detention or illegal control of the chattels of another amounts to a conversion. An act of the bailee, then, to constitute a conversion, must amount to an unauthorized assumption of dominion over the chattel, both hostile to, and exclusive of, the owner. The holding of the bailee must be entirely adverse to the bailor, since the former's possession was entirely lawful in its beginning.

This brings us to the debated question whether a bailee, who has intentionally deviated, however slightly, from the bailment contract as to the time, purpose, or manner of the use of the hired chattel, is thereby ipso facto guilty of a conversion. This seems to be the holding of a majority of the courts," though a respectable minority hold the opposite view.32 The majority holding, how

81 COGGS v. BERNARD, 2 Ld. Raym. 909, 915, Dobie Cas. Bailments and Carriers, 1 (dictum of Lord Holt). And see Disbrow v. Tenbroeck, 4 E. D. Smith (N. Y.) 397; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Rotch v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310; Morton v. Gloster, 46 Me. 520; Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; Fish v. Ferris, 5 Duer (N. Y.) 49; McNeill v. Brooks, 1 Yerg. (Tenn.) 73; Wentworth v. McDuffie, 48 N. H. 402; Lucas v. Trumbull, 15 Gray (Mass.) 306; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Buchanan v. Smith, 10 Hun (N. Y.) 474; Perham v. Coney, 117 Mass. 102; Lane v. Cameron, 38 Wis. 603; Malone v. Robinson, 77 Ga. 719; Murphy v. Kaufman, 20 La. Ann. 559; Fisher v. Kyle, 27 Mich. 454; Welch v. Mohr, 93 Cal. 371, 28 Pac. 1060; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340; Evertson v. Frier (Tex. Civ. App. 1898) 45 S. W. 201; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30. See, also, Raynor v. Sheffler, 79 N. J. Law, 340, 75 Atl. 748.

32 Thus in DOOLITTLE v. SHAW, 92 Iowa, 348, 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 562, Dobie Cas. Bailments and Carriers, 67, the court said: "To constitute a conversion in a case like that at bar, there must be some exercise of dominion over the thing hired, in repudiation of, or inconsistent with, the owner's rights. We hold that the mere act of deviating from the line of travel which the hiring covered, or going on beyond the point for which the horse was hired, are acts which, in and of themselves, do not necessarily imply an assertion of title or right of dominion over the property inconsistent with, or in defiance of, the bailor's interest therein." This rule seems to do substantial justice, though it is opposed to the weight of authority.

In Harvey v. Epes, 12 Grat. (Va.) 153, the bailment contract was one for the hire of slaves for a year, to work in a certain county. They were taken by the hirer, without the owner's consent, to another county, but employed in the same kind of work, and while there died. The court, in an elaborate opinion, held that the removal of the slaves to a county other than that to which they were hired to work in was not of itself a conversion. It said: "Upon the whole, I am of the opinion that, in the case of a bailment for hire for a certain term, the use of the property by the hirer, during the term, for a different purpose or in a different manner from that which was intended by the parties, will not amount to a conversion for which trover will lie, unless the destruction of the property be thereby occasioned, or at least unless the act be done with intent to convert the property, and thus to

ever, is criticised by Judge Story; " Mr. Schouler conceives the "leaven of common sense" as fighting against it; while Mr. Street 35 more strongly characterizes it as "a judicial blunder" and as "among eccentric doctrines which have become inbedded in the law of conversion."

A bailment upon

destroy or defeat the interest of the bailor therein. hire is not conditional in its nature, any more than any other contract, and, in the absence of an express provision to that effect, the bailee will not, in general, forfeit his estate by a violation of any of the terms of the bailment. * If he merely uses the property in a manner or for a purpose not authorized by the contract, and without destroying it, or without intending to injure or impair the reversionary interest of the bailor therein, such misuser does not determine the bailment, and therefore is not a conversion for which trover will lie."

In Carney v. Rease, 60 W. Va. 676, 55 S. E. 729, Brannon, J., said: "The doctrine of Harvey v. Epes is considered as sound in a note by Freeman in 12 Am. Dec. 621. I consider the other rule extreme and hard. See DOOLITTLE v. SHAW, supra, citing the Harvey Case and holding its principles. President Lincoln, as counsel, successfully maintained this position in Johnson v. Weedman, 4 Scam. (Ill.) 495." See cases cited in note mentioned 12 Am. Dec. 621. See, also, Farkas v. Powell, 86 Ga. 800, 13 S. E. 200, 12 L. R. A. 397, in which this language was used: "We can see no good reason to hold the hirer liable for an injury to the horse which occurred without his fault, after he had returned with it within the limits of his original contract, although he had been guilty of a technical conversion by riding it three miles beyond the point to which it was hired to go, the extra distance not causing or contributing to the injury. We have been unable to find any case, the facts of which are like the facts in this. Nearly all the cases which hold the hirer liable when he has deviated from the terms of his contract are cases in which he was negligent in fact, or willfully and wantonly misconducted himself, or had overdriven the horse, or destroyed or ruined the property while beyond the limit or in the course of deviation from the purpose of hiring." As examples the court cited Mayor, etc., of City of Columbus v. Howard, 6 Ga. 213; Gorman v. Campbell, 14 Ga. 137; Collins v. Hutchins, 21 Ga. 270; Lewis v. McAfee, 32 Ga. 465; Malone v. Robinson, 77 Ga. 719. See, also, Weller & Co. v. Camp, 169 Ala. 275, 52 South. 929, 28 L. R. A. (N. S.) 1106.

