fined in the formal contract, but they have been developed by a course of judicial decisions, as resulting from promises implied in fact or in law. SECTION 2.-BAILMENTS A bailment is a transaction involving the transfer of possession of personal property by one party, called the bailor, to another party, called the bailee. Bailments are usually classified according to the primary object for which the bailment was created. Accordingly, we may have (1) a bailment for the benefit of the bailor; (2) a bailment for the benefit of the bailee; (3) a bailment for the benefit of both parties. One object of such a classification of bailments is to make possible a distinction between the degree of care which a bailee in each type of case owes with respect to the care of the property. It is obvious that, if A. borrows B.'s umbrella, A. should exercise a higher degree of care than he should where B. obtains A.'s permission to leave his umbrella in A.'s store. The cases following point out some of the distinctive aspects of a bailment, and discuss the extent of the duty of the bailee with respect to the care of the property. BRETZ V. DIEHLE et al. (Supreme Court of Pennsylvania, 1888. 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706). CLARK, J. The defendants in this case are judgment creditors of William D. Newman, a miller operating a steam flouring mill in the town of Bedford. Having issued executions, they levied on some 80 or 90 barrels of flour and some bran, found on the floor of Newman's mill. The plaintiffs claimed the property levied upon, alleging that it was the product of grain by them delivered to and held by Newman as their bailee. * * * The plaintiffs, who are farmers residing in the vicinity of Bedford, brought their grain to this mill. No special contract or arrangement was made with the miller by any of the plaintiffs when they delivered their wheat; but in accordance with the practice of the mill in all cases, except where wheat was at once paid for, a receipt or memorandum was given in the following form: "Crystal Mills, Bedford, Pa., September 12, 1884. Price. Received from D. W. Lea Am't. 455.14 The mill was not arranged to keep the several lots of grain in separate parcels. It was so constructed that all the grain delivered into it was hoisted to the second floor, emptied into a sink on the first floor, and from thence carried by elevators into a bin on the third floor, where, at times, there was a large accumulated mass of wheat. Newman also purchased wheat in considerable quantities, from time. to time, which was delivered into the mill, and disposed of as the other wheat. This promiscuous commingling of the grain into a common mass was in accordance with the known usage of the mill, which was supplied for grinding from the mass of the wheat, without any discrimination as to the several lots or parcels in which it was received. The miller was, of course, under no obligation to restore to the plaintiffs the specific or identical wheat which he received, nor the product of it in flour; indeed, this, owing to the manner in which the business was conducted, was practically impossible. The fundamental distinction between a bailment and a sale is that in the former the subject of the contract, although in an altered form, is to be restored to the owner, while in the latter there is no obligation to return the specific article; the party receiving it is at liberty to return some other thing of equal value in place of it. In the one case, the title is not changed; in the other, it is the parties standing in the relation of debtor and creditor. Thus, in Norton v. Woodruff, 2 N. Y. 153, a miller agreed to take certain wheat and to give one barrel of superfine flour for every four 36-60 bushels thereof; the flour to be delivered at a fixed time, or as much sooner as he could make it. As the miller's contract was satisfied by a delivery of flour from any wheat, the transaction was held to be a sale. But in Mallory v. Willis, 4 N. Y. 76, wheat was delivered under a contract "to be manufactured into flour," and one barrel of the flour was to be delivered for every four 15-60 bushels of wheat. This transaction was by the same court held to be a bailment. If a party, having charge of the property of others, so confounded it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produces it. Where, however, the owner's consent to have their wheat mixed in a common mass, each remains the owner of his share in the common stock. If the wheat is delivered in pursuance of a contract of bailment, the mere fact that it is mixed with a mass of like quality, with the knowledge of the depositor or bailor, does not convert that into a sale which was originally a bailment, and the bailee of the whole mass, of course, has no greater control of the mass than if the share of each were kept separate. If the commingled mass has been delivered on simple storage, each is entitled on demand to receive his share; if for conversion into flour, to his proper proportion of the product. * * * It makes no difference that the bailee had in like manner contributed to the mass of his own wheat, for, although the absolute owner of his own share, he still stands as a bailee to the others, and he cannot abstract more than that share from the common stock, without a breach of the bailment, which will subject him, not only to a civil suit, but also to a criminal prosecution. But where * * * the understanding of the parties was that the person receiving the grain might take from it, or from the flour, at his pleasure, and