A bailment without reward for the care of the bailor's goods. 1038 When the warehouseman is justified in delivering, and his liability for mis Warehouseman is liable for the non-existence or misdescription of goods.. 1055 Innkeepers' obligations in regard to guests' property. 1068 Limitations of innkeepers' liability in regard to guests' property. 1069 Innkeepers' obligations in regard to guests' comfort and safety.. 1070 § 1032. Definition of bailment. A bailment may be defined as the rightful possession of goods by one who is not the owner. Rarely the situation may arise (as by finding) without the volition of the owner. In such a case the law of contracts does not govern the rights of the parties; but in most bailments the goods have either been delivered by the bailor to the bailee, or have been retained by the bailee (as where a seller continues in possession) under some agreement expressed or implied in fact. Even in such cases the mutual rights of the parties are often, if not usually, so inadequately fixed by their agreement, that rules of law not based on the agreement though not inconsistent with it must be called upon to supply the deficiency.1 In the main, however, the mutual rights of the bailee and bailor may be said to be governed by agreement. But the rights of either bailor or bailee in respect to the bailed property against third persons depend upon the law of property, and are not within the scope of this treatise. Though possession of real property may be delivered by the owner to another, the term bailment is not applied to such a transaction. The law of real property has preserved its separate rules. 1033. Kinds of bailment. Lord Holt, borrowing his terminology somewhat from the Roman Law, divided bailments into six classes,2 1. Depositum, a gratuitous bailment of goods to be kept for the bailor. 2. Commodatum, a bailment of goods to be used by the bailee without charge. 3. Locatio rei, a bailment for hire paid to the bailor of goods to be used by the bailee. 4. Vadium, a bailment to secure a debt; a pledge. 5. Locatio operis faciendi, a bailment for reward paid to the bailee where goods are to be kept, or carried, or have something done to them by him. 1 For a discussion of how far such rules may be considered, part of the contract, see supra, §§ 22a, 615. 2 Coggs v. Bernard, 2 Lord Raym. 909. 6. Mandatum, a bailment for the gratuitous carriage of the goods or service in regard to them. The importance of consideration in the common law makes a more practical division that of Schouler: 3 1. Gratuitous bailments for the bailor's sole benefit. 2. Gratuitous bailments for the bailee's sole benefit. 3. Bailments for mutual benefit. 4. Bailments to which the law, for reasons of policy, attaches exceptional obligations. § 1034. Mutual rights and duties of bailor and bailee. Until the acquisition of possession of the property by the bailee though there may be a contract for a bailment, there is no actual bailment. After the bailee has acquired possession, the bailor's possible duties are not likely to go beyond an obligation to pay the bailee for his services and expenses in regard to the goods, and to take the goods back in due season and terminate the bailment, and in the case of a bailment for hire paid by the bailee, an implied warranty of the character of the goods. The bailee's duties, however, may be more varied and though the extent of his obligation may be enlarged or diminished by agreement, in the absence of such agreement the law fixes the standard of care which he must exercise in the performance of the functions which he has undertaken. These different standards may be included in consideration of the subject, for though they generally fall appropriately rather in the law of torts than in that of contracts, the rights and obligations of the parties under a contract of bailment may include by implication rights and duties imposed upon the bailee by law irrespective of agreement, as well as those voluntarily undertaken. 