13.

Interest of Bailor and Bailee in the Bailed Goods.

14. Estoppel of Bailee to Deny Bailor's Title.

15. Bailor Must Not Expose Bailee to Danger without Warning.

16. Care to be Exercised by the Bailee.

17. Presumption of Negligence from Loss or Injury.

18. Bailee Must Act in Good Faith.

19. Redelivery of Bailed Goods by the Bailee.

20. Termination of the Bailment.

INTRODUCTORY

8. There are certain circumstances, as we have seen, that are essential to the existence of a bailment, just as there are certain legal incidents or general principles that are common to all bailments.

In addition, the law prescribes certain rights and duties as inhering in the notion of a bailment; but these rights and duties may be varied at will by the agreement of the parties, provided this agreement is not in contravention of positive law or a sound public policy.

It is the purpose of the present chapter to discuss the circumstances essential to the existence of a bailment, the general principles of law common to all bailments, and finally the rights and duties of the parties to a bailment, when these rights and duties are not enlarged or diminished by special contract.

The very definition of a bailment implies that there are certain essential features that are present in all bailments and that the presence of all these features makes the relation a bailment, as distinguished from the various other relations known to the law The plainest of common sense would therefore seem to demand that there should first be a discussion of the general properties that are found alike in all bailments, before we take up the unique features that distinguish one class of bailments from another. This not only makes for clearness and accuracy, but obviates the necessity

of a repetition of these general features in the treatment of each of the various classes of bailments.

In addition, the law prescribes certain rights and duties as attaching to the bailor or bailee merely by virtue of the fact that they are parties to the bailment relation, unless the parties have themselves made some different provision for these rights and duties. Certain general observations on this subject, too, should precede any detailed treatment of the rights and duties of the bailor and bailee, as affected by the specific class to which the bailment in question belongs.

General Principles of Contract and Agency Apply

Bailments are in the great majority of instances, though not always, created by express contract. In such cases, the general rules of contract apply and need no discussion here. Thus, as to the competency of the parties to contract, the construction or validity of the contract, the effect of fraud, duress, etc., no unique considerations affect the application of the same general rules that would govern other classes of contracts.

Again, bailment contracts may be, and frequently are, made, not by the parties acting directly, but through the intervention of agents. Here the usual rules of agency can be invoked and the bailment contract, just as any other contract, made in the name of the principal by the agent acting within the scope of his authority is just as binding on the principal as if made by him in person. When the agent, however, accepting the goods, acts

1 Post, §§ 22, 33, 45, 71.

2 Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Scanlan v. Cobb, 85 Ill. 296; Shoulters v. Allen, 51 Mich. 531, 16 N. W. 888; Hagebush v. Ragland, 78 Ill. 40.

3 Singar Manuf'g Co. v. Converse, 23 Colo. 247, 47 Pac. 264; Newhall v. Paige, 10 Gray (Mass.) 366.

4 Camp v. Dill, 27 Ala. 553.

City Bank of New Haven v. Perkins, 29 N. Y. 554, 86 Am. Dec. 332; Brown v. Warren, 43 N. H. 430; Boynton v. Payrow, 67 Me. 587; McCready v. Haslock, 3 Tenn. Ch. 13; Lloyd v. Barden, 3 Strob. (S. C.) 343.

• Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Blake v. Kimball, 106 Mass. 115, 116; Stevens v. Boston & M. R., 1 Gray (Mass.) 277; Macklin v. Frazier, 9 Bush (Ky.) 3; Schouler, Bailm. (2d Ed.) §§ 19, 30, 33; Story, Bailm. § 55; First Nat. Bank of Carlisle v. Graham, 79 Pa. 106, 21 Am. Rep. 49. In the case of Lloyd v. Barden, 3 Strob. (S. C.) 343, it was held that, to charge a bailee with an article lost, it is not necessary that, in every case, the delivery should have been to him individually, or to one expressly or specifically authorized to receive for him; but an agency to receive may be implied in the same manner as such agency may be implied in relation to articles which were to be carried for hire. "The master and owner of a house or warehouse, allowing his servants or clerks to receive for custody the goods of another, and

without authority, the agent himself is then the bailee, and the principal is not bound by the transaction."

