propriate action by which it may be protected, varies in different bailments, an accurate discussion of this subject must be left to the detailed treatment of the various specific classes of bailments.

ESTOPPEL OF BAILEE TO DENY BAILOR'S TITLE

14. The bailee is estopped, by virtue of the bailment, from denying the title of the bailor at the time of the delivery of the goods to the bailee.

The bailee is not permitted to dispute the bailor's title, at the time of the delivery of the goods to him, by setting up in himself an adverse title to the goods as of that time." The possession of the bailee was acquired from the bailor, and by thus assuming possession of the goods the bailee estops himself from setting up that he had title to the goods when he received them from the

55 Plummer v. Hardison, 6 Ala. App. 525, 60 South. 502; Britton v. Aymar, 23 La. Ann. 63, 65; Peebles v. Farrar, 73 N. C. 342; Foltz v. Stevens, 54 Ill. 180; Maxwell v. Houston, 67 N. C. 305; Thompson v. Williams, 30 Kan. 114, 1 Pac. 47; Marvin v. Ellwood, 11 Paige (N. Y.) 365. Where one borrows property, without alleging any right to it, he is estopped from setting up a claim to it on behalf of his wife. Pulliam v. Burlingame, 81 Mo. 111, 51 Am. Rep. 229. See, also, Hentz v. The Idaho, 93 U. S. 575, 23 L. Ed. 978; Osgood v. Nichols, 5 Gray (Mass.) 420; Thompson v. Williams, 30 Kan. 114, 1 Pac. 47; Tribble v. Anderson, 63 Ga. 31; Shellhouse v. Field, 49 Ind. App. 659, 97 N. E. 940. For extended note on this subject, see 19 Ann. Cas. 521. The bailee sued by the bailor for conversion of the property cannot set up title of a third person thereto, except by autherization of that person. Bondy v. American Transfer Co., 15 Cal. App. 746, 115 Pac. 965. Where plaintiff acquired possession of a mileage book from defendant for the purpose of riding thereon, agreeing to return the balance of the mileage, plaintiff was estopped to deny his obligation to return the book to defendant because defendant was not the original purchaser, who was alone entitled to use the book for transportation. Cook v. Bartlett, 115 App. Div. 829, 100 N. Y. Supp. 1032. By the acceptance of a bailment the bailee admits the title of his bailor, and is estopped thereafter from disputing it. Atlantic & B. R. Co. v. Spires, 1 Ga. App. 22, 57 S. E. 973. In an action against a bailee for conversion, defendant is estopped from denying the title of his bailors, no paramount title having intervened. Barker v. S. A. Lewis Storage & Transfer Co., 79 Conn. 342, 65 Atl. 143, 118 Am. St. Rep. 141. A bailee is estopped to deny the bailor's title or ownership of the property bailed at the time of bailment, but is not estopped, when sued for conversion, from showing that the title held by the bailor at the time of bailment has been acquired by himself, or has passed to another. Shellhouse v. Field, 49 Ind. App. 659, 97 N. E. 940. While a bailee can in no case set up a claim in himself to the goods as against the bailor when the goods are claimed by a third person, he may refuse to deliver them at his peril. Atlantic & B. R. Co. v. Spires, 1 Ga. App. 22, 57 S. E. 973.

bailor. The bailee's very act of accepting possession from the bailor is in itself an admission of the bailor's title, which the bailee would not be permitted, while still holding possession, to deny by asserting title in himself.

A bailee may show, however, that, since the goods were delivered to him, the bailor has sold them to another. On a valid sale by the bailor, when the bailee has notice of the sale, the bailee must account to the buyer.56 The rule that a bailee cannot attorn to a stranger has no application to such a case; the purchaser from the bailor is not a stranger. The estoppel extends only to a denial by the bailee that the bailor had title at the time he delivered the goods to the bailee. So, when a person borrowed a gun from another, thus becoming a bailee, and then such person afterwards refused to return the gun, claiming that it belonged to him when he borrowed it, it was held that such person, as a bailee, must first return the gun to his bailor before he could claim title to the gun in himself at the time the bailment was created."

