General average to be adjusted by contribution, viz. Pilotage 40.-Entry 3,50-Harbour master 1,25, 44,75 39,59 Commissions 20,93 -} 160,85 245,19 Commission for collecting and settling the general charges was not entirely excluded in Hassam v. St. Louis Perpet. Ins. Co. 7 Louis. Ann. Rep. 17. There was an allowance of 2 per cent. commission in Barnard &c. v. Adams &c. 10 How. 308. 7. Usually owner of ship recovers from insurer. In New York it is a settled rule that a party who is obliged to pay and bear charges, as owner of the ship, is entitled, even if a case for contribution exists, to recover the whole of it, in the first instance, of the insurer upon the ship, and to leave it to him to call upon the owners or insurers of the cargo and freight for their contributory shares. Maggrath v. Church, 1 Caines's Rep. 216; Vandenheuvel v. United Ins. Co. 1 Johns. Rep. 412; Watson v. Marine Ins. Co. 7 Id. 62. It is remarked by Kent, C. J., that Pothier in his Traité du Contrat d'assurance, (No. 52 and 164,) recognizes it as an established doctrine. 7 Johns. 62. Where, however, ship, freight and cargo belong to the same person, and the insurance is only on the ship, the owner is not to recover from the insurers the whole general average; for if he did he would be immediately answerable over to them for that proportion of the average which ought to be borne by the cargo and freight. Jumel &c. v. Mar. Ins. Co. 7 Johns. 424, 5. 8. Remedy for proportion of general average exists at law as well as in equity. A court of equity is a convenient forum for adjusting the claims of the different parties. When, however, the only dif ficulty is the ascertainment of the proportion to be paid in a particular case, if it can be ascertained without recourse to equity, there is no good reason why an action should not lie to recover it at law. It is the case of a loss incurred, which the law directs shall be borne by certain persons in their several proportions; and where the law gives a right generally to demand payment of another, it raises an implied promise in that person to pay. Berkley &c. v. Presgrave, 1 East 227. An action for general average may be maintained by the shipper of goods as well as by the owner of the ship. Dobson &c. v. Wilson, 3 Camp. 480. CHAPTER XXXVI. ACTION AGAINST A CORPORATION, PROFESSIONAL MAN, BROKER OR OTHER AGENT, FOR BREACH OF DUTY. 1. At common law, one undertaking to do an act without reward is not answerable for mere non-feasance. The case is different when the employment is actually entered upon; the undertaking must then be performed according to its terms. Will an action lie, when one party entrusts the performance of a business to another who undertakes to do it gratuitously and wholly omits to do it? Sir William Jones in his learned and classical essay on the law of bailments, considers this species of undertaking to be as extensively binding in the English law as the contract of mandatum in the Roman law; and that an action will lie for damage occasioned by the nonperformance of a promise to become a mandatory, though the promise be purely gratuitous. The civil law rested on the ground that good faith ought to be observed; since the employer, placing reliance upon that good faith in the mandatory, was thereby prevented from doing the act himself or employing another to do it. Inst. lib. 3, 27, 11. But a dif ferent doctrine prevails at the common law. That leaves such a promise to the conscience of the individual as a right of imperfect obligation. A carpenter or other workman promises to build or repair a house for the plaintiff and breaks this promise; the attempt to maintain an action against him has repeatedly failed where there was no consideration for the promise, and the case was one of mere non-feasance. Coggs v. Bernard, 2 Ld. Raym. 919; Elsee v. Gatward, 5 T. R. 149. These cases, and others reviewed by Kent, C. J., shew that by the common law one who undertakes to do an act for another, without reward, is not answerable for omitting altogether to do the act; he is not responsible for a mere non-feasance, even though special damages are averred. Thorne v. Deas, 4 Johns. 97. But although a mere agreement to undertake a trust, in future, without compensation, it is true, is not obligatory, yet if the trust be once undertaken and the employment actually entered upon, the party is bound to perform it according to the terms; and if he fail so to do an action lies against him. Coggs v. Bernard, 2 Ld. Raym. 919; Elsee v. Gatward, 5 T. R. 150; Rutgers v. Lucet, 2 Johns. Cas. 95; Thorne v. Deas, 4 Johns. 96. The plaintiff retains the defendant at his request to lay out £700 in the purchase of an annuity; the defendant promises to lay it out securely; and the plaintiff delivers him the money for that purpose. There is a sufficient consideration in the delivery of the £700. This casts it on the defendant to account for the same; and an action will lie for breach of his promise. Whitehead v. Greetham, 2 Bingh. 464, 9 Eng. Com. Law Rep. 483. 