Coggs v. Bernard

The facts of the case from Justice HOLT's judgment...: "The case is shortly this. This defendant undertakes to remove goods from one cellar to another and there lay them down safely, and he managed them so negligently that for want of care in him some of the goods were spoiled. Upon Not Guilty pleaded, there has been a verdict for the plaintiff... There has been a motion in arrest of judgment on the ground that the declaration is insufficient because the defendant is neither laid to be a common porter nor that he is to have any reward for his labour. So that the defendant is not chargeable by his trade, and a private person cannot be charged in an action without a reward..."

Justice GOULD:
I think [the verdict for the plaintiff is] a good declaration. The objection that has been made is because there is no consideration laid. But I think it is good either way, and that any man who undertakes to carry goods is liable to an action, be he a common carrier, or whatever he is, if through his neglect they are lost or come to any damage, and if a praemium be laid to be given, then it is without question so. The reason of the action is the particular trust reposed in the defendant, to which he has concurred by his assumption and in the executing which he has miscarried by his neglect. But if a man undertakes to build a house, without anything to be had for his pains, an action will not lie for non-performance, because it is nudum pactum. So if goods are deposited with a friend, and are stolen from him, no action will lie. But there will be a difference in that case upon the evidence how the matter appears. If they were stolen by reason of a gross neglect in the bailee, the trust will not save him from an action, otherwise if there be no gross neglect. The same difference is where he comes to goods by finding. But if a man takes upon himself expressly to do such a fact safely and securely, if the thing comes to any damage by his miscarriage, an action will lie against him. If it be only a general bailment, the bailee will not be chargeable without a gross neglect. ...

Chief Justice HOLT:
...The reasons [for finding for the plaintiff] are, first, because in the case, a neglect is a deceit to the bailor. For when he instructs the bailee upon his undertaking to be careful, he has put a fraud upon the plaintiff by being negligent, his pretence of care being the persuasion that induced the plaintiff to trust him. A breach of a trust undertaken voluntarily will be a good ground for an action... . ...For here is his own act, namely, his agreement and promise, and afterwards broken on his side that shall give a sufficient cause of action. Secondly, it is objected that there is no consideration to ground this promise upon, and, therefore, the undertaking is but nudum pactum. To this I answer that the owner's trusting him with the goods is a sufficient consideration to oblige him to a careful management. Indeed, if the agreement had been executory, to carry these brandies from the one place to the other on such a day, the defendant would not have been bound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but in such a case as this it signifies an actual entry upon the thing, and taking the trust upon himself. If a man will do that and miscarries in the performance of his trust, an action will lie against him for that, although nobody could have compelled him to do the thing...