4 § 1035. The bailee's obligation to redeliver. It is usual to add as part of the definition of bailment that the bailee must be under a duty to redeliver the goods, but all that is essential is contained in the definition in the previous section, for one who has the right to permanent possession is necessarily the owner; and since one entitled to Bailments and Carriers (1905), 4. See supra, § 138. temporary possession only is under a duty, either present or future, to surrender the goods or their proceeds on demand or to seek the owner and deliver them to him, he is a bailee. Sir William Jones, in his work on Bailments," says: "It may also be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in value. In the first case it is a regular bailment; in the second it becomes a debt." This statement, in the same or slightly altered form, has been often quoted as expressing the correct doctrine. A little consideration will show that the statement cannot be literally accepted. Not only is it true that goods may be bailed under an agreement to return not the goods in specie but their product, as where milk is to be made into cheese or butter, or apples into cider; but if A. transfers the possession of A.'s horse to B. as A.'s agent, instructing B. to take the horse to town and receive in exchange therefor a horse from C., which is to be brought back to A., it is clear that B. is a bailee. It may be urged that while B. has A.'s horse in his possession, A. may at any time revoke B.'s authority and reclaim the horse originally delivered to B. and that, therefore, B. is within the definition of Sir William Jones, since he is under an obligation to restore the specific thing given him. This is true, but the fact that the bargain does not contemplate the return of the specified thing delivered to the agent is likely to lead and has led courts to conceive that under Sir William Jones' definition the transaction is not a bailment. Moreover, it may be a part of the bargain between A. and B. that B. shall derive a profit for making the exchange suggested and B. may have made some advance upon the property, and in that case B.'s agency, if revocable at all, cannot be revoked without repaying him any advance he may have 5 2d ed., p. 102. 6 Brown, Bailments, 3; Benjamin, Sales; 2 Kent's Comm. 589; South Australian Ins. Co. v. Randell, L. R. 3 P. C. 101; Chickering v. Bastress, 130 Ill. 206, 22 N. E. 542, 17 Am. St. Rep. 309. See the criticism in Norwegian Plow Co. v. Clark, 102 Iowa, 31, 36, 70 7 See Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215. 8 The bailment of grain in elevators where it is mixed with other grain involves the application of the same principle. See Williston, Sales, § 154. made and profits he would have earned. Yet it is clear that B. would be still a bailee of A.'s goods, not a purchaser of them. Where goods are consigned for sale, it is always the hope, and generally the expectation, that the goods consigned will be sold by the consignee and money instead of the goods be returned to the owner. Nevertheless it is clear that the consignee is properly to be described as a bailee if his holding is for the consignor and the sale is made by him as agent for the consignor. This indeed is the typical case of a factor. In such a case money received by the consignee or factor for the goods is received under an agency or trust in favor of the consignor, and the duties of the consignee in regard to keeping his principal's funds separate from his own are governed by the general rules of the law of agencies and trusts which forbid an agent or trustee to mingle his own money with that of his principal or beneficiary, and forbid him to substitute the relation of debtor and creditor for that of principal and agent or of trustee and cestui que of trust. 10 § 1036. How far a bailee can deny his bailor's title. 11 It is generally stated that a bailee cannot deny his bailor's title; but the maxim is too broadly stated in the early cases, and has sometimes been repeated in recent times without qualifications that are necessary. It is true that the bailee cannot set up title in himself, unless it has been acquired directly or indirectly from a transfer made by the bailor subsequent to the bailment. Acceptance of the bailment Richardson Mfg. Co. v. Brooks, 95 Me. 146, 49 Atl. 672. 10 In B. Sturtevant Co. v. Cumberland, 106 Md. 587, 68 Atl. 351, 353, the court more accurately than Sir William Jones says: "The identical thing is to be restored or its proceeds after sale." And see Sturm v. Boker, 150 U. S. 312, 329, 37 L. Ed. 1093, 14 Sup. Ct. Rep. 99; Ellet-Kendall Shoe Co. v. Martin, 222 Fed. 851, 138 C. C. A. 277; Holbert v. Keller, 161 Ia. 723, 142 N. W. 962. But even this definition does not cover a consignment with an option on the part of the bailee to become merely a debtor for a fixed amount on sale of the goods or on another contingency; yet until the contingency happens there is a bailment. See Collyer v. Krakauer, 122 N. Y. App. Div. 797, 107 N. Y. S. 739; American Car Co. v. Altoona R. Co., 218 Pa. 519, 67 Atl. 838; State v. Howell, 3 Boyce (Del.), 387, 84 Atl. 871. 11 See Jensen v. Eagle Ore Co., 47 Colo. 306, 107 Pac. 259, 33 L. R. A. (N. S.) 681, and note. |