seems hardly open to question, but whether the transactions involved were bailments is quite another question.**

In view of the considerations mentioned, it seems that the relation in question is not that of bailor and bailee, nor that of landlord and tenant, nor yet that of master and servant, but is rather an anomalous combination of the three." The similarity between safe-deposit companies and bailees seems to lie in the fact that the former by express contract assume certain duties which, in the case of the latter, are imposed by law, when there is no express contract, as being implicit in the bailment relation.

It should be noted, though, that when (as is usually the case) ordinary care is the measure of the company's duty, either as arising from express contract or being implied from custom and usage, this term here involves a high measure of diligence and watchfulness.** This follows from the fact that the very nature of the business implies that the property in the drawers or boxes is usually of small bulk and comparatively great value, thus offering an unusual temptation to the most skilled criminals.

SAME-FACTORS OR COMMISSION MERCHANTS

The factor, or commission merchant, as he is frequently called, is one who makes a business of selling goods sent to him by others

46 In Jones v. Morgan, 90 N. Y. 4, 43 Am. Rep. 131, it appeared that plaintiff had rented a room in a storehouse from defendant, who contracted to guard it. The door to the room had two locks, the key of one of which was kept by plaintiff. The property was stolen from the room, and, in an action for damages, plaintiff contended that the defendant was a bailee, while the defendant claimed that the relation was that of landlord and tenant. The court said that the relation was one of bailment, though it was not necessary to a decision of the case. The case was likened to that of one who hires a box in a safe-deposit company. The defendant was held liable on his contract, irrespective of whether it created a bailment. In Peers v. Sampson, 4 Dowl. & R. (Eng.) 636, where a room was hired in which to store goods, the key being kept by the hirer, it was held that the owner of the house was not liable for a theft of the goods by his servant, on the ground that the goods had never been delivered to him for safe-keeping. See, also, East India Co. v. Pullen, 1 Strange (Eng.) 690.

47 See Van Zile, Bailm. & Carr. § 196: "It would appear that the relation is not that of bailor and bailee in the full meaning of that relation, but that it answers more nearly to that of landlord and tenant, or of leasing space in the deposit vault or banking house." Says Street (2 Found. Leg. Liab. p. 291): "It is clear that this is not a bailment. The company does not have possession, and there is no delivery. The liability of the company must therefore be determined entirely by the contract and usages of business incident to carrying it out."

48 See cases cited in preceding notes.

for that purpose." He differs from the broker, in that he has possession of the goods to be sold.50 Thus the factor is at the same time a bailee in possession of the goods," and also an agent authorized to make a binding sale of them to a third person. In his rôle of bailee, the factor is governed by the general principles of bailments, which here present in their application no unique difficulty. As an agent with a power of sale, the factor gives more trouble (both to judges and to those with whom he deals); but the questions raised here belong more properly to a work on Agency." Just as other bailees for mutual benefit, to which class the factor belongs by virtue of his commission, the factor is bound to use. good faith and ordinary care; but, if these be exercised, he is not responsible for either loss of, or damage to, the goods."

52

The factor is also in the favored class of bailees having a general lien. He can therefore hold the goods of his bailor in his possession to secure a general balance due to him from such bailor arising out of a series of factorage transactions."

SAME-OFFICERS CHARGED WITH THE CUSTODY OF PUBLIC FUNDS

Public officers, charged with the custody of public funds, fall within the definition of bailees for hire." In England these seem

49 Black, Law Dict. p. 476; Howland v. Woodruff, 60 N. Y. 80; In re Rabenau (D. C.) 118 Fed. 474; Ruffner v. Hewitt, 7 W. Va. 585. In some states factors are defined by statute. See, for example, Civ. Code Cal. § 2026.

