## Facts

- Thorne and Deas jointly owned a vessel engaged in coastal trade.
- Before a voyage from New York to North Carolina, Deas promised Thorne he would obtain insurance on the vessel.
- Deas received no payment or other consideration for the promise.
- Deas never procured the insurance.
- The vessel was later wrecked near the Carolina coast.
- Thorne sued Deas for damages, framing the claim as negligence based on Deas’s failure to act (nonfeasance), rather than negligent performance (misfeasance).
- A jury returned a verdict for Thorne, and Deas sought appellate review.

## Issues

1. Whether a person who makes a gratuitous promise to perform a service for another is liable in tort for nonfeasance when the promised act is never undertaken.
2. Whether a plaintiff may recast an unenforceable gratuitous promise (lacking consideration) as a negligence claim to recover for resulting loss.

## Decision

- The court reversed the judgment for Thorne.
- A gratuitous promise, without consideration, does not create tort liability for a failure to perform when the promisor never begins performance.
- Liability may arise where the promisor undertakes to act and performs negligently (misfeasance), but not for mere inaction (nonfeasance).

## Legal Principles

- A gratuitous promise, standing alone, imposes no legal duty enforceable in tort for non-performance.
- The law distinguishes:
  - Nonfeasance (failure to act at all), which is not actionable in tort for a purely voluntary undertaking; and
  - Misfeasance (negligent performance after beginning the undertaking), which may be actionable.
- Tort doctrine cannot be used to enforce a promise that would be unenforceable in contract for lack of consideration.
- A voluntary undertaking may create liability only once the actor enters upon the task and then mishandles it.

## Conclusion

The court held that Deas’s unpaid promise to procure insurance did not create a tort duty to perform, so his failure to obtain insurance was nonfeasance for which he was not liable; only negligent performance after beginning the undertaking could support liability.


Thorne v. Deas, 4 Johns. 84 (N.Y. Sup. Ct. 1809)