Herzig v. Herzig

Plaintiff alleges that at defendant’s request she1 delivered to him a certain nonnegotiable promissory note for collection, and in consideration thereof he undertook to use due diligence in collecting, but that he made no effort to do so, and that the note is no longer collectible. She does not allege that defendant was anything more than a gratuitous bailee or mandatary.

Defendant relies on the principle of Thorne v. Deas, 4 Johns. 84, that a gratuitous bailee is not liable for nonfeasance, but only for misfeasance. This rule, however, does not apply when the thing which is the subject of the bailment has been actually delivered to and accepted by the mandatary. Story on Bailments, §■§ 171, 171a-171c; Holt, C. J., in Coggs v. Bernard, Ld. Raym. 909; Smith’s Lead. Cas. 199. Cases in other states to this effect are collected in a note to 5 Cyc. 180. See, also, note to 2 Parsons on Contracts, 99. This makes it unnecessary to consider whether the complaint states also a cause of action for conversion.

Demurrer overruled, with costs, with leave to answer on payment of costs.