BAILMENT OF PERSONALTY ONLY

9. The subject-matter of the bailment must be personalty.

Personal property alone can be the subject-matter of a bailment. There can be no bailment of real estate.20 The relation, in the realm of real property, corresponding to that of bailment in personal property, is that of landlord and tenant, created by a lease; but, owing to striking differences between real and personal property, the two relations present many differences in legal effect.

There are expressions in some of the early cases to the effect that only corporeal personal property could be the subject-matter of a bailment. It is now well settled, however, that there may be a bailment of incorporeal as well as corporeal personalty, of choses in action as well as of choses in possession.27 Thus there may be a bailment of negotiable notes, bonds, corporate stock, and insurance policies, as well as of horses, watches, or furniture.28

Since a bailment requires first a delivery of the goods to the bailee, there can be, technically speaking, no such thing as a bailment of goods not yet in existence.29 There may be, however, a valid present contract to create a future bailment in goods not then in existence. The bailment relation might then attach to the goods when they did come into existence,30 subject, perhaps, to the rights of third persons in the goods which may have intervened.

26 A bailment can exist only as to a chattel, not as to realty. Williams v. Jones, 3 Hurl. & C. 256; Coupledike v. Coupledike, Cro. Jac. 39. And cf. Dewey v. Bowman, 8 Cal. 145.

27 McLean v. Walker, 10 Johns. (N. Y.) 471; Jarvis v. Rogers, 15 Mass. 389; White v. Phelps, 14 Minn. 27 (Gil. 21), 100 Am. Dec. 190; Appleton v. Donaldson, 3 Pa. 381; Loomis v. Stave, 72 Ill. 623; Cowdrey v. Vandenburgh, 101 U. S. 572, 25 L. Ed. 923. Any kind of personal property, including current money and even a chose in action, if in existence, may be the subject of a bailment. Van Wagoner v. Buckley, 148 App. Div. 808, 133 N. Y. Supp. 599.

28 Hanna v. Holton, 78 Pa. 334, 21 Am. Rep. 20; Walker v. Staples, 5 Allen (Mass.) 34; Shaw v. Wilshire, 65 Me. 485; Hudson v. Wilkinson, 45 Tex. 444; In re Rawson, 2 Low. 519, Fed. Cas. No. 4,837; Biebinger v. Continental Bank, 99 U. S. 143, 25 L. Ed. 271. Bailments of such property are usually pledges and will be discussed at length under that subject. Post, p. 187.

29 Gittings v. Nelson, 86 Ill. 591; Smithurst v. Edmunds, 14 N. J. Eq. 408. 80 Story, Bailm. § 294. Thus, in Macomber v. Parker, 14 Pick. (Mass.) 497, a brickmaker agreed with the lessees of a brickyard in which he was manufacturing bricks that they should hold the bricks to be made as security for money advanced by them. It was held that the bricks were pledged as fast as made. See, also, Cushman v. Hayes, 46 Ill. 145; Smithurst v. Edmunds, 14 N. J. Eq. 408; Appeal of Collins, 107 Pa. 590, 52 Am. Rep. 479; Smith v. Atkins, 18 Vt. 461.

DELIVERY

10. To constitute a bailment, there must be a delivery, actual or constructive, of the goods or chattels.

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The term "bailment" is derived from the Norman-French word "bailler," meaning to deliver. Though not every delivery creates a bailment, yet delivery remains the most important element both in the definition and in the practical aspect of a bailment. Delivery, or transfer of possession, is absolutely essential to the creation of the bailment. Where there is no delivery, there can be no bailment. Delivery, therefore, marks the real inception of the bailment, which begins from the time when possession is transferred to the bailee. Accordingly, a mere executory contract to deliver goods, technically speaking, is alone no more effective in creating a bailment than is a mere agreement to marry in creating the marriage. Delivery thus is seen as more vivid and more real than any other aspect of the bailment.

