66

§ 3002. Effect of special contract. If there is no special contract of bailment, the liability and duty of the parties is determined under a contract implied by law according to the character of the bailment.65 But the parties by a special contract may determine the manner and time of the accomplishment of the bailment purpose, and may regulate the responsibilities and liabilities of the parties to any extent not forbidden by public policy or by statute. So the bailee may be relieved from all liability, or may become an insurer, but any enlargement or restriction of the liability imposed by law must clearly appear from words of express and unambiguous meaning. Public policy forbids a bailee to contract against the consequences of wilful misconduct or gross negligence," it seems, and probably no court would uphold a contract making one unaccountable for the acts of his agents and servants."

68

70

67

§ 3003. Compound or mixed bailments.-"Compound bailments may exist, involving the mingled undertakings of custody, carriage, or work upon a thing; or again, so that one part of the service is upon recompense and another gratuitous; and a bailee's liability may shift accordingly.”71

§ 3004. Redelivery.-As we have seen, the redelivery of the property bailed to the bailor, or the disposal of it as he directs, after the accomplishment of the bailment purpose, is an essential element of the bailment contract. The general rule is that the identical property delivered must be returned, together

If the

with all accessions to it during the term of bailment."2 purpose of the bailment contemplated that the property should be changed in form, as where milk is bailed to a dairyman to be returned as cheese and butter, or grain to a miller to be made. into flour, or cloth to a tailor to be made into clothes, delivery in the changed form is expected.73 And ordinarily delivery of other property of the same kind and equal value and quantity is not a fulfilment of the obligation to redeliver the specific chattel." But it is held that this rule does not apply to stocks, for there is no conceivable reason why another stock certificate of precisely similar character is not the precise equivalent of the one bailed, though in the case of ordinary bailments there may be special reasons for desiring the return of the specific chattel.75 And it is the rule where grain is stored in a common bin with the grain of the warehouseman and others, where it is impossible to return the exact subject of the bailment, yet the relation is that of a bailment and not a sale, and the obligation to redeliver is met by returning a like quantity of grain of like quality."

§ 3005. Termination of relation.-If the contract of bailment is limited as to time, the bailment is ended at the expiration of the time, and the bailee must either redeliver the property or dispose of it as the owner directs or excuse his failure, and if he does not the owner may hold him for conversion, or as having renewed the bailment on the same terms." When the bailment purpose is accomplished either party may end the bailment, the bailor by demanding the return of the goods, or the bailee by tendering them back to the bailor, in the absence of legal excuse

72

7 Rice v. Nixon, 97 Ind. 97, 49 Am. Rep. 430; Sexton v. Graham, 53 Iowa 181, 4 N. W. 1090; Ledyard v. Hibbard, 48 Mich. 421, 12 N. W. 637, 42 Am. Rep. 474; Bretz v. Diehle, 117 Pa. St. 589, 11 Atl. 893, 2 Am. St. 706, and note; note 94 Am. St. 221, and cases cited.

76 Van Zile Bailments (2d ed.), § 60; Dale v. See, 51 N. J. L. 378, 18 Atl. 306, 5 L. R. A. 583, 14 Am. St. 688; Ball v. Liney, 48 N. Y. 6, 8 Am. Rep. 511; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607. 73 Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215n; Schouler Bailments (3d ed.), § 6; Van Zile Bailments (2d ed.), § 61.

"Van Zile Bailments (2d ed.), § 60; Atkins v. Gamble, 42 Cal. 86, 10 Am. Rep. 282.

Atkins v. Gamble, 42 Cal. 86, 10 Am. Rep. 282.

77

Benje v. Creagh's Admr., 21 Ala. 151; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; New York L. E. & W. R. Co. v. New Jersey Elec. R. Co., 60 N. J. L. 338, 38 Atl. 828; Cobb v. Wallace. 5 Cold. (Tenn.) 539, 98 Am. Dec. 435n

