Story Case

Robert Lingle said to William Camp: "I know of an excellent automobile worth $1,000, which I can buy for you for $800." Camp answered: "Well, I rely on your judgment, and I want a car, so I will appoint you my agent to buy the one you have in mind. Perhaps some day I can return the favor." Lingle replied that he would buy the car. A week later Camp asked Lingle if the car had been purchased. Lingle replied that it had not been bought, and that he did not have the time to look after the matter. Camp did not get the car, and brought suit against Lingle on an alleged contract for failure to make the purchase. Can Camp recover?

Ruling Court Case. Thome Vs. Deas, Volume 4 Johnson's Reports, New York, Page 84

Thome and Deas were joint owners of a brig called the Sea Nymph. The brig sailed on a voyage to a point in North Carolina, and was to proceed from that place to Europe or the West Indies. On the day the vessel sailed, Thorne and Deas had a conversation relative to insuring the vessel. Deas thereupon said that he would insure it immediately. However, he did nothing toward effecting any insurance, and the brig set out upon its voyage. In a storm, the vessel and its cargo went down.

This was an action brought against Deas, seeking to hold him for the damages resulting from his failure to do as he promised. His defense was that his undertaking was without consideration and therefore was not binding upon him.

Decision: An agreement to do something for another is not binding unless there is some consideration for that agreement. Therefore an agreement to act as agent for another, or to do some act as an agent for another, imposes no liability upon the agent so long as he does nothing. He is under no obligation to do anything. But if he enters upon the duties of the agency and does them negligently, then he may be held as if his original undertaking had been supported by a consideration. Deas' promise to insure this boat was a promise unsupported by a consideration. He was under no obligation to do anything. He did nothing, and could not be held responsible for the damages resulting from his doing nothing.

Mr. Chief Justice Kent, who delivered the opinion of the court, said in part: "The chief objection raised to the right of recovery in this case, is the want of consideration for the promise. The offer on the part of Deas, to cause insurance to be effected was perfectly voluntary. If the party who makes this engagement, enters upon the execution of the business, and does it amiss, through the want of due care, by which damages ensue to the other party, an action will lie for misfeasance. But Deas never entered upon the execution of his undertaking and the action is for the nonfeasance. * * * *

"A short review of the leading cases will show, that, by the common law, a mandatory, or one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do and does it amiss. In other words, he is responsible for a misfeasance, but not for a non-feasance, even though special damages be claimed."

Judgment was given for Deas.

Ruling Law. Story Case Answer

Consideration: If the agreement is executory, i. e. one which contemplates future performance, there must be some consideration to make it binding. That is to say, if one person agrees without consideration to act for another, and then refuses to act, the other has no remedy. But if the person gratuitously acts for another and performs the services contemplated, the mere fact that he acted without consideration does not excuse him from duties and liabilities incidental to the agency.

In the Story Case, Camp does not have a cause of action against Lingle because a binding contract was not made. The statement "Perhaps some day I can return the favor" shows that no consideration passes from Camp to Lingle and therefore Camp cannot recover on Lingle's promise.