One claiming title to a chattel held by another cannot obtain possession of it under the guise of a bailment and then excuse himself from returning it by repudiating the bailment by virtue of which he acquired his possession and by setting up a hostile title to the chattel in himself. Having acquired his possession solely in the rôle of a bailee, he must continue in that rôle, and, as the rôle requires, surrender possession of the chattel to the bailor.

This estoppel is limited in time to the moment when the goods were delivered to the bailee.58 Thus, though the bailee cannot claim that he was then the owner of the goods, he can claim that he acquired the ownership of the goods by virtue of a transfer by the bailor of such ownership to him at a period subsequent to the creation of the bailment; for this claim, instead of repudiating the bailor's title at the creation of the bailment, affirms that the bailor

56 Roberts v. Noyes, 76 Me. 590; Marvin v. Ellwood, 11 Paige (N. Y.) 365; Smith v. Hammond, 6 Sim. 10; National Exch. Bank of Boston v. McLoon, 73 Me. 498, 40 Am. Rep. 388.

57 SIMPSON v. WRENN, 50 Ill. 222, 99 Am. Dec. 511, Dobie Cas. Bailments and Carriers, 22. And see Bursley v. Hamilton, 15 Pick. (Mass.) 40, 25 Am. Dec. 423, where it was held that an owner of property giving a receipt for it to an officer who had seized it under process could not set up title in himself when sued by the officer without first restoring the property to the officer. Contra, Learned v. Bryant, 13 Mass. 224. It is said that a purchaser from the bailor has the same right as the bailor to assert the estoppel against the bailee.

58 Roberts v. Noyes, 76 Me. 590; Burnett v. Fulton, 48 N. C. 486; Kingsman ▼. Kingsman (Eng.) 6 Q. B. D. 122; Marvin v. Ellwood, 11 Paige (N. Y.) 365.

had title even subsequent to this time, which title the bailee claims was transferred to him by the bailor.50

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Again, the bailee may, of course, claim his full rights as a bailee against the bailor. When he has a special property in the goods, he may sue the bailor, and recover his possession of the goods, wrongly interrupted by the bailor. The estoppel applies only when the bailee seeks to claim an interest beyond that of a bailee, as that of owner. In asserting his rights as the bailor's bailee, the bailee, instead of denying, is affirming the bailment and the fullest right of the bailor to create it.

Finally, in this connection, while the bailee cannot set up title for himself at the time of the inception of the bailment, he must, at his peril, respect the rights of third persons superior to those of his bailor. As we shall see, the bailee is an insurer as to delivery of the goods to the right person. Accordingly, when he has notice of the paramount claim of a third person, the bailee must deliver the goods to him and not to the bailor. Thus the estoppel, as of the time of the beginning of the bailment, is limited to the bailee's setting up title in himself adverse to the bailor; the estoppel does not apply, as of the same time, to the bailee's respecting, as he must, the paramount title of the third party brought to his notice. There is no inconsistency between the rule that the bailee, having received possession from the bailor, cannot retain the possession thus gained by repudiating its source, and the rule that the. adverse claimant or third party, as the real owner of the chattel, can disregard an unauthorized bailment as not being binding on him and can seize the chattel in the hands of the bailee.

59 The bailee cannot, however, during the continuance of the bailment purchase the adverse outstanding title of a third person, and then set up such title before surrendering possession of the goods to the bailor. Nudd v. Montanye, 38 Wis. 511, 20 Am. Rep. 25.

60 SIMPSON v. WRENN, 50 Ill. 222, 99 Am. Dec. 511, Dobie Cas. Bailments and Carriers, 22; BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84.

61 Hentz v. The, Idaho, 93 U. S. 575, 23 L. Ed. 978; Mullins v. Chickering, 110 N. Y. 513, 18 N. E. 377, 1 L. R. A. 463; DAVIS v. DONOHOE-KELLY BANKING CO., 152 Cal. 282, 92 Pac. 639, Dobie Cas. Bailments, and Carriers, 29; Atlantic & B. R. Co. v. Spires, 1 Ga. App. 22, 57 S. E. 973; Kelly v. Patchell, 5 W. Va. 585; Thompson v. Williams, 30 Kan. 114, 1 Pac. 47.

