§ 852. A mandate is a bailment of personal property, in regard to which the bailee agrees to do some act without recompense.1 The only difference between a mandate and a deposit is, that the custody of the tiling is the principal object of the deposit, and the labor and service are merely incidental; and in a mandate, the labor and service constitute the principal object, and the custody is only incidental.2 A mandate must be in respect to some legal and definite act in futuro; for, if the act be either illegal, or wholly vague, or absurd, no such contract arises. If, however, the illegality arise from the private relation of the bailor to third persons, of which the bailee is ignorant, he will be entitled to an action for indemnity. Thus, if a trustee authorize a person to buy, or sell, or carry away, goods of his cestui que trust, in violation of his trust, the contract would be valid, if the mandatary were ignorant of the fraud. A mandate may be made either by express or implied assent; it may be conditional or absolute, general or special; it may be varied at the pleasure of the parties; and any party capable of contracting may be a party to this contract.3

§ 853. The same general rules which govern in cases of deposit are equally applicable to cases of mandate. Thus, both contracts must be voluntary and gratuitous, and both parties are bound by the same measure of diligence; that is, are responsible for gross negligence only.4 The parties may, however, for in the first case, the circumstances would indicate gross negligence on the part of the bailee, and in the other case, they would indicate the reverse. If, therefore, a person known not to be a surgeon or physician, and to have no peculiar knowledge or skill in the treatment of disease, be called in and afford gratuitous assistance to the best of his ability, he is not liable if he administer improper remedies.1

1 Story on Bailm. § 137. 2 Ibid. § 140.

3 Ibid. § 145, 146.

4 Elsee v. Gatward, 5 T. R. 143; Story on Bailm. § 174, et seq.; 2 Kent, Comm. 570; Shillibeer v. Glyn, 2 M. & W. 145; Nelson v. Macintosh, 1 Stark. 237; Dartnall v. Howard, 4 B. & C. 345; Stanton v. Bell, vary the responsibility implied by law, by means of a special contract. As, if a mandatary be known to possess certain skill or knowledge, and he agree to exert it in a particular case, he is responsible for losses arising from his omission to exercise it. So, also, such a special contract may be implied, either from the situation of the mandatary, or from the mere fact of his undertaking to do something requiring a certain amount of skill or knowledge.1 As, if a competent or skilful workman, or artificer in a certain trade, undertake to repair an article gratuitously, he is bound to exercise competent skill.2 So, also, where a physician undertakes to attend upon a sick person gratuitously, he would be liable for improper treatment growing out of gross negligence or ignorance, because his situation and undertaking imply skill.3 But if a person who is known to be unskilled do the work at the solicitation of a friend, and do it as well as he can, he is not liable for not doing it skilfully;4

2 Hawks, 146; Foster v. Essex Bank, 17 Mass. 479; Tracy v. Wood, 3 Mason, 132; Tompkins v. Saltmarsh, 14 S. & R. 275; Percy v. Millaudon, 8 Martin (N. S.), 75; 2 Kent, Comm. 569. See Story on Bailm. § 174, et seq.; McNabb v. Lockhart, 18 Ga. 495; Skelley v. Kahn, 17 I11. 170; Fulton v. Alexander, 21 Tex. 148; Kemp v. Farlow, 5 Ind. 462; Lampley v. Scott, 24 Miss. 528. Sir William Jones distinguishes between a mandate to do work about goods, and a mandate to carry goods from place to place, and holds in respect to the former, that the mandatary is bound to a degree of diligence and attention adequate to the performance of his undertaking, and, therefore, may be, in some cases, responsible for ordinary or slight neglect. Jones on Bailm. 50, 62, 117, 120. But see a thorough discussion of this point, maintaining the doctrine as stated in the text, in Story on Bailm. § 174, et seq. And see Coggs p. Barnard, 2 Ld. Raym. 909; Shiells v. Blackburne, 1 H. Bl. 158; Moore v. Mourgue, 2 Cowp. 480; Story on Bailm. § 150; Nicolls v. Bastard, 2 C. M. & R. 659; Storer v. Gowen, 18 Me. 174.

