Summary
In Robinson v. Threadgill, 35 N.C. 41, and in Bond v. Hilton, 44 N.C. 308, Nash, C. J., says: "Where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an action on the case founded on the tort is proper," and in Williamson v. Dickens, 27 N.C. 265, although the plaintiff could have sued in contract, he was allowed to sue in tort, and thereby avoid the defense of a discharge in bankruptcy.
Summary of this case from Mule Co. v. R. ROpinion
(December Term, 1851.)
1. Although there be a special contract to do or not to do a particular thing, a party is not bound to resort to it to recover damages for a breach, but may declare in tort, and say that the defendant has neglected to perform his duty.
2. In the case of a bailment, the bare being trusted with another's goods is a sufficient consideration for the engagement, if the bailee once enter upon the trust and takes the goods into his possession. As where a man undertakes to collect notes for another, without mentioning any consideration, and takes the notes for that purpose, there is a sufficient legal consideration for the engagement.
APPEAL from Bailey, J., at Fall Term, 1851, of MONTGOMERY.
The case is stated in the opinion of the Court.
(40) Strange for plaintiff.
Winston and Mendenhall for defendant.
This was an action on the case. Plaintiff put into the hands of defendant two notes on John H. Mask, of Anson County, which defendant promised to collect or return. Defendant gave plaintiff a receipt in words and figures as follows, to wit:
"WADESBORO, 17 September, 1845.
Received of A. Robinson the following notes to collect or return, as an officer, against John H. Mask, for $15, with interest from 13 January, 1843, with a credit of $2 paid 15 September, 1842. Also one against John H. Mask for $13.65, with interest from 1 January, 1844.
G.B. THREADGILL, D.S."
Plaintiff introduced evidence tending to show that Mask had property sufficient to satisfy the claims put into the hands of defendant, if ordinary diligence had been used. Defendant's counsel objected to the recovery, upon the ground that it had not been shown that defendant was an officer, nor was there any evidence to show that he was deputy sheriff. Plaintiff's counsel insisted that he had a right to recover against him as an individual. The court charged the jury that it was the duty of defendant, when he undertook to collect the notes put into his hands by plaintiff, to use ordinary diligence, such diligence as an ordinarily prudent man would exercise in the collection of his own money; that if he neglected to do this, and plaintiff by his negligence had lost his debt, they should find a verdict for the plaintiff. Under this instruction the jury found verdict for the plaintiff.
The defendant obtained a rule for a new trial, upon the (41) ground that there was evidence from the receipt itself that defendant was not only an officer, but that he was deputy sheriff, and, if so, that plaintiff could not recover against him, but must sue his principal.
This objection was not made upon the trial, but, upon the contrary, it was urged that there was no evidence that he was deputy sheriff, nor was there any instruction prayed that there was evidence to be submitted to the jury.
There was no evidence that defendant was deputy sheriff, other than the receipt.
With the motion for a new trial we have nothing to do. In this Court two objections growing out of the record have been pressed upon us. The action is in case. Plaintiff placed in defendant's hands several notes, for which he gave a receipt "to collect or return," neither of which he did. The first objection is that plaintiff has mistaken his remedy; he ought to have sued in assumpsit. Case is the appropriate remedy. Where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation and a consequential damage, an action on the case, founded on the tort, is proper. Burnett v. Lynch, 5 Barn. Adol., 609. Bailey, J., in delivering his opinion in the same case, says: "Although there be a special contract, a party is not bound to resort to it, but he may declare on the tort, and say that defendant has neglected to perform his duty." In Gorett v. Roderidge, 3 East., 70, the same doctrine is held, Lord Ellenborough observing: "There is no inconvenience in suffering a plaintiff to allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and bringing the action for that breach rather than upon the breach of promise." Saunders Pl. and Ev., 338. Here (42) the law raised an obligation on defendant to do a particular act, to wit, to collect or return the notes, and he was guilty of a breach of that obligation. Plaintiff was at liberty to consider the breach of duty as his gravamen, and case was his appropriate remedy, though he might have sued in assumpsit.
The second objection is that there is no legal consideration for the contract on the part of defendant, as it was a simple promise on his part to do the act without reward, and he never entered upon its discharge. A consideration of some kind is absolutely necessary to the validity of every contract, but it need not be in money nor money's worth. In the case of a bailment, the bare being trusted with another's goods is a sufficient consideration, if the bailee once enters upon the trust and takes the goods into his possession. The leading case on this subject, and which has since ever been followed, is Coggs v. Barnard, Lord Raymond, 909. It is unnecessary to state the facts of that case; it is too familiar to the profession. In Smith's Leading Cases, the editors, in commenting on that case, state the principle, which is now the settled law, that the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. Here defendant undertook a duty for plaintiff, that of collecting or returning certain notes. If nothing more had taken place between the parties, the agreement would have been a nudum pactum, binding upon neither. But it did not; plaintiff delivered to defendant and he took into his possession the notes mentioned in the case, for the purpose and under the obligation to collect or return them. By so doing he entered upon his trust, and the law imposed the duty of performing it. There was, then, in law a sufficient legal consideration for the promise of defendant.
PER CURIAM. Affirmed.
Cited: Bond v. Hilton, 44 N.C. 311; Solomon v. Bates, 118 N.C. 315; Fisher v. Water Co., 128 N.C. 375; Peanut Co. v. R. R., 155 N.C. 165; Sprinkle v. Brimm, 144 N.C. 402; Mule Co. v. R. R., 160 N.C. 220.
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