33 Story, Bailm. §§ 409, 413-413d.

84 Schouler, Bailm. (2d Ed.) §§ 140, 141.

35 1 Street, Foundations of Legal Liability, p. 257. The same author (vol. ume 2, p. 287) continues: "As an application of the doctrine of conversion the position assumed is clearly untenable, for the general principle underlying conversion is that where possession has a lawful inception, no act will amount to a conversion unless it is of such character as conclusively to show an intention on the part of the bailee to hold adversely and to the exclusion of the rightful owner. Another circumstance which shows that the doctrine of conversion is not the true basis of the exceptional liability fastened upon the bailee in this situation is the fact that the rule in question cannot be invoked merely for the purpose of vesting the general property in the bailee, thus making him an unwilling purchaser of the animal. It is applied only in order to fix liability upon the bailee in case of actual loss. There is no case where a bailee, being willing and able to return the animal sound within a

36

To hold that one hiring a horse to ride to Q., who rides a mile beyond Q., or who turns off from the road to Q. to see a friend, or who takes a different ride to R. (the same distance as Q.), commits a conversion with its attendant responsibilities, seems indeed a harsh and unfair doctrine. There is little wonder, then, that courts have endeavored to escape from it. Thus, it has been suggested that a fair interpretation of the contract of hiring might enlarge the scope of discretionary use permitted to the bailee, who might then deviate from such contract, subject only to the possibility of having to pay an increased compensation. Other courts have held (without invoking the principle just mentioned) that a mere deviation from the agreed line of travel, or going beyond the point stipulated, are acts that do not of themselves imply an assertion of dominion over the chattel inconsistent with the owner's interest, and hence do not necessarily constitute a conversion.27

In most of the cases in which the general question under discussion has arisen, the owner has sought to hold the bailee liable, not for the full value of the chattel but rather for damage to the thing hired on the theory that the latter's conversion has made him an insurer absolutely responsible for loss or damage, regardless of the question of negligence.38 Now there may be many reasons for thus imposing so strict a responsibility on the erring bailee, such as the quasi trust reposed in him by the bailor; but these considerations do not demand that the bailee should be adjudged guilty of a technical conversion. When the action, then, is simply for damage to the chattel, it approximates more closely an action of trespass on the case for a misuser or abuse of the chattel, than an action of conversion for what is now called "the disseisin" of the chattel. When the bailor sues to hold the bailee responsible as insurer (by virtue of the conversion) for damages suffered, after he has received back the damaged chattel, he recovers the amount of damage done to the chattel; when he sues for the value of the chattel, his recovery is reduced by the value of the damaged chattel when he received it back.89 On

proper time, has been held liable in trover merely because he traveled in the wrong direction or went beyond the destination stated."

36 Schouler, Bailm. (2d Ed.) § 141.

37 Harvey v. Epes, 12 Grat. (Va.) 153, and DOOLITTLE v. SHAW, 92 Iowa, 348, 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 562, Dobie Cas Bailments and Carriers, 67, are the leading cases holding this view. See notes 32 and 35.

38 See cases cited in note 32. See, also, note 35.

39 Plummer v. Reeves, 83 Ark. 10, 102 S. W. 376; Gove v. Watson, 61 N. H. 136; Stillwell v. Farwell, 64 Vt. 286, 24 Atl. 243; Irish v. Cloyes, 8 Vt. 30,

whichever of these theories, then, the bailor proceeds, after receiving back the injured chattel, practically the measure of damages is the same. Of course, in a technical conversion, a right to sue for the full value of the chattel accrues to the bailor (and can be taken from him only by his consent); so that he can refuse to receive back the damaged chattel and recover its full value."0

It should be noted, in conclusion of this subject, that, as has been already indicated, when there has been no deviation from the contract of hiring, but mere negligence (or failure to exercise ordinary care) even the courts holding to the strict deviation theory concede that this is in no sense a conversion, in that there is no unwarranted assumption of dominion by the bailee. Thus, where a horse is hired for a ride to Q., and the bailee, while riding to Q. without deviation, rides the horse too fast, the bailee has not committed any conversion, but is merely negligent." Again there are some acts, such as an unauthorized sale,+2 or the consumption (as of food) or tortious destruction of the hired chattel, which amount to a conversion per se. On the other hand, a deviation, for example, is most equivocal, and the intent must