Delivery may be either actual or constructive. Actual delivery contemplates the real physical transfer of the manual control of the goods or chattels by the bailor to the bailee.32 Thus, where one places his razor in the hands of a barber to be sharpened and returned to him, this is an actual delivery about which there could be little question. A constructive delivery, in its broad sense, consists of such acts which, though falling short of actual delivery, are held, in the contemplation of the law, to be the equivalent of an actual delivery in legal effect.33 Thus, when goods have been shipped by a carrier, the transfer of the document known as a "bill of lading," which stands for the goods, and is therefore legally equivalent to an actual delivery of the goods, is a constructive de

81 Trunick v. Smith, 63 Pa. 18; Houghton v. Lynch, 13 Minn. 85 (Gil. 80); Sherman v. Commercial Printing Co., 29 Mo. App. 31; Northcutt v. State, 60 Tex. Cr. R. 259, 131 S. W. 1128, 31 L. R. A. (N. S.) 822; Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943; Sherman v. Hicks, 14 N. M. 439, 94 Pac. 959.

82 Owens v. Kinsey, 52 N. C. 245; Fletcher v. Ingram, 46 Wis. 191, 50 N. W. 424; Samuels v. McDonald, 33 N. Y. Super. Ct. 211.

33 Story, Bailm. § 55; Whitaker v. Sumner, 20 Pick. (Mass.) 399; Tuxworth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479. The property may be regarded as in bailee's possession, without any actual removal, if it passes under bailee's exclusive control. Dillenback v. Jerome, 7 Cow. (N. Y.) 294; Blake v. Kimball, 106 Mass. 115. See, also, Schneider v. Dayton, 111 Mich. 396, 69 N. W.

livery. So, also, when the seller of goods continues in possession of them with the buyer's consent, this is a constructive delivery, and is just as effective in making the seller a bailee as if the seller had actually delivered the goods to the buyer, who, in turn, actually redelivered them to the seller.35

Actual delivery is, of course, the most perfect form known to the law, and is always the safest. But such a delivery is in many cases either impossible or at least impracticable. In such cases constructive delivery is frequently resorted to. Modern decisions show an increasing tendency to regard constructive delivery with favor and to extend its meaning, particularly when the rights of innocent third parties are not thereby jeopardized. The always prominent question of delivery becomes specially important in pledges, where it is treated, particularly as to certain classes of incorporeal property, at some length.

The control which a servant exercises over the goods of his master, with the latter's consent, does not make the servant a bailee of the goods. The master is here treated as being still in possession of the goods, and the servant's control, falling short of an independent possession, is designated as mere custody. Thus, a butler cleaning his master's silver has merely the custody of the silver, possession still remaining in the master. The question whether a person exercising a measure of control over the goods of another, is a bailee having possession or a servant with mere custody becomes highly important in distinguishing between the commonlaw crime of larceny and the statutory crime of embezzlement.

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ACCEPTANCE

11. A great majority of bailments (though not all) are created by mutual contract of the parties. In every bailment, though, there must be an express or implied acceptance by the bailee of the goods constituting the subject-matter of the bailment,

84 Post, pp. 196, 211-214, 418. 85 Oakley v. State, 40 Ala. 372.

36 See Clark & Marshall on Crimes, §§ 316-317; Rex v. Harvey, 9 Car. & P. 353; Jenkins v. State, 62 Wis. 49, 21 N. W. 232; United States v. Clew, 4 Wash. C. C. 700, Fed. Cas. No. 14819. One holding as servant for another is not bailee. COMMONWEALTH v. MORSE, 14 Mass. 217, Dobie Cas. Bailments and Carriers, 51; Dillenback v. Jerome, 7 Cow. (N. Y.) 294; Ludden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45; Warren v. Leland, 9 Mass. 265; Waterman v. Robinson, 5 Mass. 303.

Bailment Not Always Created by Contract

While in the overwhelming majority of instances the bailment relation is founded on the mutual agreement of both the bailor and bailee, in exceptional cases bailments may exist without such an agreement. One may become a constructive bailee in the absence of any contract between the parties. It is not essential that the bailee should have obtained possession by the consent of the owner, or even with the intention of holding the goods as a bailee. But, in many cases, the law, from considerations of public policy, imposes the liability of a bailee upon one who has, without private agreement, come into possession of the goods of another.