1 Tracy v. Wood, 3 Mason, 132; Foster v. Essex Bank, 17 Mass. 479. See ante, Deposit. 2 Kent, Comm. 570, 571; Shiells v. Blackburne, 1 H. Bl. 158; Percy p. Millaudon, 8 Martin (x. 8.), 75; Tompkins p. Saltmarsh, 14 S. & R. 275; Story on Bailm. § 177, 182 a; Rooth p. Wilson, 1 B. & Al. 59.

2 Shiells p. Blackburne, 1 H. Bl. 158. See also Hyland p. Paul, 33 Barb. 241; Jourdan v. Reed, 1 Iowa, 185; Steamboat New World p. King, 16 How. 475.

3 Wilson p. Brett, 11 M. & W. 113; Slater p. Baker, 2 Wils. 359.

4 Shiells v. Blackburne, 1 H. Bl. 158; Moore p. Mourgue, 2 Cowp. 479; Whitney p. Lee, 8 Met. 91; Steamboat New World v. King, 16 How. 475.

§ 854. So, also, a mandatary has no special property in the mandate, but only a right of custody, unless he have incurred expenses; in which case he has a lien, and his rights of action are the same as those of a depositary.2 So, also, if the property increase in his hands, he is bound to restore all its earnings, increments, and gains. As, if a vehicle be delivered to be let for hire, he must account for the hire, as well as the vehicle. So, also, interest upon money must be returned; and the young of animals, born while they are bailed.3

§ 855. But although a mandatary is responsible for gross negligence, yet there is a distinction as to his liability in cases of non-feasance, and in cases of misfeasance. If he have entered upon the execution of the mandate, he is responsible for damages and losses resulting from gross negligence in the performance of his duty.4 But he is not responsible for a total omission of the undertaking, because, being a bailee without hire, his contract is without sufficient consideration;5 he may utterly reject and refuse to perform it; that is, he is bound to perform his duty well, if he perform it at all; but he is not bound to perform it at all.6 Thus, where a mandatary undertook to carry several hogsheads of brandy from one cellar to another, and he did it so negligently that one cask was staved in, it was held, that he was answerable for the damage, although he was not a common carrier.1 So, also, if A. should intrust a letter to B. containing money, to pay a note due on a particular day, and B. should undertake gratuitously to deliver the letter, and take up the note, and should neglect so to do, and thereby the note should be protested, and A. should suffer a special damage, - B. would be liable; for his acceptance of the letter would be deemed a part execution, and a sufficient consideration to support the action.2 Yet, if he had only agreed to take the letter, but had not received it, the agreement would be a nude pact.3 So, if a bank should undertake gratuitously to collect a note, upon the note being indorsed in blank, and left in the bank, and should neglect to issue due notice to the indorsers of the dishonor, when duly presented, it would be responsible.4 So, also, where A. received post notes, payable at a future day and in another State, and agreed gratuitously to account for the same to B. if collected, or to return them, if payment thereof should be refused, he is bound to cause the notes to be duly presented, and to account for the payment, or to return them.6 But where a promissory note is delivered to a bailee on his gratuitous undertaking "to secure and take care of it," he is not bound to take any active measures to obtain security, but to keep the note carefully and securely, and receive the money due thereon when offered, - and without proof of fraud or gross negligence the bailor cannot recover in case of loss.6

1 Wilson v. Brett, 11 M. & W. 113. See Jones on Bailm. 139, 140. 2 Story on Bailm. § 150; Nicolls v. Bastard, 2 C. M. & R. 659; Angell on Carriers, § 41.

