methods of refrigeration and temperature control have raised to a state of unusual efficiency.

19

The warehouseman, as is the case with other bailees, is not in general required by ordinary care to take out fire insurance on the goods. He can do so, however, for the full value of the goods, holding any excess beyond his own interest in trust for the bailor. Warehouse Receipts-Usage-Lien

It is the custom of warehousemen, on receiving goods to be stored, to issue a receipt or delivery order upon the presentation of which the goods are to be surrendered to the bailor or his order. These instruments are called "warehouse receipts," and in their general nature and legal incidents they are similar to the carrier's bills of lading.20 They are issued primarily in order that, as a symbol or representative of the goods, they might furnish the bailor an effective and simple method of dealing with the goods,21 as by a sale or pledge. They are not, strictly speaking, negotiable; but a transfer of the warehouse receipt, in general, confers the same measure of title that an actual delivery of the goods which it represents would confer.22 Warehouse receipts are discussed in other connections, and what is said as to bills of lading, in regard to their transfer and the rights conferred on their transferee, is, in general, equally true of warehouse receipts.23

The part that custom and usage may play in affecting the rights and duties of bailees is accentuated in the case of warehousemen. Such usages may and do explain and qualify the warehouseman's

& Heating Co. v. Kreiner, 109 Md. 361, 71 Atl. 1066 (failure to construct proper ice box and cold storage cellar); Greenwich Warehouse Co. v. Maxfield, 8 Misc. Rep. 308, 28 N. Y. Supp. 732 (freezing of fruit stored); LEIDY v. QUAKER CITY COLD STORAGE & WAREHOUSE CO., 180 Pa. 323, 36 Atl. 851, Dobie Cas. Bailments and Carriers, 100 (poultry molded by moisture).

19 Atwater v. Hannah & Co., 116 Ga. 745, 42 S. E. 1007.

20 See post, pp. 196, 214. See 35 Am. Bar Ass'n Rep. (1910) 1116, as to Uniform Warehouse Receipts Act and its adoption in various states. See also, McClain v. Merchants' Warehouse Co., 115 Fed. 295, 53 C. C. A. 155; Canadian Bank of Commerce v. McCrea, 106 Ill. 281, 292; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760; Miller v. Browarsky, 130 Pa. 372, 373, 18 Atl. 643.

21 Livingston v. U. Anderson & Son, 2 Ga. App. 274, 58 S. E. 505; Citizens' Banking Co. v. Peacock, 103 Ga. 171, 29 S. E. 752; Bush v. Export Storage Co. (C. C.) 136 Fed. 918; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572.

22 McNeil v. Hill, 16 Fed. Cas. No. 8,914; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760; Solomon v. Bushnell, 11 Or. 277, 3 Pac. 677, 50 Am. Rep. 475; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123.

23 See post, pp. 196, 211-214, 418.

contract to a highly appreciable extent, but custom and usage are never permitted to contradict a positive rule of law.

The warehouseman's lien is a special and not a general one.24 It is therefore controlled by the rules applicable to special liens, which have been previously discussed.25

27

26

In general, the liability of the warehouseman begins only when the goods have been delivered on his premises, and expressly or impliedly received by him." It has been held that as soon as the goods arrive, and the crane of the warehouse is applied to raise them into the warehouse, the liability of the warehouseman begins. If a warehouseman consents to take charge of goods before they reach the warehouse, he is liable from the moment that he thus takes charge. The liability 28 of a warehouseman ends with his delivery of the goods to the person rightfully entitled to them. Thus, where wheat is discharged into a vessel through a pipe controlled by the vessel, the warehouseman's liability ends with the discharge into the pipe.2 The liability of the warehouseman also ceases when the goods are taken from his possession without fault on his part, or lost by means for which he is not responsible.30 The general principle of bailments, that the bailee must return. to the bailor the identical goods delivered, of course, applies to the warehouseman.31 In practice, however, the actual working of the rule is often done away with as to warehousemen, when the

24 Schumacher v. Chicago & N. W. R. Co., 207 Ill. 199, 69 N. E. 825; J. I. Case Plow Works v. Union Iron Works, 56 Mo. App. 1; Reidenback v. Tuck (Sup.) 85 N. Y. Supp. 352; Wesling v. Noonan, 31 Miss. 599.

25 Ante, § 64..

26 Burr v. Daugherty, 21 Ark. 559; Vincent v. Rather, 31 Tex. 77, 98 Am. Dec. 516; Rodgers v. Stophel, 32 Pa. 111, 72 Am. Dec. 775; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175. See, also, Titsworth v. Winnegar, 51 Barb. (N. Y.) 148. A warehouseman cannot have possession of another's property, with its accompanying duties and responsibilities, forced upon him against his will. Delaware, L. & W. R. Co. v. Central S. Y. & T. Co., 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855. A warehouseman is responsible for the safety and security of goods after delivery in the warehouse on Sunday, the safe-keeping of goods being a work of necessity. Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 16 L. Ed. 682.