50 Delafield v. Smith, 101 Wis. 664, 78 N. W. 170, 70 Am. St. Rep. 938; Edwards v. Hoeffinghoff (C. C.) 38 Fed. 641.

61 Substantially a warehouseman.

52 See Mechem on Agency, §§ 986a-1052.

58 Ives v. Freisinger, 70 N. J. Law, 257, 57 Atl. 401; Roberts v. Cobb, 76 Minn. 420, 79 N. W. 540; Weaver v. Poyer, 70 Ill. 567; Dunbar v. Gregg, 44 Ill. App. 527; Bogert v. Dorsey, 14 La. 430; Jervis v. Hoyt, 2 Hun (N. Y.) 637. They are at liberty to act according to the general usages of trade, and to give credit on sales, wherever that is customary. They are bound, however, in all cases, to follow the lawful instructions of their principals. If they act with reasonable diligence and good faith, they are protected. In cases of unforeseen emergency and necessity, they may even act contrary to the general tenor of the instructions of their principal, if those instructions are manifestly applicable to ordinary circumstances only. But good faith alone is not sufficient. There must be reasonable skill, and a careful obedience to orders, on their part.

54 Johnson v. Clark, 20 Ind. App. 247, 50 N. E. 762; Cator v. Merrill, 16 La. Ann. 137; Matthews v. Menedger, 2 McLean, 145, Fed. Cas. No. 9,289; Winne v. Hammond, 37 Ill. 99; Archer v. McMechan, 21 Mo. 43.

55 "They are nothing but bailees. To call them anything else, when they are expressly forbidden to touch or use the public money, except as directed,

to be held responsible only as bailees, and they are therefore not held liable for the loss of funds due to act of God or irresistible force." This view is also held in many of the states of this country."7

58

According, however, to the weight of authority in the United States, the public officer becomes an insurer of the safety of the public funds in his possession, and is thereby absolutely responsible for any loss, even though he is guilty of no fault or neglect." This absolute liability is based partly on considerations of public policy, and partly on the language of the officer's official bond. Some writers see in the theory of absolute liability a reversion to the primitive theory under which the bailee was liable as a debtor.50 Many of the more recent cases tend to soften the rigor of the doctrine of holding the public officer an insurer and adopt the saner English rule, holding the officer liable only for his negligence. 60 There are also statutes (both state 1 and federal 2) passed for the relief of officers in no wise negligent.

would be an abuse of terms." United States v. Thomas, 15 Wall. 347, 21 L. Ed. 89. See, also, Wilson v. People, 19 Colo. 199, 34 Pac. 944, 22 L. R. A. 449, 41 Am. St. Rep. 243; State v. Houston, 78 Ala. 576, 56 Am. Rep. 59; Marx v. Parker, 9 Wash. 473, 37 Pac. 675, 43 Am. St. Rep. 849; Story, Bailm. § 620; 2 Street, Found. Leg. Liab. pp. 292, 293. See, for an excellent note on the liability of public officers for loss of public money (with extensive collection of authorities), 17 Ann. Cas. 929.

56 Walker v. British Guarantee Ass'n, 18 Q. B. 277, 83 E. C. L. 277. 57 Wilson v. People, 19 Colo. 199, 34 Pac. 944, 22 L. R. A. 449, 41 Am. St. Rep. 243; Healdsburg v. Mulligan, 113 Cal. 205, 45 Pac. 337, 33 L. R. A. 461; INHABITANTS OF CUMBERLAND COUNTY v. PENNELL, 69 Me. 357, 31 Am. Rep. 284, Dobie Cas. Bailments and Carriers, 106; State v. Copeland, 96 Tenn. 296, 34 S. W. 427, 31 L. R. A. 844, 54 Am. St. Rep. 840; Roberts v. Board of Com'rs of Laramie County, 8 Wyo. 177, 56 Pac. 915.

