" The general principle, that in an action of assumpsit there must be either an express or an implied promise from one party to the other; that there must be privity of contract of some kind between them, is believed to hold good'in all instances. It is not sufficient that moneys are advanced, or services rendered for a party, to make him liable therefor. They must have been authorized, either expressly or impliedly, or must have been subsequently sanctioned by him. There must be something, out of which an undertaking can be raised; some privity must exist between them. Rensselaer Glass Factory v. Reid, 5 Cow. 603; Carter v. Gault, 13 Pick. 531; Butterfield v. Hartshorn, 7 N. H. 350."
1 Homes v. Dana, 12 Mass. 190; Farmington Acad. v. Allen, 14 Mass. 172; Amherst Acad. v. Cowls, 6 Pick. 427; Cong. Soc. in Troy v. God-dard, 7 N. H. 435; University of Vermont v. Buell, 2 Vt. 48; Macon v. Sheppard, 2 Humph. 335; Ives v. Sterling, 6 Met. 310.
2 21 Am. Jur. 282.
1 Phillips Limerick Acad. v. Davis, 11 Mass. 115; Bridgewater Acad. v. Gilbert, 2 Pick. 579; ante, § 193, 206; Crosbie v. M'Doual, 13 Ves. 157. In this case the Lord Chancellor said: "Various instances may be put of nudum pactum at law. If one man says to another, he will give him £1000 to purchase a house, and actually pays part, that is a mere voluntary promise, nudum pactum, not the foundation of an action. But put the case of a declaration, stating a promise, in consideration that the plaintiff would agree for the purchase of a house; and leaving her own residence, would go and reside in that house, and execute the conveyance; and that the plaintiff did accordingly at the special instance of the defendant make the purchase; change her residence; and, that she had been obliged to pay the money under the contract; and the defendant refused to perform his promise; would that be nudum pactum, where one party does not merely pay, but does some act, like the consideration under the head of contract in the civil law, "Facie- utfacias'? Suppose, for instance, A., living in Jamaica, sends a cargo Do B., resident in London, who is not to receive any benefit,but is to deliver it over to another person, and is directed to insure. B. may refuse to receive the cargo; but if he consents to receive it, though it is for the benefit of the consignor, he is bound to make the insurance; and many actions have been brought upon that principle. I am not prepared to say this case goes the whole length of that; but it deserves consideration, whether a woman, having no desire to enter into this contract, no means of performing it, another person, not merely making a spontaneous promise, but causing her upon the faith of his promise to place herself in a situation insuring her ruin if he should not perform it; and having executed part, which is a strong indication of the nature of the transaction, cannot in equity be compelled to execute the remainder, though the particular forms of law might not enable the plaintiff to reach it by an action. The question is, whether this is a case of that description, or mere nudum pactum, with a performance of part, giving no action for the remainder? " "The principle of law upon these actions is, that though upon a mere voluntary promise an action does not lie, yet, if one man binds himself to pay, and does pay money in consequence of an obligation undertaken by another, the one has money, which, in equity and conscience, ought to be the money of the other; and that is not nudum pactum." expended in repairing a certain road, creates no liability to pay a third person who makes such repairs, although T. assumes to assign the promises to him; for there is no privity between the subscribers and the assignee of T.1 So, an agreement by a creditor to accept a certain percentage in full satisfaction of an overdue debt from the promisor, is void for want of consideration, although it be upon a condition that no other creditor should receive a greater percentage.2
§ 578. So, also, merely gratuitous services will afford no consideration upon which to raise an implied promise to pay their worth.3 Thus, voluntary assistance in saving property from fire;4 or the payment of the debts of another without request;5 or voluntarily securing property found afloat in a river,6 or beasts found straying,7-will not be good ground for an action. And this is upon the plain ground stated by Eyre, C. J.,8 that "it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should depend altogether for their reward upon the moral duty of gratitude." Another reason for this rule is to be found in the annoyance and expense to which every one might be subjected, if he were obliged to pay for services which he does not need or require, and which may be in their nature officious, although well intended. So, at common law, as children are not bound to support their parents, a promise to pay for such support, already furnished, is not binding.9
