Among the early authorities on the action of assumpsit are cases of gratuitous undertakings.11 The gist of the action of assumpsit consisted in undertaking to do something and injuring the plaintiff by inducing him to rely on this undertaking. It is still the law that a voluntary undertaking may render one liable for the consequences of negligent failure to carry out the undertaking; but in most cases of the sort the cause of action is now regarded as based on a tort.12 In one class of cases, however, the transaction is still regarded as contractual, namely, gratuitous agency, bailment, or trust. There is no technical difficulty in finding a consideration for a bargain in such cases if a bargain was intended. Allowing another to act as a gratuitous agent, bailee, or trustee, is a detriment which may support the promise of the agent, bailee, or trustee. The difficulty, however, is that the parties ordinarily in a gratuitous transaction do not in fact exchange the promise for this permission.13 It would have been better perhaps if a remedy in these cases had been left to the law of torts, unless a real bargain was contemplated. The leading case on the subject is Coggs v. Bernard,14 where a defendant was held responsible for damage to goods caused by his neglect while he was carrying them, though he was not a common carrier, and was to receive no compensation. Similarly in other cases of gratuitous bailment, a defendant has been held liable in an action of assumpsit for a failure to use care in regard to the goods bailed.15 So a gratuitous agent is liable for failure to exercise the degree of skill which he assumes to have,16 and a gratuitous trust is subject to the same rule.17 In many of the decisions the question arose upon the pleadings and raised only the point whether a gratuitous bailment, agency or trust, might be a valid consideration, if, as was stated in the declaration to be the fact, the parties had so agreed. That the consideration would be valid if bargained for, has already been said. The degree of care which one, who assumes or undertakes a certain act, is held bound to exercise depends upon the degree of skill which he professes. The ordinary gratuitous bailee is generally said to be liable only for gross negligence.18 But one who professes special skill will be liable for failure to use that skill. The discussions in regard to this question show that the true nature of the liability is not contractual, for, if it were, the only question would be-what was the defendant's promise.19 Aside from the special cases of agency, bailment, and trust, there is little modern authority for holding that a mere gratuitous undertaking creates a contractual liability.20 And in any case

St. 330 See also Bellas v. Hays, 5 6. & R. 427, 439; Geiger v. Cook, 3 W. & S. 266.

9 White v. Lee, 14 Fed. 789; Harlow v. Putnam, 124 Mass. 553; Marston v. Swett, 82 N. Y. 526; Angier v. Eaton, C. & B. Co., 98 Pa. St. 694. As to recovery of license fees already paid, see Stanley Rule ft Level Co. v. Bailey, 45

Conn. 464, and 3 Robinson on Patents, Sec.1247.

10 Saltus v. Belford Co., 133 N. Y. 499, 31 N. E. 518.

11 See, e. g., 2 Hen. IV, 3, PL 9.

12 See an article by Professor Beale, Gratuitous Undertakings, 5 Harv. L. Rev. 222; Bidley v. Walker, 29 Mo. 407, 408.

13 See supra, Sec. 112.

14 Ld. Raymond, 909; 1 Smith Leading Cases, * 199.

15 Riches v. Briggs, Yelv. 4; Pickas v. Guile, Yelv. 128; Wheatley v. Low, Cro. Jas. 668; Hart v. Miles, 4 C. B. (N. S.) 371; Doorman v. Jenkins, 2 Ad. & El. 256; Robinson v. Threadgill, 13 Ired. Law, 39.

16 Wilson p. Brett, 11 M. & W. 113. The defendant in this case rode a horse gratuitously at the request of the owner to show him off in order to induce a sale, and was held liable for an injury to the horse while he was riding him. See also Whitehead v. Greetham, 10 Moore, 183, 2 Bing. 464.

17Jenkins v. Bacon, 111 Mate. 373, 15 Am. Rep. 33. See also Stone v. Demarest, 95 N. Y. Misc. 543, 159 N. Y. S. 800.

18 See Schouler on Bailments, Sec.Sec. 35

19 See, however, Whitehead p. Greets ham, 10 Moore, 183, 2 Bing. 464, which seems to hold a gratuitous bailment a sufficient consideration for a promise, not simply to exercise care but absolutely to return safely.

20In Hammond v. Hussey, 51 N. H. 40,12 Am. Rep. 41, a teacher of a high school, who undertook to examine candidates for admission, was held liable where recovery is allowed on the theory of a contract, the limits of recovery would doubtless be similar to those fixed in actions on the case for negligence so that the error in allowing recovery, for error it must be regarded, would be merely the use of a contractual remedy instead of a remedy in tort for redressing a legal wrong.21