Infant Bailees

8

The subject of parties as bailees who are incompetent to contract requires brief mention here. The typical and most important case is that of an infant. An infant's contracts are, as a rule, voidable at his option, and the bailment contract is no exception to this rule. When the bailment is not one created by contract, as when one finds lost goods and takes them into his possession, the infant may become a bailee by the same acts as a person sui juris. Again, the infant is liable for his torts. This raises the interesting and often difficult question of the liability of the infant under a bailment created by contract. As to mere failure to carry out the terms of the contract, or even a breach of the bailment contract as a contract, the infant can escape liability by pleading infancy.10 Further, so long as he keeps within the terms of the bailment, using the bailed chattel only for the purposes agreed on, the infant is not liable for any loss or damage due merely to his want of skill or experience provided he has no wrongful intent." But it is said that the disability of the infant is to be used by him as a shield and not as a sword. Accordingly, when the infant deespecially if the practice be general and unlimited, as is the case with banks in relation to special deposits, will be considered the bailee of the goods. so received, and will incur the duties and liabilities belonging to that relation. Not so if the servant, secretly, and without the knowledge, express or implied, of the master, he not having authorized or submitted to the practice, receives the goods for such purpose; for no man can be made the bailee of another's property without his consent." Parker, C. J., in Foster v. President, etc., of Essex Bank, 17 Mass. 479, 498, 9 Am. Dec. 168. And see Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. (U. S.) 604, 650, 19 L. Ed. 1008; Elliot v. Abbot, 12 N. H. 549, 37 Am. Dec. 227; Farrar v. Gilman, 19 Me. 440, 36 Am. Dec. 766; McHenry v. Ridgely, 2 Scam. (Ill.) 309, 35 Am. Dec. 110; Everett v. United States, 6 Port. (Ala.) 166, 30 Am. Dec. 584.

7 Meech v. Smith, 7 Wend. (N. Y.) 315. See, also, Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168.

8 Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229; Sanger v. Hibbard, 104 Fed. 455, 43 C. C. A. 635; Lansing v. Michigan Cent. R. Co., 126 Mich. 663, 86 N. W. 147, 86 Am. St. Rep. 567. For extended collection of cases, see 22 Cyc. p. 620.

Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207; Saum v. Coffelt, 79 Va. 510; Sikes v. Johnson, 16 Mass. 389; cases collected 22 Cyc. 618, 619.

10 Caswell v. Parker, 96 Me. 39, 51 Atl. 238; Prescott v. Norris, 32 N. H. 101; Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510; Monumental Bldg. Ass'n No. 2 v. Herman, 33 Md. 128.

11 Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350; Young v. Muhling, 48 App. Div. 617, 63 N. Y. Supp. 181; CHURCHILL v. WHITE, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64, Dobie Cas. Bailments and Carriers, 19; Hill v. Becker, 9 Ky. Law Rep. 619.

DOB.BAILM.-2

parts from the purpose for which the bailment was created and to that extent exercises an unlawful dominion over the bailed chattel, he is then guilty of the tort of conversion and his infancy is no defense.12 Thus an infant, hiring a horse to go to one place, who goes on a much longer journey to another place, is liable in spite of his infancy.18 Again, for his willful and intentional wrong in beating or otherwise misusing the horse which he had hired, the infant would also be responsible.14 Nor would a plea of infancy excuse the infant bailee's refusal to surrender the bailed chattel after the termination of the bailment.1 15

Corporations and Partnerships

It is probably already true, or at least soon will be, that in a majority of concrete cases the bailor or bailee is a corporation. The corporation, acting within its corporate powers, has the fullest right to become either a bailor or bailee.18 Here, of course, resort must be had to the large body of legal doctrines governing these artificial entities that we call corporations.

Partnerships, in a sense, stand midway between individual persons and corporations. Here again the partnership may become a bailor or bailee, with the rights and duties thereto attached." The law of partnership is thus called into play, probably most frequently, in determining here, as elsewhere, to what extent the acts of one of the partners are binding in the partnership.

Liability of the Parties under Special Contract

As we have seen, the law affixes certain rights and duties to the bailment relation, when the parties have not themselves made provisions on the subject.18 These rights and duties, though, are peculiarly within the control of the bailor and bailee, who may by their contract enlarge or diminish them at will, subject only to the

12 Freeman v. Bowland, 14 R. I. 39, 51 Am. Rep. 340. 18 Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85.

14 Moore v. Eastman, 1 Hun (N. Y.) 578; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. See, also, CHURCHILL v. WHITE, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64, Dobie Cas. Bailments and Carriers, 19. 15 Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; CHURCHILL v. WHITE, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64, Dobie Cas. Bailments and Carriers, 19.

