
    Jacob G. Sanches and Isay Abrahams versus Rufus Davenport and Richard D. Tucker.
    Where the owner of a vessel m a foreign port directs his correspondent here to procure insurance upon such vessel, and the agent is not able to procure it in his own town, nor in the towns in the vicinity, and he extends his endeavors to a more distant place, limiting the premium to a rate at which it could not be obtained, the agent was held not liable to the owner for not having procured the insurance.
    This was a special action of the case against the defendants, merchants in Boston, for not having caused insurance to be effected on the sloop Rambler and cargo, belonging to the plaintiffs, merchants at Surinam.
    
    The action was tried on the general issue, at the last November term in this county, before Parker, J., from whose report it appears that the defendants are general commission merchants, and have before transacted mercantile business for the plaintiffs. The directions to procure the insurance were contained in a letter from the plaintiffs to the defendants, dated at Surinam, January 14th, 1801, in which they say that the sloop will sail from that place on the 17th of that month, and in case she should not arrive at Boston in 35 or 40 days from that day, they request the defendants to have .the necessary insurance effected to the amount of 56,600 guilders, according to the bill of lading enclosed. This letter was received by the defendants on the 5th of March, 1801, when the vessel had been out 48 days, and so was out of time.
    On the day on which the said letter was received by them, the defendants applied at the several insurance offices in Boston, public and private, but could not obtain insurance; and on the same day they wrote to their correspondents in Salem, Newburyport, Portsmouth, and Providence, *and received answers [ * 259 ] in a short time from each of those places, that the insurance could not be obtained.
    They also wrote to their correspondents at New York, requesting them to get insurance done on 7000 dollars, and expressing a hope that the premium will not exceed 8 or 9 per cent., but would rather give 2 or 3 per cent, more than not have it done. On the 17th of March, they again wrote their correspondents at New York, and acknowledge the receipt of their letter of the 11th instant, and request them to get the insurance done on the Rambler’s cargo at the premium they mention, say 20 per cent.; and in a postscript to the same letter they request them to increase the premium above 20 per cent., according as they should think circumstances would justify, rather than not get the insurance done ; and if at 20 per cent., to get a few thousand dollars done more than the sum first requested. On the 14th of April following, they write the same correspondents, in which, after acknowledging the receipt of their letters of the 29th of March and 7th of April, they express satisfaction that they had succeeded in effecting insurance on the Rambler, and add that they did not think the risk so great when they first wrote.
    It was contended, on the trial, by the counsel for the plaintiffs, that although the defendants might not have been under obligations to extend their endeavors to New York, yet, as they had in fact done it, they were liable for any negligence, or want of sufficient caution in obtaining insurance there ; and it was further contended, that by limiting the premium according to the tenor of their letter to their correspondents in that city, they had become liable for the amount of the property, which they ought to have procured to be insured.
    Part of the sum requested to be insured at New York was insured there at a premium of 33¿~ per cent., the proceeds of which have been paid over to the plaintiffs.
    The jury were instructed by the judge, that if, from the evidence, they were satisfied that the defendants had [ * 260 ] * acted with diligence, skill, and fidelity, in endeavoring to effect insurance in Boston and the commercial towns near to it, as it was doubtful whether they were under any obligations to extend their attempts to New York, they might find a verdict for the defendants, although it should appear that the directions to their correspondents there were restrictive in respect to premium ; provided the jury were satisfied that the defendants acted bona fide, and with a view to the interest of their employers.
    The jury returned a verdict for the defendants ; and the plaintiffs moved for a new trial, for the misdirection of the judge in matter of law.
    The action stood over to this term for argument; and now
    
      Dexter, for the plaintiffs,
    contended that although perhaps the defendants were under no obligation to send to New Y~ork for the effecting this insurance, yet, having undertaken to procure it there, they were bound by law to obtain it there if possible, and had no right so to limit the premium as to prevent the insurance; and they have thereby subjected themselves to make good the loss the plaintiffs have sustained.
    
      Amory, for the defendants,
    insisted that the instructions to make insurance, which an agent is bound by law to obey, relate only to ordinary cases, not to desperate risks. The defendants in this case, having no funds of the plaintiffs’ in their hands, might still be willing to advance the amount of a moderate premium, at the same time that they would not think it discreet, on the credit of their employers, to advance the amount of an extravagant one.
    But the agent must have a right to limit the premium within some bounds; and if he acts with discretion and integrity, he cannot be chargeable. If he gives an extravagant premium, he makes himself liable, on the other hand, to his employers, for his indiscretion in this respect.
    It was a mere voluntary act in the defendants, to which they were not bound by their duty, to send to so great a distance as New York; and if so, they never can be liable * for any failure of their intentions, even if it were [*261] apparent that they had been wanting in discretion.
    They attempted to serve the plaintiffs beyond what could have been required of them ; it is monstrous to say that for a failure in such an attempt they are liable for damages to the plaintiffs.
    The opinion of the Court (except the chief justice, who did not sit in the cause) was delivered by
   Sedgwick, J.

When the defendants received the plaintiffs’ orders to insure, from whatever obligation they were bound to make the insurance, having undertaken it, they were bound to act faithfully, prudently, and skilfully, and to make every exertion which such a confidence reposed in them required. They were bound to conduct with the greatest fidelity, punctuality, and circumspection.

The vessel was, at the time the orders were received, out ot time. On that day, the defendants went to the several offices, public and prhate, in Boston; and not being able to obtain insurance at any of them, at any rate, on the same day they wrote to Providence, Newburyport, Portsmouth, and Salem. At neither of these places could insurance be obtained. No fault is found with the orders which were given. So far the conduct of the defendants was prompt; they extended their efforts, at least, as far as their duty required.

When this was done, had nothing more been done, it is agreed that the plaintiffs would have had no claim against the defendants, for the loss which they have sustained.

Every thing done by the defendants, after having performed all that their relation to the plaintiffs required, was merely voluntary They did make an application to their correspondents in New York, to get the insurance done there, in which they expressed a hope that it might be effected at a moderate premium. There was no possible motive on the part of the defendants to intend to injure the plaintiffs. In fact, they did not injure them; but, on the contrary, through their means an insurance was obtained, [ # 262 ] * whereby the loss, which the plaintiffs would otherwise have sustained, has been lessened. The intention of the defendants was, not to injure, but to benefit the plaintiffs.

Now, it is believed to be impossible to find an instance where a man, in a voluntary effort (not required by any principle of law) to render a benefit to another, has been holden to make good any loss, which may have happened, merely because his generous efforts did not succeed. The utmost for which he can be responsible is a • positive loss, which his efforts may have occasioned; and as there is none such in this case, we are all of opinion that

Judgment must be rendered on the verdict.  