27 Thomas v. Day, 4 Esp. (Eng.) 262. See, also, De Mott v. Laraway, 14 Wend. (N. Y.) 225, 28 Am. Dec. 523; Randleson v. Murray, 8 Adol. & E. (Eng.) 109; Merritt v. Old Colony & N. R. Co., 11 Allen (Mass.) 80; Jeffersonville R. Co. v. White, 6 Bush (Ky.) 251, 252.

28 Ducker v. Barnett, 5 Mo. 97.

29 The R. G. Winslow, 4 Biss. 13, Fed. Cas. No. 11,736.

30 Sessions v. Western R. Corp., 16 Gray (Mass.) 132. Cf. Smith v. Frost, 51 Ga. 336.

81 United States v. Oregon R. & Navigation Co. (C. C.) 159 Fed. 975; Hale v. Milwaukee Dock Co., 29 Wis. 482, 9 Am. Rep. 603.

bailors expressly or impliedly (as by custom) consent to have their goods (generally grain) mixed in a common mass of similar goods, and each bailor has the right to withdraw from the uniform mass the quantity he deposited.32 Under such an arrangement, as we have already seen, the transaction is none the less a bailment because the bailor does not receive back the identical grain deposited, and each bailor remains the owner of a share in the mass determined by the percentage that the amount his deposit is of the entire

mass.

88

SAME-WHARFINGERS

84

A wharfinger is one who owns or keeps a wharf for the purpose of receiving and shipping merchandise to or from it for hire. The control of their own wharves by modern transportation companies has greatly diminished the practical importance of the wharfinger. He is in no sense a common carrier, fulfilling neither word of the term. The liabilities of wharfingers are thus substantially similar to those of warehousemen. They are therefore, like the latter, responsible only for ordinary care in securing the goods from loss or damage.35

86

The responsibility of a wharfinger begins and ends when he acquires, and when he ceases to have, the custody of the goods in that capacity. His liability thus begins when the goods are delivered on the wharf and he has either expressly or impliedly received them. This is frequently governed by custom or usage, which plays an unusually important part in this business. A mere delivery of goods at a wharf is not necessarily a delivery of them to the wharfinger, but there must be some act or assent on his part, which may be either express or implied, to the custody of the goods. Where goods are in the wharfinger's possession, to be sent on board of a vessel for a voyage, as soon as he delivers the

37

82 Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706; Hutchison v. Commonwealth, 82 Pa. 472; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623.

83 Ante, p. 8.

84 Black, Law Dict. (2d Ed.) p. 1226; Rodgers v. Stophel, 32 Pa. 111, 113, 72 Am. Dec. 775; Chapman v. State, 104 Cal. 690, 694, 38 Pac. 457, 43 Am. St. Rep. 158.

85 Buckingham v. Fisher, 70 Ill. 121; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175; Foote v. Storrs, 2 Barb. (N. Y.) 326; Cox v. O'Riley, 4 Ind. 368, 58 Am. Dec. 633.

86 Rodgers v. Stophel, 32 Pa. 111, 72 Am. Dec. 775; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175.

37 Buckman v. Levi, 3 Camp. (Eng.) 414; Gibson v. Inglis, 4 Camp. (Eng.) 72; Packard v. Getman, 6 Cow. (N. Y.) 757, 16 Am. Dec. 475.

possession and care of them to the proper officers of the vessel, although they are not actually removed from his wharf, he is deemed exonerated from any further responsibility, and the goods are deemed to be in the constructive possession of the officers of the ship.38

89

A wharfinger, like other depositaries for hire, has a lien on the goods for his wharfage. By inveterate custom, the wharfinger seems to have been among the few favored bailees to whom the law gives a general, as opposed to a special, lien.1o

SAME-SAFE-DEPOSIT COMPANIES

Safe-deposit companies make a business of renting to the public for a compensation the control of drawers, boxes, safes, or even rooms in their vaults. In these drawers, boxes, or safes, the persons renting them keep such valuables as papers or corporeal chattels of small bulk. During the time for which the drawer or box is rented, the renter alone has access to the drawer or box, to the exclusion even of the officers of the safe-deposit company. The property kept in the drawer or box is usually unknown to the company; in fact, this very secrecy is one of the elements highly desired. by the depositor, and for which he pays the compensation. Secrecy and security are, indeed, the distinctive advantages accruing to the

renter.