38

Thus, the finder of lost goods, who takes them into his possession, becomes a bailee of the goods. A sheriff, levying on the goods of the debtor and taking possession of them, is also a bailee."" The same would be true of marine salvors of goods, and also of one who received and retained possession of goods addressed to another. Many writers, in such instances, say that the consent of the parties is implied and that there is thus a contract. The owner might well prefer that the goods should remain lost rather than that they should come into the hands of the particular person who found them. The finder, too, may have been in ignorance of the fact that he had incurred the duties of a bailee. To say that the law, under certain circumstances, imposes an affirma

87 Post, §§ 22, 45. A contract inter partes is not essential to a bailment; but it is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment. Burns v. State, 145 Wis. 373, 128 N. W. 987, 140 Am. St. Rep. 1081.

38 One who finds a thing is not compelled to assume its custody; but, if he voluntarily does so, he will be held by the law to be a depositary, and must exercise the care due from such a bailee. In Cory v. Little, 6 N. H. 213, 25 Am. Dec. 458, it was held that one who finds a horse wrongfully in his field may turn it into the highway; and, if it stray away, he will not be responsible for it. In Isaack v. Clark, 2 Bulst. 306, Lord Coke said: "If a man finds goods, an action on the case lies for his ill and negligent keeping of them, but not trover or conversion, because this is but a nonfeasance." According to St. Germain (Doct. & Stud. Dial. 2, c. 38), “if a man finds goods of another, if they be after hurt or lost by willful negligence, he shall be charged to the owner. But, if they be lost by other casualty, • I think he be discharged." As to this point, see Dougherty v. Posegate, 3 Iowa, 88; Merry v. Green, 7 Mees. & W. 623, 631; People v. Cogdell, 1 Hill (N. Y.) 94, 37 Am. Dec. 297; People v. Anderson, 14 Johns. (N. Y.) 294, 7 Am. Dec. 462. 39 Phillips v. Bridge, 11 Mass. 242; Tyler v. Ulmer, 12 Mass. 163; Blake v. Kimball, 106 Mass. 115, 116; Parrott v. Dearborn, 104 Mass. 104; Jenner v. Joliffe, 6 Johns. (N. Y.) 9; Burke v. Trevitt, 1 Mason, 96, 100, Fed. Cas. No. 2,163.

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livery. So, also, when the seller of goods continues in possession of them with the buyer's consent, this is a constructive delivery, and is just as effective in making the seller a bailee as if the seller had actually delivered the goods to the buyer, who, in turn, actually redelivered them to the seller."

Actual delivery is, of course, the most perfect form known to the law, and is always the safest. But such a delivery is in many cases either impossible or at least impracticable. In such cases constructive delivery is frequently resorted to. Modern decisions show an increasing tendency to regard constructive delivery with favor and to extend its meaning, particularly when the rights of innocent third parties are not thereby jeopardized. The always prominent question of delivery becomes specially important in pledges, where it is treated, particularly as to certain classes of incorporeal property, at some length.

The control which a servant exercises over the goods of his master, with the latter's consent, does not make the servant a bailee of the goods. The master is here treated as being still in possession of the goods, and the servant's control, falling short of an independent possession, is designated as mere custody. Thus, a butler cleaning his master's silver has merely the custody of the silver, possession still remaining in the master. The question whether a person exercising a measure of control over the goods of another, is a bailee having possession or a servant with mere custody becomes highly important in distinguishing between the commonlaw crime of larceny and the statutory crime of embezzlement."

ACCEPTANCE

11. A great majority of bailments (though not all) are created by mutual contract of the parties. In every bailment, though, there must be an express or implied acceptance by the bailee of the goods constituting the subject-matter of the bailment.

84 Post, pp. 196, 211-214, 418. 85 Oakley v. State, 40 Ala. 372.

36 See Clark & Marshall on Crimes, §§ 316-317; Rex v. Harvey, 9 Car. & P. 353; Jenkins v. State, 62 Wis. 49, 21 N. W. 232; United States v. Clew, 4 Wash. C. C. 700, Fed. Cas. No. 14819. One holding as servant for another is not bailee. COMMONWEALTH v. MORSE, 14 Mass. 217, Dobie Cas. Bailments and Carriers, 51; Dillenback v. Jerome, 7 Cow. (N. Y.) 294; Ludden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45; Warren v. Leland, 9 Mass. 265; Waterman v. Robinson, 5 Mass. 303.