58 The leading case is UNITED STATES v. PRESCOTT, 3 How. 578, 11 L. Ed. 734, Dobie Cas. Bailments and Carriers, 104, holding a receiver of public money liable who was robbed without any lack of care on his part; and any claim that the Thomas Case, 15 Wall. 337, 21 L. Ed. 89, had relaxed this rule was negatived in Smythe v. United States, 188 U. S. 156, 23 Sup. Ct. 279, 47 L. Ed. 425. See, also, State v. Wood, 51 Ark. 205, 10 S. W. 624; Town of Cicero v. Grisko, 240 Ill. 220, 88 N. E. 478; Inhabitants of Hancock v. Hazzard, 12 Cush. (Mass.) 112, 59 Am. Dec. 171; Tillinghast v. Merrill, 151 N. Y. 135, 45 N. E. 375, 34 L. R. A. 678, 56 Am. St. Rep. 612; Commonwealth v. Baily, 129 Pa. 480, 10 Atl. 764; Van Tress v. Territory, 7 Okl. 353, 54 Pac. 495.

59 2 Street, Found. Leg. Liab. p. 293, note 4.

Go See cases cited in note 57; also, State v. Houston, 78 Ala. 576, 56 Am. Rep. 59; York County v. Watson, 15 S. C. 1, 40 Am. Rep. 675; City of Living

61 See McSurely v. McGrew, 140 Iowa, 163, 118 N. W. 415, 132 Am. St. Rep. 248; Board of Education v. McLandsborough, 36 Ohio St. 227, 38 Am. Rep. 582.

62 See note 62 on following page.

TERMINATION OF THE BAILMENT

68. Locatio operis bailments may be terminated by—
(1) Act of the parties.

(a) Accomplishment of the bailment purpose.
(b) Mutual consent of bailor and bailee.

(c) Bailee's wrong, at option of bailor.

(2) Operation of law.

(a) Destruction of bailed goods.

Ordinarily, neither death nor change in the legal status of the parties terminates the bailment.

Act of the Parties

The termination of locatio operis under this head presents no difficulty, and what is said as to locatio rei applies equally here." It is equally true, here as there, that neither bailor nor bailee has a right to terminate the bailment without the consent of the other. Operation of Law

Here the analogies of locatio rei also apply. The destruction of the bailed goods necessarily terminates the bailment. The death of the bailor does not terminate the bailment, nor does the death of the bailee, unless the bailment is a personal one. It would also seem that neither the bankruptcy of the bailor nor that of the bailee would, of itself, terminate the bailment. The insanity of the bailor, it would seem, would not terminate the bailment any more than his death; nor would the insanity of the bailee, it seems, unless the bailment were personal.

ston v. Woods, 20 Mont. 91, 49 Pac. 437. Some cases seem to take a middle ground, and exempt the officer when the loss is due to act of God or public enemy. See Adams v. Lee, 72 Miss. 281, 16 South. 243; Thompson v. Board of Trustees of Township 16, 30 Ill. 99; Union Dist. Tp. v. Smith, 39 Iowa, 9, 18 Am. Rep. 39.

62 See Rev. St. §§ 1059, 1062, 2 Fed. St. Ann. pp. 59, 62, Act May 9, 1866, c. 75, §§ 1, 2, 14 Stat. 44 (U. S. Comp. St. 1901, pp. 734, 737); Judicial Code (Act March 3, 1911, c. 231) § 145 (3), 36 Stat. 1137 (U. S. Comp. St. Supp. 1911, p. 199), conferring jurisdiction on the Court of Claims to hear cases for relief of disbursing officers losing money without fault. See, also, United States v. Clark, 96 U. S. 37, 24 L. Ed. 696; Glenn's Case, 4 Ct. Cl. 501; Penrose v. United States, 42 Ct. Cl. 29.

63 Ante, § 56.

64 Ante, § 20.

REDELIVERY OF THE BAILED GOODS

69. As in other bailments, upon the termination of the bailment, the duty rests upon the bailee to redeliver the goods according to the directions of the bailor.

Redelivery by the bailee on the termination of a locatio operis bailment is governed by the principles applicable to other classes of bailments, which have already been sufficiently discussed."

* Ante, 19.