, 1 S. W. 235, 1 Am. Neg. Cas. 794.

An agent who performs gratuitous services, and who is permitted to do so not because of his holding himself out to be particularly skilled in the matter, is only liable for the fair exercise of such capacity as he possesses. Briere v. Taylor (1905) 126 Wis. 347, 105 N. W. 817.

One who orders piping for the accommodation of another, without compensation, is not liable for an error of judgment as to the quantity required. Chapman v. Clements (1900) 22 Ky. L. Rep. 17, 56 S. W. 646. Conduct of class as standard of care.

The question whether the standard of care required is to be measured by the conduct of gratuitous bailees as a class, or of the particular bailee as an individual, is one which, curiously

enough, seems to have aroused very little judicial discussion. Ordinarily it seems to have been assumed that the correctness of the bailee's conduct in the individual instance is to be tested by the conduct of men generally, in a similar situation, rather than by the inquiry whether such conduct was such as might reasonably be expected of such an individual as the bailee. Doubtless the former is the test, ex necessitate, where there is no evidence of the known idiosyncracies of the bailee; but it is palpably unjust if I am permitted to hold my notoriously careless or absent-minded friend Henry Zany, to whom I have intrusted my Liberty bonds, liable for failure to exercise the same precautions that might reasonably be expected under like circumstances of my other friend, John Spotcash, the successful merchant. The decisions on the point, however, are apparently in conflict. Thus in Mechanics' & T. Bank v. Gordon (1850) 5 La. Ann. 604, it is said that a mandatary acting without reward is bound to use the same diligence that he uses in the care of his own property, and as it would not be permitted to men to plead that they were more negligent than men ordinarily are, the true rule is that gratuitous bailees are required to exercise the diligence which men of common prudence ordinarily use.

So, in Merchants' Nat. Bank v. Guilmartin (1893) 93 Ga. 503, 44 Am. St. Rep. 182, 21 S. E. 55, it is said that the conduct of men of common sense, as a class, in the care of their own property, is the standard.

On the other hand, in Foster v. Essex Bank (1821) 17 Mass. 479, 9 Am. Dec. 168, 1 Am. Neg. Cas. 502, it is said that the degree of care which is necessary to avoid the imputation of bad faith is measured by the carefulness which the depositary uses towards his own property of similar kind. For, although that may be so slight as to amount even to carelessness in another, yet the depositor has no reason to expect a change of character in favor of his particular interest, and it is his own folly to trust one who is not able or willing to sup

erintend with diligence his own con

cerns.

The gross negligence for which an agent acting without compensation will be liable is a question of fact, to be determined by reference to all the circumstances of the case, including the subject-matter and objects of his agency and the known character, qualification, and relations of the parties. What would be but slight negligence in the treatment of a matter of trifling importance might perhaps be gross negligence in dealing with concerns of momentous interest. And a stupid and ignorant man, while devoting all his powers to the duties of his agency, might be guilty of blunders of omission or commission which in one of higher qualification would be strong or conclusive evidence of culpable delinquency. Grant v. Ludlow (1857) 8 Ohio St. 1.

The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith, that is, shall use the degree of care in the performance of the undertaking which is measured by the carefulness which the depositary uses toward his own property of similar kind, under like circumstances. RUBIN v. HUHN (reported herewith) ante, 1190.

Liability of bailee as question for court or jury.

The line of distinction between what is and what is not sufficient diligence in the bailee under the circumstances is nice, and difficult to draw. Skelley v. Kahn (1855) 17 Ill. 170.

What constitutes gross negligence cannot be determined by any rule which will furnish a reliable test in all cases. It must be determined as a question of fact in each particular case by the jury, under proper instructions from the court.

United States.-Preston v. Prather (1890) 137 U. S. 604, 34 L. ed. 788, 11 Sup. Ct. Rep. 162, 1 Am. Neg. Cas. 599; Tracy v. Wood (1822) 3 Mason, 132, Fed. Cas. No. 14,130.

Arkansas. Gulledge v. Howard (1861) 23 Ark. 61, 1 Am. Neg, Cas. 752; Baker v. Bailey (1912) 103 Ark. 12, 39 L.R.A. (N.S.) 1085, 145 S. W. 532.

