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No. 1066.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 3, art. 3.

No. 1067.

thing; this may be the case where a careless man takes the same care of the deposit as he does of his own property; as where the depositary put the money deposited in a box with his own, in a common tap-room, and it was stolen, he was held liable.(a)

The degree of diligence to be exercised is always in proportion to the value of the deposit, and the ease with which it may be lost. But if the nature of the deposit is concealed from the depositary, he will be liable only for gross negligence.(b)

With regard to the mode of keeping the deposit, it may be inquired whether the depositary can use it? In general, he doubtless has no right to use it, but in certain cases it may be presumed to be the intention of the parties that he should use it. His right to do so, in the absence of any special contract, will depend upon this intention, which may be collected from circumstances.(c)

2. Of the return of the deposit.

1066. In treating of the rights of the depositor, the duties of the depositary as to the return of the deposit, to whom it is to be returned, and the place where it is to be made, were considered, so as not to require any further examination here.

Art. 3.-Of rights of the depositary.

1067. When the depositary has necessarily incurred any expense in the preservation of the deposit, he is entitled to be reimbursed, whether the deposit be a voluntary one, or whether it arise from necessity, as in case of shipwreck, or fire, or from any casual cause, as by finding.(d)

(a) Doorman v. Jenkins, 2 Ad. & Ell. 256; S. C. 4 Nev. & Man. 470. See Tomkins v. Saltmarsh, 14 8. & R. 275.

(b) Jones, Bailm. 38, 39; Story, Bailm. § 79.

(c) Jones, Bailm. 81; Moses v. Conham, Owen, 123. See ante, n. 1046. (d) Nicholson v. Chapman, 2 H. Bl. 254.

No. 1068.

Book 2, part 2, tit. 5, chap. 2, sec. 2, § 1.

SECTION 2.—OF MANDATES.(α)

No. 1069.

1068. The second kind of bailment, which is for the benefit of the bailor, is the contract of mandate. A mandate is a contract by which one of the parties entrusts the other with the transaction of one or more affairs, to manage them in his place and at his risk; while the other engages to perform the trust gratuitously, and to be accountable to the former for the performance.(b)

The contracting party who confides the management of the affair to the other, is called the mandator, and he who accepts the charge, mandatary.

This section will be considered under six heads, which will relate to, 1, the subject matter of the contract; 2, the gratuity of the contract; 3, the consent of the parties and form of the contract; 4, the obligations and rights of the mandatary; 5, the obligations of the mandator; 6, the dissolution of the contract of mandate.

§ 1.-What may be the subject matter of the contract.

1069. The mandate must be in relation to some lawful and definite act to be done in futuro; it must be about some business to be done, negotium gerendum; not a thing already done, negotium gestum, for this cannot be the object of the contract. The mandatary must be able to perform the mandate, for otherwise it would be nugatory, as if you engaged a dumb man to deliver a verbal message, or to teach your son to read. (c) The business to be done must not concern the mandatary, as, if I request you to do a certain thing, in which you alone have an interest, it is not a mandate, but merely advice I give you. But it is not requisite that the business which I request you to perform should concern

(a) See Story, Bailm. § 137; Poth. Pand. lib. 17, t. 1; Wood's Civ. Law, B. 3, c. 5; Hal. An. Civ. Law, 70; Bowy. Mod. Civ. Law, c. 39, p. 224; Poth. Mandat; Inst. 3, 27, in pr.; 1 Brown's Civ. Law, 382.

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No. 1070.

Book 2, part 2, tit. 5, chap. 2, sec. 2, § 2, 3.

No. 1071.

me alone, in whole or in part, provided I have an interest in its performance.

In the common law the mandate is confined to personal property; contracts relating to real estate of the same nature, would not be classed among mandates, but would be treated merely as special undertakings. (a)

§ 2. The contract must be gratuitous.

1070. Like the contract of deposit, a mandate must be gratuitous, for if any consideration is paid, it will change its nature, and make it a hiring: mandatum nisi gratuitum nullum est.(b) The employment of counsel in England, and perhaps in some of the United States, is considered as a mandate, and he cannot, therefore, recover fees; whatever is given is considered as a voluntary gift, an honorarium. But if a client who should employ an advocate, and at the time of giving such mandate, he should promise to give him a copy of the Pandects, which he observed he wanted in his library, this would not be considered a payment, but a token of gratitude; for his talents in defending his cause are not appreciable. (c) Such at least is the doctrine of the civil law. (d) But when an attorney who is entitled to compensation, performs such business confided to him, the contract is that of hiring.(e)

§ 3. Of the consent of the parties, and form of the contract. 1071. It is of the essence of the contract, that the mandator should intend to require the mandatary to take charge of the mandate, and to agree that it should be at his risk, and that he would indemnify the mandatary; the latter, on his part, should agree to attend to the business. A mandate differs from a mere recommendation. Fraud, imposition or mistake, would

(a) Story, Bailm. § 141.

