Tilghman C. J.
This is an action for not executing the plaintiff’s order, to have an insurance effected, or rather for executing the order differently from the plaintiff’s direction. The order was to effect insurance from Philadelphia to the island of St. Domingo, and two ports in the said island. The defendants had an insurance made to one port only, and the vessel and cargo were captured on the voyage from the first port where she arrived in safety, to the second. The plaintiff wrote the order at Reedy Island., when he was just on the point of sailing for St. Domingo, so that there was no time for the defendants to return him an answer. There had been an intimacy and dealings in business between the plaintiff and defendants for some time before this, but at the date of the order for insurance there was a balance of account due to the defendants, nor was there any circumstance existing from which the plaintiff had a right to demand of the defendants to have the insurance effected. There is no doubt therefore, but that the defendants might have refused to execute. the order. But instead of refusing, they seemed willing to execute it in part at least, and whether they did not act in such a manner as to make themselves liable for the non-execution of the -whole, was the question submitted to the jury. It was one of those questions, which, although to be solved principally from letters which passed between the parties, was yet so interwoven with the defendants’ actions, as to render it proper for the Court to submit the whole to the jury, with this direction in point of law, that although the defendants were under no obligation to execute the plaintiff’s order, yet if they did undertake it, and excuted it [313] badly, they were answerable for the consequences (a). The jury could be under no embarrassment with regard to the lazo, but the matter of fact was not without difficult)7; and so it. appeared on a former occasion, when a jury, after hearing the evidence and arguments of Counsel, were discharged by consent, because they could not agree. Insurance is so essential to commerce, and it is so necessary for one merchant to rely on another for executing his orders on that "Subject, that the law ought not to be relaxed. It is said to be a hard case, and in one sense it is hard. The defendants receive no value for the damages awarded against them. But that is no reason for setting aside the verdict. Nor do I see how with propriety it can be set aside. If the defendants had refused at once to effect the insurance, there would have been an end of the business. But they intermeddled so much, as to render it doubtful how far they would go. It does not’ appear that if they had refused, there were any other persons who would have taken upon themselves to execute the plaintiff’s order, ahd yet it is possible there might have been; and I do not think myself justified in saying peremptorily, that there would not have been such persons, for the plaintiff had some friends besides the defendants, and after intelligence had been received of the brig’s arrival at the first port, there would have been no great difficulty in procuring an insurance to the second. In fact the defendants were engaged in a negotiation for that purpose, and would have effected it, if they had not been too tardy; but the matter was kept in suspense, until news of the capture arrived. I am sorry for the defendants’ loss, for they have brought it upon themselves by their willingness to oblige the plaintiff. But the plaintiff has his rights', of which the Court cannot in justice deprive him. The cause was submitted to the jury upon a point, on which merchants best understand their own modes of doing business. The verdict ought to stand, unless we cleairly perceive it to be wrong. This would be going-further than I think myself warranted in doing. My opinion therefore is against a new trial.
Yeates J.
It cannot be denied, that the verdict in this case operates with peculiar severity on the late firm oí Seed and [314] Forde. They did not fall within either class of cases, where- ' in a correspondent is generally bound to make insurance for his principal. They had no. funds of the plaintiff in their hands, such was not the usual course of dealing between them, nor had they accepted bills of lading upon a consignment of goods to them. Yet if by the commercial law they have incurred a responsibility under all the circumstances, and the verdict is not contrary to plain evidence, we should not be justified in awarding a new trial.
The law on which the plaintiff relied to support his recovery, has not been questioned by the defendants’ counsel. If a party who makes an engagement to perform a business gratuitously, enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance. Thornbury v. Day, 4 Johns. 96. But it has been contended that this legal proposition is not applicable to the facts in this case.
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Tilghman C. J.
