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.

tive duty upon a person does not necessarily mean that he agrees to perform that duty. An obligation is hardly contractual when imposed without the consent of the parties. It therefore seems a perversion of language to say, in cases such as that indicated, that a bailment is always the result of a contract.

Acceptance by the Bailee

There must, however, be an acceptance by the bailee of the goods forming the subject-matter of the bailment, before there can be any bailment. The law does not insistently thrust the liabilities of a bailee upon one without his knowledge or consent. Such acceptance may be express or implied, but until there is something to show notice or knowledge, until the facts, at least, are known by the person, the law will not constitute him a bailee."

43

Thus, where goods come into one's possession without his knowledge, he is in no sense a bailee; but if, after acquiring such knowledge, he continues in possession of the goods, the law imposes on him the duties of a bailee in regard to such goods. Accordingly, when a man puts goods in the wagon of another, and the latter drives away, in ignorance of the presence of the goods on his wagon, he is not a bailee of such goods, nor responsible as such. As soon, though, as he discovers the goods, by continuing in possession of them he becomes, in the eyes of the law, a bailee, with the attendant responsibility of a bailee imposed upon him. Again, one seeing a lost watch in the road may pass it by without incurring any responsibility, but by voluntarily taking the watch into his possession, he becomes chargeable as a bailee.""

One is not made a bailee against his will or without his consent. Such consent, however, is easily implied when, with his knowledge, the goods of another come into his possession. Indeed, it may be laid down as a general rule that whenever a person knowingly acquires possession of goods, unaccompanied by any right of owner

42 Bohannon v. Springfield, 9 Ala. 789; Delaware, L. & W. R. Co. v. Central S. Y. & T. Co., 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855; Lloyd v. West Branch Bank, 15 Pa. 172, 53 Am. Dec. 581; Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St. Rep. 519.

43 Where goods are placed in a carrier's possession without his knowledge or consent, there can be no contract of bailment. Where one checked his trunk on a railway as baggage, paying no compensation therefor except his fare as a passenger, and giving no notice that it contained valuable and costly merchandise, it was held that the want of fair dealing on his part was a full answer to any action upon any implied contract of bailment for hire. Michigan Cent. R. Co. v. Carrow, 73 Ill. 348, 24 Am. Rep. 248. See, also, Sherman ▼ Hicks, 14 N. M. 439, 94 Pac. 959; Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943.

44 See note 38, supra.

ship, such acquiring of possession is equivalent to an implied consent, and the law will impose upon such person in possession of the goods the liabilities of a bailee."

WHAT TITLE BAILOR MUST HAVE

12. If the bailor has a special property in, or even lawful possession of, the goods, this is sufficient title to support the bail

ment.

In order that one may make a valid bailment of a thing, it is not essential that he shall be the owner of it. If the bailor has what is known as a special property in goods, or even lawful possession thereof, this is sufficient. For a bailment requires the transfer, not of ownership, but merely of possession. Accordingly, to create a bailment, it is necessary only that the bailor have a possession that he can transfer to the bailee.

Thus, the finder of lost goods does not, by such finding, acquire the ownership of such goods, yet he has such a possessory right as will enable him to keep the goods as against all but the rightful owner, and the finder may make, subject to the rights of the owner, a valid bailment of the goods. One holding goods without title and wrongfully may make a bailment of them, valid save as against the real owner, and as between the bailor and bailee the rights and duties of the bailment relation would attach; or, as against all but the owner, even a thief may make a bailment of stolen goods, and, since the bailee is estopped to deny his bailor's title, the bailee would, as between the bailor and bailee, be compelled to restore the goods to his bailor, the thief.

47

45 Schouler, Bailm. (2d Ed.) § 3; Wolf v. Shannon, 50 Ill. App. 396; Jones v. Maxwell, 1 Lack. Leg. N. (Pa.) 191.

46 Thus, in the case of Armory v. Delamirie, 1 Strange, 505, it appeared that a boy found a jewel, and took it to a jeweler's shop, to find what it

was.

The jeweler refused to return the jewel, and, in an action in trover, it was held that the finder of a chattel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently he may maintain trover. And see Rooth v. Wilson, 1 Barn. & Ald. 59. The finder of a bank note, as against a bailee to whom he delivers it, has such a possessory interest in the note as entitles him to recover it from the bailee, in the absence of any claim by the rightful owner. Tancil v. Seaton, 28 Grat. (Va.) 601, 26 Am. Rep. 380.

47 Taylor v. Plumer, 3 Maule & S. (Eng.) 562; Learned v. Bryant, 13 Mass.

INTEREST OF BAILOR AND BAILEE IN THE
BAILED GOODS

13. The general property or ownership in the bailed goods remains in the bailor, while the bailee acquires at least a possessory interest, and in many cases a special property, in such goods.