79

for non-delivery.78 As in the case of other contracts, a bailment may be terminated at any time by the mutual agreement of the parties." Where the bailment is for no fixed time, or is for the sole benefit of the bailor, he may terminate it at any time.80 But where the bailment is for the sole benefit of the bailee, the bailor may not terminate it in such a manner or at such a time as to seriously injure the bailee, with no particular benefit to himself.1 If the bailment is for mutual benefit, the bailor may not terminate the contract except for a breach of the contract or unwarranted action inconsistent therewith on the part of the bailee.82 The bailee has always the power to terminate the bailment and at law the bailor cannot compel the performance of the contract, nor will equity ordinarily decree the performance of personal services.83 But usually the bailee has no right to do so, except in the case of a commodate for his own benefit, when he can terminate the contract at any time by redelivery, and a gratuitous depositary or mandatary may usually terminate the contract upon reasonable notice to the bailor, by redelivery, but he has no right to abandon the undertaking to the injury of the bailor. The bailment may be terminated by operation of law, as where the status of the parties is changed, by the bailee becoming the owner of the property or one of the parties on whom the performance of the bailment purpose depends becoming incompetent, as by bankruptcy, or insanity, or by the marriage of a woman under the common law.86 So the death of either of the parties will terminate the

The negligent delivery to the wrong person of a parcel by the bailee's agents for its delivery is a conversion. Murry v. Postal Tel. &c. Co., 210 Mass. 188, 96 N. E. 316.

78 See cases cited in note 77, and Chattahoochee Nat. Bank v. Schley, 58 Ga. 369; Morse v. Androscoggin R. Co., 39 Maine 285; Ouderkirk v. Central Nat. Bank, 119 N. Y. 263, 23 N. E. 875.

70 Story Bailments (9th ed.), §§ 418, 418a.

60 Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435n. See Smith v. Niles, 20 Vt. 315, 49 Am. Dec. 782.

81 Miller v. Dayton, 94 Minn. 340, 102 N. W. 862.

84

Green V. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; Crump v. Mitchell, 34 Miss. 449; Sargent v. Gile, 8 N. H. 325; Wentworth v. McDuffie, 48 N. H. 402; King v. Bates, 57 N. H. 446; Dunham v. Lee, 24 Vt. 432; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197.

83 See Goddard Bailments, § 27; Story Bailments (9th ed.), 202, 258, 271.

84 Goddard Bailments, § 27; Roulston v. McClelland, 2 E. D. Smith (N. Y.) 60.

85 Van Zile Bailments (2d ed.), § 81; Goddard Bailments, § 33.

86

Goddard Bailments, 8 32; Story Bailments (9th ed.), § 206; Parker v. Smith, 16 East 382; Minett v. For

contract unless it is of a nature that can be performed by the personal representative of the deceased.87 So where the subject of the bailment is destroyed the contract is terminated, for there is then nothing upon which the bailment purpose can be accomplished, but the liabilities of the parties would be governed by the general rules before mentioned.88 And in many cases the effect as to the termination of the contract by any of the happenings above mentioned depends upon the character of bail

ment.

89

§ 3006. Form of action and burden of proof.—The bailor may as a rule bring an action either in contract or in tort for loss or injury to the goods in the possession of the bailee. The weight of modern authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were returned by him in an injured or damaged condition, or were not returned or delivered over at all, he has made out a case of prima facie negligence or misconduct against the bailee, if ordinarily such injury or loss could not have occurred without negligence on the part of the bailee, and the bailee must show that the loss or damage was caused without his fault. The effect of this rule is not to shift the burden of

90

rester, 4 Taunt. 541; Ex parte Newhall, 2 Story 360; Van Zile Bailments (2d ed.), § 83.

87 Story Bailments (9th ed.), $$ 202-205, 277, 418, 419; Schouler Bailments (3d ed.), § 156; Farrow v. Bragg's Admr., 30 Ala. 261; Mecartney v. Carbine, 108 Ill. App. 282; Marvel v. Philips, 162 Mass. 388, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. 370; McKeown v. Harvey, 40 Mich. 226; Bambrick v. Webster Groves' Assn., 53 Mo. App. 225; Blount v. Hamey, 43 Mo. App. 644; Morris v. Lowe, 97 Tenn. 243, 36 S. W. 1098; Fulton v. Denison Nat. Bank, 26 Tex. Civ. App. 115, 62 S. W. 84; Hunt v. Rousmanier's Admrs., 8 Wheat. (U. S.) 174, 5 L. ed. 589.

88

8 New York L. E. & W. R. Co. v. New Jersey &c. R. Co., 60 N. J. L. 338, 38 Atl. 828; Goddard Bailments, § 33.

sa Schouler Bailments including Carriers (1905), § 12, citing 1 Chitty

Pl. 151; Coal Co. v. Richter, 31 W. Va. 858, 8 S. E. 609. See Hackney v. Perry, 152 Ala. 626, 44 So. 1029; Rhodes &c. Co. v. Freeman, 2 Ga. App. 473, 58 S. E. 696; Redel v. Missouri Valley Stone Co., 126 Mo. App. 163, 103 S. W. 568.

