Page:Harvard Law Review Volume 5.djvu/247

GRATUITOUS UNDERTAKINGS. 231 templated, and did an act not authorized by the terms of his trust." 1 These various rules seem to neutralize the effect of Lord Holt's dictum. Though the courts still say that a gratuitous undertaker is liable only for gross neglect, they really, by so doing, only postpone for a moment a decision as to the duty which was un- dertaken. For when called upon to interpret the term " gross neglect," they hold the gratuitous undertaker to be guilty of gross neglect if he falls below the standard of care and exertion required by his undertaking; thus finally applying the same test which is adopted in the case of undertakings for hire. The Supreme Court of Tennessee correctly states the present condition of the law as follows : " This general principle that a mandatory is only liable for gross neglect implies strict fidelity on his part, and the exercise of such care and prudence as, with reference to the particular subject of the bailment and the circumstances of the particular case, may be requisite for the performance of his undertaking." 2 While thus showing that the degree of care required of a gratu- itous undertaker does not differ from that required of an undertaker for hire, I have at the same time considered certain rules which are in use for determining the degree of care required in certain cases. This branch of the subject might be carried to great length, but enough has perhaps been said to indicate the method that might be adopted, and, I hope, to show the advantages of that method. In brief, the rule applicable in all cases of agency, bailment, or other undertaking, whether gratuitous or not, is this : The under- taker is held to such a degree of care and exertion in the business as in fact he undertook to bestow. Joseph H. Beale, Jr. 1 Ames, J., in Jenkins v. Bacon, 11 1 Mass. 373, 378. See to the same effect Colyar v. Taylor, 1 Cold. 372. 2 McKinney, J., in Colyar v. Taylor, 1 Cold. 372, 379.