appropriate the same to his own use, on the condition of his procuring other wheat to supply its place, the dominion over the property passes to the depository, and the transaction is a sale, and not a bailment. In Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311, the distinction is thus stated: "If the dealer has the right at his pleasure, either to ship and sell the same, on his own account and pay the market price on demand, or retain and re-deliver the wheat, or other wheat, in the place of it, the transaction is a sale. It is only when the bailor retains the right from the beginning to elect whether he will demand the re-delivery of his property, or other of like quality and grade, that the contract will be considered one of bailment. If he surrenders to the other the right of election, it will be considered a sale, with an option on the part of the purchaser to pay either in money or property as stipulated. The distinction is, can the depositor, by his contract, compel a delivery of wheat, whether the dealer is willing or not? If he can, the transaction is a bailment. If the dealer has the option to pay for it in money or other wheat, it is a sale." This distinction is drawn, of course, with reference to cases where grain is deposited in a mass, as in grain elevators, etc. There are cases in which the doctrine of bailment has been carried much beyond the rule recognized in the cases we have cited. * * But in the case at bar we are not called upon to say what would be the effect upon the transaction if Newman had authority, in the regular course of dealing, to ship or sell the wheat of his customers on his own account. Undoubtedly he had a right to sell of the grain or flour to the extent of his own share, that is to say, what he contributed to the common stock and the tolls to which he was entitled. But the jury has found that he had no authority whatever to sell or to abstract from the common stock beyond the amount to which he was himself entitled. In the general charge, and also in the answers to the points submitted, the learned court instructed the jurors, in the clearest manner, that if they should find from the evidence that Newman, by the nature of his dealings with the several plaintiffs, had acquired such dominion over their wheat as authorized him, at his pleasure, not only to grind it into flour, but also to sell the same for his own use, the transaction must necessarily be treated as a sale; and that, in that event, the plaintiff could not recover. This instruction was repeated with marked emphasis several times during the progress of the charge, and it seems quite impossible that the jury could have labored under any misapprehension as to the nature of the inquiry they were to make. The verdict of the jury was for the plaintiff, and we must assume the facts which, it is plain, the jury in arriving at such a verdict must have found, viz., that Newman had no authority to sell the grain delivered into his mill under the arrangement with the plaintiffs; that is to say, their share of the common stock, nor the flour which was the product thereof. It was the plain duty of Newman, however, to see to it that at all times the mill contained wheat or flour sufficient in amount to answer all demands under the bailment. Failing in this, he was derelict in duty, and liable under the law for the appropriation and conversion into his own use of property which did not belong to him. * * * The learned court defined a bailment and a sale, marking the distinguishing features of each, and as the nature of the transaction depended, not wholly upon the written receipt, but in part on verbal evidence as to the method of conducting the business, the question. was undoubtedly one proper to be submitted to the jury. The court instructed the jury, that if certain facts existed the transaction was a sale, otherwise it was but a bailment. And the question was proper for the jury whether or not, under the instructions of the court, according to the facts as the jury might find them, the transaction was a bailment or a sale. On a careful review of the whole case, we find no error, and the judgment is affirmed. PRESTON v. PRATHER. (Supreme Court of the United States, 1891. 137 U. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 788.) FIELD, J. By the defendants it was contended below in substance, and the contention is renewed here, that the bonds being placed with them on special deposit for safe-keeping, without any reward, promised or implied, they were gratuitous bailees, and were not chargeable for the loss of the bonds, unless the same resulted from their gross negligence, and they deny that any such negligence is imputable to them. On the other hand, the plaintiffs contended below, and repeat their contention here, that, assuming that the defendants were in fact simply gratuitous bailees when the bonds were deposited with them, they still neglected to keep them with the care which such bailees are bound to give for the protection of property placed in their custody, and further, that subsequently the character of the bailment was changed to one for the mutual benefit of the parties. * * Undoubtedly, if the bonds were received by the defendants for safekeeping, without compensation to them in any form, but exclusively for the benefit of the plaintiffs, the only obligation resting upon them was to exercise over the bonds such reasonable care as men of common prudence would usually bestow for the protection of their own property of a similar character. No one taking upon himself a