90

Schouler on Bailments (3d ed.), § 23; Schouler Bailments including Carriers (1905), § 12; Hale Bailments, p. 31; Pratt v. Waddington, 23 Ont. L. R. 178, 21 Ann. Cas. 840, and cases cited in note; Hackney v. Perry, 152 Ala. 626, 44 So. 1029; Haas v. Taylor, 80 Ala. 459, 2 So. 633; Boies v. Hartford & N. H. R. Co., 37 Conn. 272, 9 Am. Rep. 347; Johnson v. Perkins, 4 Ga. App. 633, 62 S. E. 152; Bates v. Capital State Bank, 18 Idaho 429, 110 Pac. 277; Cumins v. Wood, 44 Ill. 416, 92 Am. Dec. 189; Funkhouser v. Wagner, 62 Ill. 59; Lichtenhein v. Boston &c. R. Co., 11 Cush. (Mass.) 70; Yazoo &c. R. Co. v. Hughes, 94 Miss. 242, 47

proof from the plaintiff to the defendant, but simply the burden of proceeding. The plaintiff must in all instances prove that the bailee was negligent, but when he shows that the goods were injured while in the hands of the bailee, or were not delivered upon demand, he has made out a prima facie case, or created a presumption of negligence, which the defendant may overcome by offering evidence to show that he was not negligent, or by showing that the cause of the loss, injury or nondelivery was fire, theft, accident or some other excusable cause, and if he produces such evidence, the plaintiff in order to make out his case must show that the defendant was in fact negligent, and that his negligence caused the loss or contributed thereto. It has been held that the bailee has sufficiently exonerated himself from liability when he has shown that the cause of the loss was a mystery."

§ 3007. Distinction between bailment and debt, sale or gift. -In the civil law there was a contract known as the mutuum, or the loan of consumable goods, in which the recipient of the goods was to return, not the same identical property as in the case of a bailment, but other goods of the same kind. 92 Under the common law this would not be a bailment, but a sale, which is a transfer of the absolute or general property in a thing for a price. The distinction between bailment and sale is clear. In bailment the title to the property does not pass to the bailee, but

93

So. 662, 22 L. R. A. (N. S.) 975n; Levi v. Missouri &c. R. Co., 157 Mo. App. 536, 138 S. W. 699; Wiser v. Chesley, 53 Mo. 547; Sulpho-Saline Bath Co. v. Allen, 66 Nebr. 295, 92 N. W. 354, 1 Am. & Eng. Ann. Cas. 21, and note; Collins v. Bennett, 46 N. Y. 490; Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999, 43 Am. St. 725; Seybolt v. New York L. E. & W. R. Co., 95 N. Y. 562; Hasbrouck v. New York Central R. Co., 137 App. Div. (N. Y.) 532, 122 N. Y. S. 123; Allen v. Fulton Motor Car Co., 128 N. Y. S. 419, 71 Misc. 190; Oswego Bank v. Dovle, 91 N. Y. 32, 43 Am. Rep. 634; Safe Deposit Co. v. Pollock, 85 Pa. St. 391, 27 Am. Rep. 660; Gleason v. Beers' Estate, 59 Vt. 581, 10 Atl. 86. 59 Am. Rep. 757; Pregent v. Mills, 51 Wash. 187, 08 Pac. 328.

91 Sanford v. Kimball, 106 Maine 355, 76 Atl. 890, 138 Am. St. 345.

92 Street, Foundations of Legal

Liability, vol. 2, p. 3; Schouler Bailments (3d ed.), § 6; Hale Bailments, p. 8. When an identical thing is to be restored, though in an altered form, the contract is one of bailment, but when the obligation is to restore other things of the like kind, and equal in value, it becomes a debt. Wetherell v. O'Brien, 140 Ill. 146, 33 Am. St. 221. See Baker v. Priebe, 59 Nebr. 597, 81 N. W. 609; Smith v. Clark, 21 Wend. (N. Y.) 83, 34 Am. Dec. 213n; Carpenter v. Griffin, 9 Paige (N. Y.) 310, 37 Am. Dec. 396.