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Whitney v. Lee (1844) 8 Met. 91, 1 Am. Neg. Cas. 789. Missouri. Eddy V. Livingston (1865) 35 Mo. 487, 88 Am. Dec. 122, 1 Am. Neg. Cas. 799.

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New York. Patriska V. Kronk (1908) 57 Misc. 552, 109 N. Y. Supp. 1092; Bean v. Ford (1909) 65 Misc. 481, 119 N. Y. Supp. 1074.

North Carolina.-Bland v. Womack (1818) 6 N. C. (2 Murph.) 373, 1 Am. Neg. Cas. 811.

Ohio.-Griffith v. Zipperwick (1876) 28 Ohio St. 388, 1 Am. Neg. Cas. 545. Pennsylvania. Lancaster County Nat. Bank v. Smith (1869) 62 Pa. 47, 1 Am. Neg. Cas. 570.

Tennessee.-Kirtland v. Montgomery (1852) 1 Swan, 452.

Texas.-Fulton v. Alexander (1858) 21 Tex. 148, 1 Am. Neg. Cas. 836. Virginia. Carrington v. Ficklin (1880) 32 Gratt. 670.

Wisconsin.-Jones v. Parish (1845) 1 Pinney, 494, 1 Am. Neg. Cas. 848.

England. Doorman V. Jenkins (1834) 2 Ad. & El. 256, 111 Eng. Reprint, 99, 4 L. J. K. B. N. S. 29, 4 Nev. & M. 170.

But where the proof offered by the plaintiff is wholly insufficient to justify a jury reasonably to find the want of such ordinary diligence, it is within the province of the court to so instruct the jury. Schermer v. Neurath (1880) 54 Md. 491, 39 Am. Rep. 397, 1 Am. Neg. Cas. 775; Cadwell v. Peninsular State Bank (1917) 195 Mich. 407, 162 N. W. 89; Gerrish v. Muskegon Sav. Bank (1904) 138 Mich. 46, 100 N. W. 1000, 4 Ann. Cas. 1083, 17 Am. Neg. Rep. 81; Cannon River Mfrs. Asso. v. First Nat. Bank (1887) 37 Minn. 394, 34 N. W. 741, 1 Am. Neg. Cas. 531; Hibernia Bldg. Asso. v. McGrath (1893) 154 Pa. 296, 35 Am. St.

Rep. 828, 26 Atl. 377; Hirsh v. Anderson Hotel Co. (1914) 58 Pa. Super Ct. 387; Spooner v. Mattoon (1868) 40 Vt. 300, 94 Am. Dec. 395, 1 Am. Neg. Cas. 841; Whitney v. First Nat. Bank (1882) 55 Vt. 154, 45 Am. Rep. 598, 1 Am. Neg. Cas. 582.

Presumptions arising from fact that depositary used the same care as to his own property.

The degree of care which is necessary to avoid the imputation of bad faith is estimated by the carefulness which the depositary uses towards his own property of a similar kind. Lloyd v. West Branch Bank (1850) 15 Pa. 172, 53 Am. Dec. 583, 1 Am. Neg. Cas. 574; Ray v. Bank of Kentucky (1874) 10 Bush. (Ky.) 344.

It will be difficult to presume fraud where the bailee was equally a loser with the bailor. McLean v. Rutherford (1843) 8 Mo. 109.

A gratuitous bailee is bound to the exercise of good faith; and if he keeps the goods intrusted to him with less care than he keeps his own of the same kind, this is a circumstance from which a jury might well infer a want of good faith; but the keeping of them as his own is an argument of his honesty. Griffith v. Zipperwick (1876) 28 Ohio St. 388, 1 Am. Neg. Cas. 545.

So, also, that the bailee has dealt with his own goods and the bailor's in the same way will raise a presumption of adequate diligence. First Nat. Bank v. Graham (1875) 79 Pa. 106, 21 Am. Rep. 49.