This is an action for not executing the plaintiff’s order, to have an insurance effected, or rather for executing the order differently from the plaintiff’s direction. The order was to effect insurance from Philadelphia to the island of St. Domingo, and two ports in the said island. The defendants had an insurance made to one port only, and the vessel and cargo were captured on the voyage from the first port where she arrived in safety, to the second. The plaintiff wrote the order at Reedy Island., when he was just on the point of sailing for St. Domingo, so that there was no time for the defendants to return him an answer. There had been an intimacy and dealings in business between the plaintiff and defendants for some time before this, but at the date of the order for insurance there was a balance of account due to the defendants, nor was there any circumstance existing from which the plaintiff had a right to demand of the defendants to have the insurance effected. There is no doubt therefore, but that the defendants might have refused to execute. the order. But instead of refusing, they seemed willing to execute it in part at least, and whether they did not act in such a manner as to make themselves liable for the non-execution of the -whole, was the question submitted to the jury. It was one of those questions, which, although to be solved principally from letters which passed between the parties, was yet so interwoven with the defendants’ actions, as to render it proper for the Court to submit the whole to the jury, with this direction in point of law, that although the defendants were under no obligation to execute the plaintiff’s order, yet if they did undertake it, and excuted it [313] badly, they were answerable for the consequences (a). The jury could be under no embarrassment with regard to the lazo, but the matter of fact was not without difficult)7; and so it. appeared on a former occasion, when a jury, after hearing the evidence and arguments of Counsel, were discharged by consent, because they could not agree. Insurance is so essential to commerce, and it is so necessary for one merchant to rely on another for executing his orders on that "Subject, that the law ought not to be relaxed. It is said to be a hard case, and in one sense it is hard. The defendants receive no value for the damages awarded against them. But that is no reason for setting aside the verdict. Nor do I see how with propriety it can be set aside. If the defendants had refused at once to effect the insurance, there would have been an end of the business. But they intermeddled so much, as to render it doubtful how far they would go. It does not’ appear that if they had refused, there were any other persons who would have taken upon themselves to execute the plaintiff’s order, ahd yet it is possible there might have been; and I do not think myself justified in saying peremptorily, that there would not have been such persons, for the plaintiff had some friends besides the defendants, and after intelligence had been received of the brig’s arrival at the first port, there would have been no great difficulty in procuring an insurance to the second. In fact the defendants were engaged in a negotiation for that purpose, and would have effected it, if they had not been too tardy; but the matter was kept in suspense, until news of the capture arrived. I am sorry for the defendants’ loss, for they have brought it upon themselves by their willingness to oblige the plaintiff. But the plaintiff has his rights', of which the Court cannot in justice deprive him. The cause was submitted to the jury upon a point, on which merchants best understand their own modes of doing business. The verdict ought to stand, unless we cleairly perceive it to be wrong. This would be going-further than I think myself warranted in doing. My opinion therefore is against a new trial.
Yeates J.
It cannot be denied, that the verdict in this case operates with peculiar severity on the late firm oí Seed and [314] Forde. They did not fall within either class of cases, where- ' in a correspondent is generally bound to make insurance for his principal. They had no. funds of the plaintiff in their hands, such was not the usual course of dealing between them, nor had they accepted bills of lading upon a consignment of goods to them. Yet if by the commercial law they have incurred a responsibility under all the circumstances, and the verdict is not contrary to plain evidence, we should not be justified in awarding a new trial.
The law on which the plaintiff relied to support his recovery, has not been questioned by the defendants’ counsel. If a party who makes an engagement to perform a business gratuitously, enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance. Thornbury v. Day, 4 Johns. 96. But it has been contended that this legal proposition is not applicable to the facts in this case.
It is certain that the plaintiff wrote to Reed and Forde from Reedy Island, on the 5th of December 1804, directing them to make insurance immediately upon goods on board the Hiram for Hispaniola, valued, at 20,000 dollars, and cover the premium, out only to two ports in Hispaniola; and that this letter came to hand. The defendants shewed great anxiety to carry the order of the plaintiff into effect. They wrote to the general agent and attomey^in fact of the plaintiff, statingto him their want of funds, offered to raise the premium supposed to be at least 3000 dollars, and informing him they must decline insuring, unless they were made safe. Several arrangements were made for this purpose, but they were rendered abortive. By their letter of the 13th of December, they tell the plaintiff that he had forgot to leave a note for the premium payable in three months, and that the Hiram would not return in time to put them in funds, and they mention the conditions on which they would make the insurance. Fiad the defendants adhered to their resolution of not insuring, unless funds were furnished to them for their indemnification, all would have been well. But on the 17th of December they effected a policy, wherein 3500 dollars were subscribed by private underwriters on the g.oods to Cape Francois or Port de Paix in Hispaniola; and on the 24th of the [315] same month, another policy of 8000 dollars in the office of the Union Insurance Company to one port in Hispaniola. These acts did not conform to the orders they had received, which specified that the insurance was to be made on the goods valued at 20,000 dollars, covering the premium, to two ports in Hispaniola, without naming either of them. Upon the 27th of December, Reed and Forde inform French of what they had done, and express their hope of having the remainder done at Netv York and Baltimore at a premium of eleven per cent. In another letter of the 26th of February 1805, they say they shall endeavour to insure 10,000 dollars from the Cape to Gonaives, but probably it could not be done; and again on the 4th of March, they mention that the president of one of the insurance companies had demanded a premium of 17-J on that risk and they had offered 15, which they thought he would have taken, if a report of the capture of the Hiram had not arrived.
Whether the defendants undertook the effecting of this insurance in pursuance of the plaintiff’s orders, was the-the point on which the cause turned; and this was fairly submitted by the Chief Justice to the jury, to be decided by them from the language of the defendants’ letters, and their whole conduct, without any intimation of his opinion. The question of fact and law was so intimately blended, that I do not feel myself authorized to pronounce that the jurors were* mistaken in the inferences which they drew from a lengthy correspondence, and a variety of circumstances disclosed therein. I am of opinion that the rule to shew cause . should be discharged.
BrÁckenridge J. delivered his opinion contra; but a part of it having been mislaid, the reporter is unable to publish it.
Judgment for the plaintiff.