43

30 Am. Dec. 446; Ewing v. Blount, 20 Ala. 694; 2 Sedg. Dam. § 494; Renfro's Adm'x v. Hughes, 69 Ala. 581; Davenport v. Ledger, 80 Ill. 574; Carter v. Roland, 53 Tex. 540; Kinnear v. Robinson, 2 Han. (N. B.) 73; Jamison v. Hendricks, 2 Blackf. (Ind.) 94, 18 Am. Dec. 131; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, 106, Dobie Cas. Bailments and Carriers, 66; Sparks v. Purdy, 11 Mo. 219; Yale v. Saunders, 16 Vt. 243; Brady v. Whitney, 24 Mich. 154; Cook v. Loomis, 26 Conn. 483. Acceptance of the property may or may not show a waiver of the tort, according to circumstances. Certainly, an acceptance without knowledge of the tort would not be a waiver. See Lucas v. Trumbull, 15 Gray (Mass.) 306; Austin v. Miller, 74 N. C. 274; Reynolds v. Shuler, 5 Cow. (N. Y.) 323. See 47 Cent. Dig. "Trover and Conversion," § 277. 40 See cases cited in note 30.

41 See note 28. But in Wentworth v. McDuffie, 48 N. H. 402, it was held that the bailor of a mare may maintain trover against the bailee, if the bailee willfully and intentionally drove the mare at such an immoderate and violent rate of speed as seriously to endanger her life; he being aware of the danger at the time, and the death of the mare being caused thereby. "The act of the bailee in willfully, and intentionally driving the horse at such an immoderate rate of speed as he knew would seriously endanger the life of the horse is at least as marked an assumption of ownership, and as substantial an invasion of the bailor's right of property, as the act of driving the horse at a moderate speed one mile beyond the place named in the contract of hiring." Id.

42 See cases cited in note 27.

43 Barrett v. Mobile, 129 Ala. 179, 30 South. 36, 87 Am. St. Rep. 54; Atchison, T. & S. F. Ry. Co. v. Tanner, 19 Colo. 559, 36 Pac. 541; Turnbull v. Widner, 103 Mich. 509, 61 N. W. 784.

be ascertained. For, if such deviation was unintentional on the part of the bailee, then clearly it could not be considered a conversion.**

SAME-INTEREST OF THE BAILEE-RIGHT TO
BRING SUIT

48. The interest of the bailee in the thing hired amounts to a special property, which he by appropriate action can protect either against the bailor or third parties. When the injury is to his reversionary interest, or when the bailment is for an indefinite period, the bailor can sue third persons for injury to the thing hired.

45

The bailee acquires the right, as against the world, to hold and use the hired chattel during the time stipulated in the contract of hiring. His interest is therefore clearly a special property." This the bailee can, of course, protect by appropriate action, when it is tortiously interfered with either by third persons or the bailor. While in a suit against the bailor the bailee recovers merely for the injury to his own interest, in a suit against a third party for the destruction of the chattel it is generally held that

44 Where one unintentionally deviates from the line of travel, as where the hirer of a horse loses his way, he is not liable for conversion. To constitute conversion there must be an intention to exercise dominion over the property. Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514. Merely stopping along the road is not sufficient to constitute conversion. Evans v. Mason, 64 N. H. 98, 5 Atl. 766.

45 Ante, p. 104.

46 Jones, Bailm. 85, 86; Bac. Abr. "Bailment," C; Lee v. Atkinson, Yel. 172; 2 Bl. Comm. 395, 396; 2 Kent, Comm. (4th Ed.) lect. 40, p. 586; Wilbraham v. Snow, 2 Saund. (Eng.) 47, and note by Williams; Eaton v. Lynde, 15 Mass. 242; LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71.

47 LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71; Croft v. Alison, 4 Barn. & Ald. 590; Bac. Abr. “Trespass," C; Id. "Trover," C; Ludden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45; Warren v. Leland, 9 Mass. 265; Hall v. Pickard, 3 Camp. 187; Nicolls v. Bastard, 2 Cromp., M. & R. 659, 660; Bliss v. Schaub, 48 Barb. (N. Y.) 339; Woodman v. Town of Nottingham, 49 N. H. 387, 6 Am. Rep. 526; Rindge v. Inhabitants of Coleraine, 11 Gray (Mass.) 158; Hare v. Fuller, 7 Ala. 717; McGill v. Monette, 37 Ala. 49; Hopper v. Miller, 76 N. C. 402; White v. Bascom, 28 Vt. 268. An auctioneer, who, as agent of the owner, sells and delivers goods on a condition which is not complied with, may maintain replevin therefor. Tyler v. Freeman, 3 Cush. (Mass.) 261. See, also, Moore v. Winter, 27 Mo. 380; City of Chicago v. Pennsylvania Co., 119 Fed. 497, 57 C. C. A. 509; Brewster v. Warner, 136 Mass. 57, 49 Am. Rep. 5.