The company has control of the vault in which the drawer or box is situated. Its chief duty is to prevent any person other than the renter from having access to such drawer or box, and to

38 "When the responsibility of the ship begins, that of the wharfinger ends." Lord Ellenborough in Cobban v. Downe, 5 Esp. (Eng.) 41. A wharfinger who has illegally detained goods, which the owner has since agreed to accept and send for, is not liable for their destruction by fire, without his fault, after the owner has had a reasonable time to remove them. Carnes v. Nichols, 10 Gray (Mass.) 369. See, also, Merritt v. Old Colony & N. R. Co., 11 Allen (Mass.) 80, 83; Gass v. New York, P. & B. R. Co., 99 Mass. 227, 96 Am. Dec. 742.

39 Johnson v. The McDonough, Gilp. 101, Fed. Cas. No. 7,395; Ex parte Lewis, 2 Gall. 483, Fed. Cas. No. 8,310; Vaylor v. Mangles, 1 Esp. (Eng.) 109; Spears v. Hartly, 3 Esp. (Eng.) 81; Holderness v. Collinson, 7 Barn. & C. (Eng.) 212. See, generally, Brookman v. Hamill, 43 N. Y. 554, 3 Am. Rep. 731; Lenckhart v. Cooper, 3 Bing. N. C. (Eng.) 99; Barry v. Longmore, 4 Perry & D. (Eng.) 344. And see Sage v. Gittner, 11 Barb. (N. Y.) 120.

40 Taylor v. Margles, 1 Esp. (Eng.) 109; Spears v. Hartley, 3 Esp. (Eng.) 81; Dresser v. Bosanquet, 4 Best & S. (Eng.) 460; Holderness v. Collinson, 7 Barn. & C. (Eng.) 212, 14 E. C. L. 30.

41 Bouv. Law Dict.; Cent. Dict.

protect the contents thereof as well from personal as from impersonal destructive agencies, such as theft, fire, flood, etc. To this end, the company usually employs elaborate instrumentalities, both animate and inanimate.

The phenomenal development of this business, particularly in the important financial centers of the country, has compelled the courts to discuss the nature of the relation between the renter of the box, drawer, etc., and the company. That cases of loss or damage have so seldom been before the courts is a striking testimony to the efficiency of the companies in safeguarding the property in their vaults. At one time courts and writers seem to have taken it for granted that the relation was one of bailment and adjudged accordingly." Judge Sharswood, however, in an early case, pointed out that the contents of the safe remained in the possession of the renter. If this be true, and it can hardly be gainsaid, there has been no transfer of possession, and hence no delivery. Without a delivery, there can be no bailment.

43

In some of the cases holding the relation to be that of bailment, it was not at all necessary to the decision in the case to pronounce the defendant a bailee, as it was clearly liable for a breach of its contract undertaking. This was true, for example, in Roberts v. Stuyvesant Safe-Deposit Co., where the company was held liable for permitting property to be removed from a vault rented by it to the plaintiff, under color of legal process, which, in fact, did not authorize the officers of the law to seize the property. In another case,* ,15 the company agreed to "keep a constant and adequate guard over and upon the burglar-proof safe," and it was held that the mere disappearance of the plaintiff's bonds constituted a prima facie case against the company. The correctness of these decisions

42 Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57, 25 N. E. 294, 9 L. R. A. 438, 20 Am. St. Rep. 718; Schouler, Bailm. (2d Ed.) § 96; Lawson, Bailm. § 44. The relation was also held to be that of bailor and bailee in the following cases, both citing the Roberts Case: Mayer v. Brensinger, 180 Ill. 110, 54 N. E. 159, 72 Am. St. Rep. 196; Cussen v. Southern California Sav. Bank, 133 Cal. 534, 65 Pac. 1099, 85 Am. St. Rep. 221. See. also, Lockwood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68, 50 N. Y. Supp. 974, 72 Am. St. Rep. 206, note; Guaranty Trust Co. v. Diltz, 42 Tex. Civ. App. 26, 91 S. W. 596.

48 Gregg v. Hilson, 8 Phila. (Pa.) 91. Said Sharswood, J.: "The contents of the safe are in actual possession of the renter of the safe. They have not been deposited with or demised to the company." See, also, United States v. Graff, 67 Barb. (N. Y.) 304.

44 123 N. Y. 57, 25 N. E. 294, 9 L. R. A. 438, 20 Am. St. Rep. 718.

45 SAFE DEPOSIT CO. OF PITTSBURGH v. POLLOCK, 85 Pa. 391, 27 Am. Rep. 660, Dobie Cas. Bailments and Carriers, 101.