BAILOR MUST NOT EXPOSE BAILEE TO DANGER WITHOUT WARNING

15. It is the duty of the bailor to warn the bailee of any hidden defects in the articles bailed or any latent danger attendant upon the execution of the bailment, provided the bailor knows, or should have known, of such defect or danger.

The law places upon the bailor the duty of warning the bailee of any hidden defects in the bailed goods, or any latent danger involved in the bailment purpose, provided actual or constructive knowledge of such defect or danger can be attributed to the bailor. The bailor must not knowingly expose the bailee without warning to dangers or perils of which the latter is ignorant. Thus, if the bailor of a horse, knowing the horse to be wild and vicious, fails to inform an ignorant bailee of this fact, the bailor is liable. in damages to the bailee for injuries sustained by the bailee as a result of this dereliction of duty."

It is sometimes said that the bailor is liable to the bailee for all damages sustained by the latter, without fault on his part, the proximate cause of which was the performance of the bailment purpose. This, however, is much too broad. No such liability is imposed on the bailor by the bailment contract, in the absence of a special stipulation. Nor does the law impose any such responsibility as inherent in the bailment relation. If the danger was clear to both parties, it is assumed by the bailee in undertaking the bailment. The same would be true if the bailee alone knew of the danger. If the danger was not known to the bailor, and there was no fault on his part in not knowing it, he incurs no such responsibility.

Accordingly, in the absence of knowledge, actual or constructive, of the defect or danger, the bailor incurs no responsibility for damages suffered by the bailee in executing the bailment." The law is reasonable in not imposing upon the bailor the duty of disclosing

82 Story, Bailm. §§ 390-391a; Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699; Horne v. Meakin, 115 Mass. 326; Reading v. Price, 3 J. J. Marsh. (Ky.) 61, 19 Am. Dec. 162; Kissam v. Jones, 56 Hun, 432, 10 N. Y. Supp. 94.

68 Story, Bailm. § 391a; Campbell v. Page, 67 Barb. (N. Y.) 113; Huntoon v. Trumbell (C. C.) 12 Fed. 844; Kissam v. Jones, 56 Hun, 432, 10 N. Y. Supp. 94. For note on liability of owner of vicious animals to disclose such propensities to bailee, see 18 Ann. Cas. 814.

64 COPELAND v. DRAPER, 157 Mass. 558, 32 N. E. 944, 19 L. R. A. 283, and note, 34 Am. St. Rep. 314, Dobie Cas. Bailments and Carriers, 25.

what he neither knows nor should know. In the absence, then, of a breach of duty, or a contract specially imposing liability on the bailor for damages resulting from the carrying out of the bailment purpose, what legal reason is there, or what consideration of public policy, for imposing on the bailor the unusual responsibility involved in the broad rule given above?

Hence, if neither party knows nor ought to know, there is no liability on the bailor. The same result follows when both parties know or ought to know, or when this is true of the bailee alone. The legal duty of disclosure, for a breach of which he is responsible, rests on the bailor only when he knows or ought to know, and the bailee neither knows nor ought to know.

CARE TO BE EXERCISED BY THE BAILEE

16. In performing the bailment purpose, the bailee must exercise due care, or that degree of care which is determined by, and commensurate with, the particular class to which the specific bailment belongs.

The degree of care which the bailee must exercise is, from a practical standpoint, by far the most important of the duties imposed by the law upon the bailee. In practice, the question is always considered in connection with the class of bailments under which the particular bailment falls. The subject is therefore discussed at some length under each class of bailments considered; but a brief discussion of some of the basic principles underlying the whole subject will not be out of order here.

When the point is not covered by a stipulation in the bailment contract the law imposes on the bailee in all ordinary bailments. (as distinguished from extraordinary bailments) the duty of exercising due care. As due care is too indefinite, the law goes further and, in each of the three great classes of bailments classified in the score of benefit, sets up a more definite standard of care as applicable only to bailments of that class. When the class to which the particular bailment belongs is determined, the standard of care applicable to that class is fixed, and the question then asked is whether the bailee has fulfilled the duty imposed on him. by law and exercised that particular degree of care. If the ques

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65 2 Jagg. Torts, 88; Hall v. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239; Meredith v. Reed, 26 Ind. 334; Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Pennsylvania