This, however, is not conclusive, as he may have been grossly negligent as to his own property. Carico v. Fidelity Invest. Co. (1894) 5 Colo. App. 56, 37 Pac. 29; Ray v. Bank of Kentucky (1874) 10 Bush. (Ky.) 344; Pattison v. Syracuse Nat. Bank (1880) 80 N. Y. 82, 36 Am. Rep. 582; Patriska v. Kronk (1908) 57 Misc. 552, 109 N. Y. Supp. 1092; Griffith v. Zipperwick (1876) 28 Ohio St. 388, 1 Am. Neg. Cas. 545; Colyar v. Taylor (1860) 1 Coldw. (Tenn.) 372, 1 Am. Neg. Cas. 825.

It is not enough that a bailee takes the same care of the property bailed as he does of his own, the conduct of men of common sense, as a class, in

the care of their own property, being the standard. Merchants' Nat. Bank v. Guilmartin (1893) 93 Ga. 503, 44 Am. St. Rep. 182, 21 S. E. 55.

b. Instances of failure to exercise requisite care.

As to the liability of a bailee for loss or injury occurring after he has notified the bailor of his wish to terminate the bailment, see IV. b, infra.

There are some decisions which, upon casual inspection, may be thought to turn on a want of due care, but which are in reality based on the fact that the bailee departed from the implied terms of the bailment; as in the case of the sea captain who, becoming the involuntary bailee of a chest sent on board his vessel by an intending passenger, who did not join the ship, caused it to be opened, and, finding a bag of money therein, locked the bag up in his cabin for safe-keeping, and who was held liable for its loss by theft. These will be found under subdivision V., infra.

-in keeping, carrying, or transmitting

money.

It is gross negligence for one who has gratuitously undertaken to transmit money to another to intrust it for that purpose to one who has recently entered the employ of such other, without the presentation of the usual draft or order therefor. Skelley v. Kahn (1855) 17 Ill. 170.

Gross negligence on the part of a gratuitous bailee of a package of bank notes is fairly to be inferred from the fact that he can give no account whatever of the disposition of the package after receiving it. Boyd v. Estis (1856) 11 La. Ann. 704.

It is competent for the jury to find that the keeping of money in a bedtick is gross negligence on the part of a gratuitous bailee. Patriska v. Kronk (1908) 57 Misc. 552, 109 N. Y. Supp. 1092.

In Bland v. Womack (1818) 6 N. C. (2 Murph.) 373, 1 Am. Neg. Cas. 811, it was held that the jury were warranted in finding one to whom money had been intrusted for the purchase of goods to have been guilty of a want of due care, where he placed such

money in a pocketbook, which he de posited in the outside pocket of his coat, and the money in some way was lost, where funds of his own, which he kept in the breast pocket of his coat, were not lost.

The jury were warranted in finding the captain of a steamboat liable for the loss by theft of a sum of money placed in the steamer's safe for safekeeping, where the danger of robbery was known, and it was possible to pass into the room where the safe was from an adjoining room, the door of which was not locked, and the robbery was committed in the daytime, while the officers of the vessel were engaged on the levee. Jenkins v. Motlow (1853) 1 Sneed (Tenn.) 248, 60 Am. Dec. 154.

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Where one who has received of money from another for the special purpose of taking it to a bank, paying it to the cashier, and having it indorsed upon such other's note, on his way to the bank met the teller and handed it to him, the jury is not warranted in finding a verdict for the defendant, the mandatary not having used a degree of diligence and attention adequate to the performance of his undertaking. Jones v. Parish (1845) 1 Pinney (Wis.) 494, 1 Am. Neg. Cas. 848.

It is competent for the jury to find the bailee of money guilty of gross negligence in keeping it in a cash box with his own in the taproom of a public house, open to the public. Doorman v. Jenkins (1834) 2 Ad. & El. 256, 111 Eng. Reprint, 99, 4 L. J. K. B. N. S. 99, 4 Nev. & M. 170.

—in keeping of securities by banks.

It seems proper to caution the reader that the question of the liability of banks with respect to securities intrusted to their care is broader than the particular aspect herein touched on. This note is concerned only with the duty and liability of gratuitous bailees; and it will be found that some courts have seized upon some incidental advantage, real or imaginary, accruing to the bank from the keeping of securities for a depositor, as constituting the bank a bailee for reward, although other courts, under like cir

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