(b) Dig. 17, 1, 4; Inst. 3, 27.
(c) Pothier, Mandat, n. 23.
(d) Dig. 50, 13, 12.

(e) Vide ante, n. 1005.

No. 1072.

Book 2, part 2, tit. 5, chap. 2, sec. 2, § 4.

No. 1073.

have the effect of destroying an apparent consent, and where there was no consent, express or implied, there would be no contract.(a)

1072. No particular form is requisite in making this contract, in order to give it validity. It may be verbal or in writing, express or implied, under seal or otherwise. The contract may be varied at pleasure, it may be absolute or conditional, general or special, temporary or permanent.(b)

§4. Of the obligations and rights of the mandatary.

1073. As the mandatary has no special property in the mandate, his duties toward the mandator, as to the care he is to take of the mandate, are similar to those of a depositary, he will be liable only for gross negligence.(c) But a But a mandatary who is known to possess certain skill, and agrees, either expressly or by implication, to exert it in the particular case, is required to exercise competent skill. (d) He is not

bound for non-feasance, because he is not bound to perform a work without consideration, but if he once undertake it he is obliged to perform it as the law requires.(e)

After the work has been performed, the mandatary is bound to return the property with all its increase. Upon principles of justice, the mandatary is bound to render an account of the trust reposed in him, and to show how it has been performed. In this account the mandatary is entitled to a credit for all necessary expenses and charges, to which he has been subjected by the trust.

(a) Pothier, Mandat, n. 18, 19, 20; Lethbridge v. Phillips, 2 Stark. 544. (b) Wood's Civ. Law, 242; Bowy. Mod. Civ. Law, 226; 1 Domat, B. 1, t. 15, § 1, 6, 7, 8; Poth. Mandat, n. 34, 35, 36.

(c) Coggs v. Barnard, Ld. Raym. 909; Tompkins v. Saltmarsh, 14 S. & R. 275; Tracy v. Wood, 3 Mason, 132; Stanton v. Bell, 2 Hawks, 145; Sodowsky v. McFarland, 3 Dana, 205; Bland v. Warmack, 2 Murph. 373; Beardslee v. Richardson, 1 Wend.; Whitney v. Lee, 8 Metc. 91.

(d) Shells v. Blackburne, 1 H. Bl. 158.

(e) Inst. 3, 27, 11; Thorne v. Deas, 4 John. 84; Magee v. Bast, 6 J. J. Marsh. 455; Stephens v. White, 2 Wash. 203.

No. 1074.

Book 2, part 2, tit. 5, chap. 2, sec. 2, 5, 6.

§ 5. Of the obligations of the mandator.

No. 1076.

1074. Although the mandate is to be without reward, yet, upon the plainest principles of justice, the mandator must be liable to the mandatary in certain cases, though perhaps no authorities can be found to support them, except what flow from sound reason and equity.

1. When the mandatary must incur expenses, it must be presumed, in the absence of any agreement, that the mandator will reimburse the mandatary who expended his money for him.

2. When the mandatary has been obliged to enter into collateral contracts in order to accomplish the principal, the mandator will, on the principles of justice, and the presumed intention of the parties, be considered to have agreed to indemnify him.

§ 6. Of the dissolution of the contract of mandate.

1075. It has already been observed, that when the mandatary refuses to accept of the mandate, he cannot be sued for non-feasance. In that case in truth no contract was ever made, because there was no consent of one of the parties. But in such case the property bailed is to be restored to the mandator. And the mandatary, or person to whom goods may have been sent, in order to make him such, is bound to act with some care in protecting the property from injury, until it is returned, and not with gross negligence.

1076. After it has been formed, the contract may be dissolved in various ways.

1. By the death of the mandatary, where the mandate remains wholly unexecuted. If it be in part executed, there may be in some cases a personal obligation on the part of his representatives to complete it. (a) When there are several mandataries, and the trust requires

(a) Poth. Mandat, n. 101.

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