1 Van Rensselaer v. Aikin, 44 N. Y. 126 (1870).
2 Perkins v. Lockwood, 100 Mass. 249 (18G8).
3 See Roscorla v. Thomas, 3 Q. B. 234.
4 Bartholomew v. Jackson, 20 Johns. 28.
5 Jones v. Wilson, 3 Johns. 434; Menderback v. Hopkins, 8 Johns. 436; Beach v. Vandenburgh, 10 Johns. 361; Child v. Morley, 8 T. R. 610; Frear v. Hardenbergh, 5 Johns. 272.
6 Nicholson v. Chapman, 2 H. Bl. 254. See Baker v. Hoag, 3 Barb. 203; 7 ib. 113. In the very recent case of Chase v. Corcoran, 106 Mass; 286 (1871), it was held that a promise is implied by law from the owner of a boat who claims and receives it of one who has found it adrift and brought it ashore, to pay him for the necessary expenses of preserving the boat while in his possession.
7 Binstead v. Buck, 2 W. Bl. 1117.
3 Nicholson v. Chapman, 2 H. Bl. 254; Story on Bailm. § 169.
9 Stone v. Stone, 32 Conn. 142 (1864).
§ 579. There is, however, an exception to this rule, which is allowed by the maritime law in cases of salvage, which is a compensation for actual services rendered in rescuing property from destruction by the perils of the sea or by pirates. This exception is founded in an enlarged and liberal policy, both to prompt the generous motives of humanity in cases which are greatly encompassed with danger, to overcome the natural reluctance of fear, and to discourage the evil spirit of unrighteous gain and plunder, which, under the circumstances in which salvage is allowed, offers a temptation to acts which are easily concealed, and are wholly unjustifiable. Salvage, however, is not ordinarily allowed in cases where the services rendered are within the duty of the party rendering them. The amount of compensation is liberal, and in the nature of an honorary reward, and is determined by a court of admiralty in view of the circumstances of the case. The salvors have a lien therefor on the property saved.1
§ 580. So, also, where a party knowingly permits another to do certain work or labor for him, without interfering to prevent it, although such work may have been commenced without his order, yet an implied promise will be raised to pay for the value of such services, unless the circumstances of the case negative such a presumption.2 But, if a workman be employed to do a particular piece of work, and, without consulting his employer, he proceed to perform additional work, of which the employer has no knowledge, and to which he does not assent, the workman cannot recover therefor,-on the plain ground, that a man is not bound to pay for work which he did not authorize, and which he may not wish to have done,3 and of which, however beneficial it may be, he does not wish to bear the expense.
§ 581. Another exception to the general rule is to be found in the case of a mandate, which is a bailment in regard to which the mandatary or bailee agrees to do some act without recompense.4 No party is bound to make such a gratuitous engagement, nor after making it, is he bound to execute it. But if he accept it, and in executing it he do it amiss, so that through his negligence or heedlessness any damage ensue to the other party, he is responsible therefor. A mandatary is not answerable for his omissions or non-feasance of his engagement, even though special damage result, but only for his misfeasance.1 That is, he is not bound to begin to do it at all, but if he do begin, he must do it properly. Thus, where a party undertook, without reward, to carry several hogsheads of brandy from one cellar and deposit them in another, and he did it so negligently that one of the casks was staved, and the brandy lost; it was held that he was answerable for the damage, because of his carelessness, although he was not a common carrier, and performed the service gratuitously, but that he would not have been chargeable if the injury had been caused by the carelessness of some other person meeting him in the street.2
1 Abbott on Shipping, pt. 4, ch. 12; Bearse v. 340 Pigs of Copper, 1 Story, 314; The Ship Blaireau, 2 Cranch, 240.
2 Ante, § 11.
3 Hort v. Norton, 1 M'Cord, 22. 4 Story on Bailni. § 137.