3 Story on Bailm. § 144, 146, 150, 155, 158-162.

4 See Bland v. Womack, 2 Murph. 373; Kellogg v. Sweeney, 1 Lans. 403; Eddy v. Livingston, 35 Mo. 487.

5 See Balfe v. West, 13 C. B. 466; 22 Eng. Law & Eq. 506.

6 Mandatum non suscipere cuilibet liberum est; susceptum autem con-summandum est, aut quamprimum renuntiandum, ut per semetipsum aut per alium eandem rem mandator exequatur. Inst. Lib. 3, tit. 27, § 11; Elsee v. Gatward, 5 T. R. 149; Beauchamp v. Powley, 1 Mood. & Rob. 88; Nelson v. Macintosh, 1 Stark. 237.

1 Coggs v. Bernard, 2 Ld. Raym. 909. See also Jenkins v. Motlow, 1 Sneed, 248; Kirtland v. Montgomery, 1 Swan, 457.

2 See Robinson v. Threadgill, 13 Ired. 41.

3 Shillibeer v. Glyn, 2 M. & W. 145; Balfe v. West, 13 C. B. 466; 22 Eng. Law & Eq. 506; French v. Reed, 6 Binn. 308; Ferguson v. Porter, 3 Fla. 38.

4 Do not these cases come within the rule of part execution ? Would there be any remedy without part execution? Shillibeer v. Glyn, 2 M. & W. 145; Wheatley v. Low, Cro. Jac. 668; Beauchamp v. Powley, 1 Mood. & Rob. 38; Coggs v. Bernard, 2 Ld. Raym. 909; Story on Bailm. § 170-171 d; Wilkinson v. Coverdale, 1 Esp. 75; Parry v. Roberts, 3 Ad. & El. 118; Bainbridge v. Firmston, 1 Per. & Dav. 2.

5 Medomak Bank v. Curtis, 24 Me. 36.

6 Whitney v. Lee, 8 Met. 91. See Curtis v. Leavitt, 15 N. Y. 9, 167.

§ 856. If the mandatary be guilty of misuse, or fraud, or any act inconsistent with his contract, he will be responsible for all losses resulting therefrom.1 The burden of proof is, however, on the mandator, to make out negligence or fraud.

§ 857. The contract of mandate may be determined in various ways. 1st. By the death of the mandatary, when the mandate is wholly unexecuted; for if it be executed in part, his personal representatives may, in some cases, be obliged to complete it. So, if there be joint mandataries, and the bailment be of such a nature as to require the united advice or skill of all, the death of one dissolves it; but not otherwise. 2d. By the death of the mandator, when the mandate is wholly unexecuted. If, however, it be partially executed, his representatives may be bound to complete it, in order to prevent an injury to the mandatary. 3d. By incapacity of the parties, - as by marriage, if the party be a female; or by insanity, or idiocy. 4th. By a renunciation of his agreement by the mandatary, before he has entered upon the execution of it; or by the express or implied revocation by the mandator: and such dissolution operates from the time notice is received. 5th. By the bankruptcy of the mandator. Where the mandatary is to execute a mere authority, his own bankruptcy will not ordinarily dissolve it; although it may, if the act to be done involve the expenditure of money.2

1 Story on Bailm. § 188, 213; De Tollenere v. Fuller, 1 Rep. Const. Ct. 121; Ulmer v. Ulmer, 2 Nott & M'Cord, 489; Catlin v. Bell, 4 Camp. 183; 2 Kent, Comm. 572.

2 Story on Bailm. § 202-212; 1 Bell, Comm. § 413, 4th ed.; Pothier, Contrat de Mandat, n. 105; Story on Agency, § 409, 490; 2 Roper, Husband and Wife, 67, 73; Hunt v. Rousmaniere, 2 Mason, 244; 8 Wheat. 174; Salte v. Field, 5 T. R. 215; Minett v. Forrester, 4 Taunt. 541; Parker v. Smith, 16 East, 382; Story on Agency, § 486.