2. Action against an agent for breach of duty to insure plaintiff's property. The supreme court of the United States has had before it cases resting on the general principle that an agent is bound to pursue the orders of his principals, and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure, Manello &c. v. Barry, 3 Cranch 439, 1 Curtis 631; and turning on the particular obligation of a merchant residing in England to insure for his correspondent abroad. Randolph v. Ware, 3 Cranch 503, 1 Curtis 650. The law respecting this obligation appears to be settled in three instances. 1. A merchant abroad who has effects in the hands of his correspondent in England, has a right to expect that the latter will obey an or der to insure, because the former is entitled to call his money out of the other's hands when and in what manner he pleases. 2. Where the merchant abroad has no effects in his correspondent's hands, yet if the course of dealing between them is such that the one has been used to send orders for insurance and the other to comply with them, the former has a right to expect that his orders for insurance will still be obeyed unless the latter give him notice to discontinue that course of dealing. 3. A merchant abroad sending bills of lading to his correspondent, may engraft on them an order to insure as the implied condition on which the bills of lading shall be accepted, which the other must obey if he accept them, for it is one entire transaction. Smith v. Lascelles, 2 T. R. 189; Webster v. De Tastet, 7 T. R. 153. In other cases-for example, the insurance of a housethough one party, without reward, undertake to procure insurance for another, yet if he proceed to carry his undertaking into effect, by getting a policy underwritten, but does it so negligently or unskilfully that the other can derive no benefit from it, he will be liable to an action. Wilkinson v. Coverdale, 1 Esp. 75; 4 Johns. 100. But if one of two joint owners of property, with a view to the benefit of each, and without other reward, undertake to have the property insured and fail so to do, no action will lie against him for such failure. Thorne v. Deas, 4 Johns. 84; ante, p. 395. 3. Action against broker who effected insurance, for not using diligence to get the loss settled; or for other breach of duty. In England the character of a broker is well known to the law; his duties are defined by the common law and by statutes; and there may be an action against him founded on the violation of duty. 3 Adol. & El. N. S. 515. An insurance broker who effects insurance, and is entitled to a commision for effecting it, may, if he choose to part with his lien, hand over the policy to the assured as soon as it is effected, and his responsibility will then be at an end; but if he retains the policy in his hands, he is bound to use all reasonable diligence to get the underwriters to settle and pay the loss, and if he fail to use such diligence, an action will lie against him. Bousfield v. Creswell, 2 Camp. 545. An action against a broker may be founded upon a breach of duty, arising by necessary inference from the terms of the contract between him and the plaintiffs. Boorman v. Brown, 3 Adol. & El. N. S. 527, 43 Eng. Com. Law Rep. 851, 11 Clark & Fin. 1. 4. Action against a bank for failing to give due notice of dishonour; or against a bank or other corporation for denying to a stockholder the benefit of his stock. It has long been decided in the United States, that duties imposed on corporations by law and benefits conferred at their request, raise implied promises, for the enforcement of which, an action will lie. Bank of Columbia v. Patterson, 7 Cranch 305,6; Sargent &c. v. Franklin Ins. Co. 8 Pick. 98; Wyman v. Am. Powder Co. 8 Cush. 180. An action will lie against a bank or other joint stock company for improperly refusing to permit a person entitled to stock therein, to transfer the same, The King v. Bank of England, Dougl. 524; Bank of England v. Moffatt &c. 3 Brown's C. R. 260; Sargent &c. v. Franklin Ins. Co. 8 Pick. 90; Morris &c. v. Mechanics Bank, 10 Johns. 484; Kortwright v. Buffalo Com. Bank, 20 Wend. 91; or for improperly refusing to give him a certificate of his ownership, Hussey v. Manuf. & Mech. Bank, 10 Pick. 415; Wyman v. Am. Powder Co. 8 Cush. 168; or refusing to register his name or illegally forfeiting his shares, Catchpole v. Railway Co. 1 El. & Black. 111, 72 Eng. Com. Law Rep. 111; or otherwise denying him the benefit thereof, Gray v. Portland Bank, 3 Mass. 364; Howe v. Starkweather, 17 Id. 240. The action will of course fail when another person is shewn to have a better right to the stock than the plaintiff has. Turner v. Marblehead Ins. Co. 10 Mass. 481. But it is not a valid objection that the name of the assignor on the back of the certificate was written by him in blank, and the blank filled up with an assignment to the plaintiff. Kortright v. Buffalo Com. Bank, 20 Wend. 91; 22 Id. 348; ante, p. 134, 5. If it be the custom of a bank receiving a note for collection, to cause notice of dishonour to be given to the endorsers, and the bank deliver it to an agent for the purpose of giving notice, and legal notice is not given, an action may be maintained against the bank, when it does not appear that the agent employed by it was well qualified to execute the business committed to his care. Smedes v. Utica Bank, 20 Johns. 383; 3 Cow. 662. |