duty for another without consideration is bound, either in law or morals, to do more than a man of that character would do generally for himself under like conditions. The exercise of reasonable care is in all such cases the dictate of good faith. An utter disregard of the property of the bailor would be an act of bad faith to him. But what will constitute such reasonable care will vary with the nature, value and situation of the property, the general protection afforded by the police of the community against violence and crime, and the bearing of surrounding circumstances upon its security. The care usually and generally deemed necessary in the community for the security of similar property, under like conditions, would be required of the bailee in such cases, but nothing more. The general doctrine, as stated by textwriters and in judicial decisions, is that gratuitous bailees of another's property are not responsible for its loss unless guilty of gross negligence in its keeping. But gross negligence in such cases is nothing more than a failure to bestow the care which the property in its situation demands; the omission of the reasonable care required is the negligence which creates the liability; and whether this existed is a question of fact for the jury to determine, or by the court where a jury is waived. * The doctrine of exemption from liability in such cases was at one time carried so far as to shield the bailees from the fraudulent acts of their own employés and officers, though their employment embraced a supervision of the property; such acts not being deemed within the scope of their employment. Thus in Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168, the bank was, in such a case, exonerated from liability for the property intrusted to it, which had been fraudulently appropriated by its cashier, the Supreme Judicial Court of Massachusetts holding that he had acted without the scope of his authority, and, therefore, the bank was not liable for his acts any more than it would have been for the acts of a mere stranger. * * * As stated above, the reasonable care which persons should take of property intrusted to them for safe-keeping without reward will necessarily vary with its nature, value and situation, and the bearing of surrounding circumstances upon its security. The business of the bailee will necessarily have some effect upon the nature of the care required of him, as, for example, in the case of bankers and banking institutions, having special arrangements, by vaults and other guards, to protect property in their custody. Persons therefore depositing valuable articles with them, expect that such measures will be taken as will ordinarily secure the property from burglars outside and from thieves within, and that whenever ground for suspicion arises an examination will be made by them to see that it has not been abstracted or tampered with; and also that they will employ fit men, both in ability and integrity, for the discharge of their duties, and remove those employed whenever found wanting in either of these particulars. An omission of such measures would in most cases be deemed culpable negligence, so gross as to amount to a breach of good faith, and constitute a fraud upon the depositor. It was this view of the duty of the defendants in this case, who were engaged in business as bankers, and the evidence of their neglect, upon being notified of the speculations in stocks of their assistant cashier, who stole the bonds, to make the necessary examination respecting the securities deposited with them, or to remove the speculating cashier, which led the court to its conclusion that they were guilty of gross negligence. It was shown that about a year before the assistant cashier absconded the defendant Kean, who was the chief officer of the banking institution, was informed that there was some one in the bank speculating on the Board of Trade at Chicago. Thereupon Kean made a quiet investigation, and the facts discovered by him. pointed to Ker, whom he accused of speculating. Ker replied that he had made a few transactions, but was doing nothing then and did not propose to do anything more, and that he was then about a thousand dollars ahead, all told. It was not known that Ker had any other property besides his salary. His position as assistant cashier gave him access to the funds as well as the securities of the bank, and he was afterwards kept in his position without any effort being made on the part of the defendants to verify the truth of his statement, or whether he had attempted to appropriate to his own use the property of others. Again, about two months before Ker absconded, one of the defendants, residing at Detroit, received an anonymous communication, stating that some one connected with the bank in Chicago was speculating on the Board of Trade. He thereupon wrote to the bank, calling attention to the reported speculation of some of its employees, and suggesting inquiry and a careful examination of its securities of all kinds. On receipt of this communication Kean told Ker what he had heard, and asked if he had again been speculating on the Board of Trade. Ker replied that he had made some deals for friends in Canada, but the transactions were ended. The defendants then entered upon an examination of their books and securities, but made no effort to ascertain whether the special deposits had been disturbed. Upon this subject the court below, in giving its decision (Prather v. Kean, 29 Fed. 498), after observing that the defendants knew that Ker had |