4 Johns. (N.Y.) 84 (1809)
The Plaintiffs' action alleged that defendant had agreed to secure insurance for the voyage but had failed to do so.
The court had reserved its opinion on the motion of the defendant.
Before the ship set sail, the defendant advised one plaintiff that he would obtain insurance for the vessel's trip. After the ship had sailed, the defendant advised the other plaintiff that he had not yet obtained insurance, but would do so. When the ship was wrecked, both parties lost everything on board the ship and, as a result, the plaintiffs filed suit to recover the cost of their losses.
- The court reversed its judgment in this case because there was no consideration for defendant's promise to insure the ship, and, as a result, there was no enforceable contract between the parties.
- The court examined common law and determined that the rule had always been and was still that when a party makes an agreement to perform gratuitously and that performance is defective, an action would lie for misfeasance, however if the party that made the gratuitous promise had failed to perform at all, there would be no action for the party's nonfeasance.
- The court also found that the fact that this was a commercial venture made no difference.
- Marine cases holding that a factor was responsible for obtaining insurance for a vessel's voyage were not applicable because the defendant was not a factor -- he had a direct ownership interest in the vessel's contents.
The court reversed its entry of judgment for the plaintiff in his action to recover damages which were caused by defendant's failure to insure a ship that contained the parties' property and entered judgment for defendant.
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