16 Duncomb v. New York, H. & N. R. Co., 84 N. Y. 190; Baldwin v. Canfield, 26 Minn. 43, 1 N. W. 261, 276; Lloyd v. West Branch Bank, 15 Pa. 172, 53 Am. Dec. 581; Combination Trust Co. v. Weed (C. C.) 2 Fed. 24; Chouteau v. Allen, 70 Mo. 290; Lehman v. Tallassee Manufg Co 64 Ala. 567.

17 George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Hopkins v. Thomas, 61 Mich. 389, 28 N. W. 147.

18 Story, Bailm. § 10; President, etc., of Conway Bank v. American Exp. Co., 8 Allen (Mass.) 512, 516.

limitation that this contract must not be illegal or against public policy.19

Questions in this connection are concerned chiefly with how far the bailee may by contract restrict his liability; the law does not prevent him from thus enlarging it indefinitely.20 That a bailee would not be permitted by special contract to exempt himself from liability for his fraud or its equivalent, is perfectly clear." The same would also be true as to his active wrongdoing. Nor could he thus contravene a well-settled rule of law, as, for example, by attempting to stipulate that he would not be liable for the acts of his agents, even though committed within the scope of their authority.22

The question of the greatest difficulty is whether a bailee may validly contract against responsibility for his negligence, or failure to exercise the proper degree of care, varying in the different classes of bailments, ordinarily imposed upon him by law. That the common carrier 23 and innkeeper," who pursue public callings, cannot do this, is well settled. It would seem, though, that an ordinary bailee may thus relieve himself of responsibility for his negligence, or mere negative failure to exercise a specific degree of care, as distinguished from his fraud or active wrongdoing.

25

19 Ames v. Belden, 17 Barb. (N. Y.) 515; Kettle v. Bromsall, Willes, 118; Trefftz v. Canelli, L. R. 4 P. C. 277; Parker v. Tiffany, 52 Ill. 286; Remick v. Atkinson, 11 N. H. 256, 35 Am. Dec. 493; Vaughan v. Webster, 5 Har. (Del.) 256. But see, as to a carrier's contract to carry "safely," Austin v. Manchester, S. & L. Ry. Co., 5 Eng. Law & Eq. 329; Shaw v. York & N. M. Ry. Co., 13 Q. B. 347; Wells v. Steam Nav. Co., 8 N. Y. 375; Pennsylvania R. Co. v. McCloskey's Adm'r, 23 Pa. 526. The liability of a bailee, however, is not to be enlarged or restricted by words of doubtful meaning. The intent to vary the liability imposed by law must clearly appear. Trefftz v. Canelli, L. R. 4 P. C. 277; Belden v. Perkins, 78 Ill. 449.

20 Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093; Reinstein v. Watts, 84 Me. 139, 24 Atl. 719; Rohrabacher v. Ware, 37 lowa, 85.

21 Story, Bailm. § 32; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Coffield v. Harris, 2 Willson, Civ. Cas. Ct. App. (Tex.) § 315; Alexander v. Greene, 3 Hill (N. Y.) 9.

22 Peet v. Railway Co., 10 H. L. Cas. (Eng.) 473, 494.

25 The ordinary bailee is under no legal duty to enter upon the bailment, and, being able to refuse, should be allowed to prescribe his terms, unless, as indicated, he seeks to escape from his fraud or active wrong. Gashweiler v. Wabash, St. L. & P. Ry. Co., 83 Mo. 112, 53 Am. Rep. 558; Wells v. Steam Nav. Co., 8 N. Y. 375, Alexander v. Greene, 3 Hill (N. Y.) 9. Contra, Lancaster County Nat. Bank v. Smith, 62 Pa. 47. On this subject, see also 1 Hutchinson on Carriers, § 40; Bridwell v. Moore, 8 Ky. Law Rep. 535; Memphis & C. R. Co. v. Jones, 2 Head (Tenn.) 517; Coffield v. Harris, 2 Willson, Civ. Cas. Ct. App. (Tex.) § 315.