New York Tartar Co. v. French

Citations

• 154 Pa. 273

Syllabus

<p>Gratuitous mandatory — Misfeasance—Non-feasance.</p> <p>At common law a gratuitous mandatory is liable in all cases of misfeasance, but not in any case of non-feasance.</p> <p>The reason for the distinction is that when the mandatory begins to act he gives undeniable evidence that he considers himself bound, and this may induce the mandant to neglect acting for himself; but where he only promises to act, there being no consideration, it is a mere nudum pactum, a promise without consideration, which imposes no legal liability.</p> <p>Duty to insure — Course of dealing.</p> <p>At common law a merchant is bound to insure for his correspondent, if, from the course of dealing between them, the one has been accustomed to send orders for insurance, and the other to obey them.</p> <p>Contract — Negligence—Failure to insure — Construction of contract by course of dealing.</p> <p>Plain tiff agreed to deliver cream tartar to defendants “as wanted” within a certain time. By another contract plaintiff agreed to deliver to defendants an additional quantity of cream tartar, all to be taken within three months from date, and in three monthly installments. In each sale the price was f. o. b. Nothing was said about insurance in the contracts. Subsequent correspondence between the parties showed that it was understood that defendants were to designate the mode of carriage as well as the carrier. Defendants directed that the goods should be carried by water, and designated the vessel and the voyage. In their first order they directed plaintiff to insure, and this was done. In the second order nothing was said about insurance, and plaintiffs did not insure. In the third order they directed plaintiffs to insure, and this was done. In the fourth order they directed plaintiffs to insure, but plaintiffs neglected it for twenty-five days, and when they attempted to do so, found that they could not, because the vessel had gone ashore: Eeld, that plaintiffs could not recover from defendants