Bailor's Interest

A bailment is a transfer of possession unaccompanied by ownership. The person owning the goods before the bailment therefore continues to own them afterwards. Since the ownership of the goods remains unaffected by the bailment, the bailor, if he was, as is usually the case, the owner of the goods, continues to bear that relation toward them.48 Indeed, as we have already seen, particularly in distinguishing a bailment from a sale, the severance of ownership and possession is of the very essence of the bailment. This ownership is an independent property right which the bailor, even without the bailee's consent, may freely. transfer to a third person. Such third person, however, would acquire the ownership, just as the bailor held it, subject to all the rights of the bailee. This ownership of the bailor is, of course, unaffected by any wrongful disposal of the goods by the bailee. to a third person.50 For the bailor could, in such a case, assert his ownership against the third person with as much force as he could against the bailee. This ownership, consisting of the residuary right in the goods remaining after the rights of the bailee are

48 Story, Bailm. § 93; Henry v. Patterson, 57 Pa. 346, 352; Prichett v. Cook, 62 Pa. 193; Laflin & R. Powder Co. v. Burkhardt, 97 U. S. 110, 24 L. Ed. 973. 49 And notice to the bailee of such transfer of title is a sufficient constructive delivery to hold the property as against attaching creditors of the bailor, or one claiming as a bona fide purchaser. Erwin v. Arthur, 61 Mo. 386; Gerber v. Monie, 56 Barb. (N. Y.) 652. Thus, where the owner of a lot of cotton in the hands of the surveyor of a port, seized by him, to await an examination in regard to charges, sold the same, and gave his vendee an order on the surveyor for the cotton, and also notified the surveyor of such sale, it was held that such action on the part of the vendor passed all his rights to his vendee, who could maintain an action of replevin for the cotton, as against a subsequent attaching creditor of his vendor, whether the surveyor had consented or not to the delivery, after the termination of his own right of possession. Hodges v. Hurd, 47 Ill. 363.

50 Benner v. Puffer, 114 Mass. 376; Austin v. Dye, 46 N. Y. 500; Davis v. Bigler, 62 Pa. 242, 1 Am. Rep. 393; Baehr v. Clark, 83 Iowa, 313, 49 N. W. 840, 13 L. R. A. 717.

satisfied, the bailor may also protect by appropriate action, when it is wrongfully interfered with either by the bailee or by third parties. 51

Bailee's Interest

The bailee acquires, by virtue of the bailment, an interest in the goods bailed that amounts at least to a possessory right or interest. In many cases, the bailee's interest rises to the dignity of a special property in the goods, which is a right against the goods, an in rem claim, which he can assert as against all the world, including the bailor.58

Even when the bailee's interest is only a mere possessory right, this constitutes what is known in fire insurance as an insurable interest upon which a valid policy may be taken out. The bailee, too, can protect by appropriate action his interest against wrongful interference.54 As the nature of this interest, as well as the ap

51 Strong v. Adams, 30 Vt. 221, 73 Am. Dec. 305. And see BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84; Root v. Chandler, 10 Wend. (N. Y.) 110, 25 Am. Dec. 546; Cannon v. Kinney, 3 Scam. (Ill.) 9; Long v. Bledsoe, 3 J. J. Marsh, (Ky.) 307; Overby v. McGee, 15 Ark. 459, 63 Am. Dec. 49; Walker v. Wilkinson, 35 Ala. 725, 76 Am. Dec. 315; White v. Brantley, 37 Ala. 430; Lotan v. Cross, 2 Camp. 464. Where the bailor is entitled to possession at any time, he may maintain trespass against a third person for injury to the bailed property. Walcot v. Pomeroy, 2 Pick. (Mass.) 121; Bradley v. Davis, 14 Me. 44, 47, 30 Am. Dec. 729; Dallam v. Fitler, 6 Watts & S. (Pa.) 323, 325; Staples v. Smith, 48 Me. 470; Hart v. Hyde, 5 Vt. 328; Freeman v. Rankins, 21 Me. 446; Gauche v. Mayer, 27 Ill. 134; Shloss v. Cooper, 27 Vt. 623; Hayward Rubber Co. v. Duncklee, 30 Vt. 29; Holly v. Huggeford, 8 Pick. (Mass.) 73, 19 Am. Dec. 303. See post, §§ 28, 39, 48, 61. But, when the bailment is for a definite time, the bailor cannot maintain trespass, because he has no right to possession until the expiration of such period. Walcot v. Pomeroy, 2 Pick. (Mass.) 121, 122; Muggridge v. Eveleth, 9 Metc. (Mass.) 233; Lunt v. Brown, 13 Me. 236; Lewis v. Carsaw, 15 Pa. 31; Hume v. Tufts, 6 Blackf. (Ind.) 136; Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346; Bell v. Monahan, Dud. (S. C.) 38, 31 Am. Dec. 548; McFarland v. Smith, Walk. (Miss.) 172; Lacoste v. Pipkin, 13 Smedes & M. (Miss.) 589; Soper v. Sumner, 5 Vt. 274; Clark v. Carlton, 1 N. H. 110; WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Carriers, 85; Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230; Ward v. McCauley, 4 Term R. 489.

52 Smith v. Jones, 8 Ark. 109; COMMONWEALTH v. MORSE, 14 Mass. 217, Dobie Cas. Bailments and Carriers, 51; Sibley v. Story, 8 Vt. 15.

58 The question of when the bailee has a mere possessory interest in the bailed chattels and when a special property is discussed in detail as to the various classes of bailments.

54 Shaw v. Kaler, 106 Mass. 448; Hopper v. Miller, 76 N. C. 402; Knight v. Davis Carriage Co., 71 Fed. 662, 18 C. C. A. 287; CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Dobie Cas. Bailments and Carriers, 59; Walsh v. United States Tent & Awning Co., 153 Ill. App. 229.