(who lived during the last half of the sixteenth and the first half of the seventeenth centuries), in his Institutes, devotes some space to the liability of the bailee, but his treatment was far from satisfactory.

The first real attempt, however, at reducing the law of bailments in English jurisprudence to some degree of order was made by Lord Holt in the celebrated case of COGGS v. BERNARD, decided in 1703. Though the only real point in issue in this case was the liability of a gratuitous bailee specially undertaking the accomplishment of a certain purpose, yet the endeavors of this great judge to give some definite shape and order to a subject whose future importance he saw served to lay the groundwork for, and give a great impetus to, future investigation and research. COGGS v. BERNARD is therefore, considered from a historical standpoint, the leading case on bailments in our jurisprudence.

9

It was largely due to the labors of Sir William Jones, in the latter half of the eighteenth century, that the subject began first to take definite form, and it is upon his "Essay" that all subsequent works upon bailments have been founded. The treatise of Mr. Justice Story,10 though, was the first logical and reliable exposition of the modern law of bailments in the form in which it now substantially exists. To Lord Holt, Sir William Jones, and Mr. Justice Story, then, is largely due the state in which we now find the law of bailments, and upon their work every subsequent writer must draw heavily in his treatment of the same subject.

In modern times, the bailment has become, not a mere incidental, personal transaction, but one of tremendous commercial import, and the law of bailments has been developed accordingly, until it is now in practical importance one of the leading subjects in our law. With the increase of commerce and the changed conditions of our marvelously complex life, both in its social and commercial aspects, the law of bailments must and will keep pace.

(1703) COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 1 Smith, Lead. Cas. (7th Am. Ed.) 369, Dobie Cas. Bailments and Carriers, 1. Among the most interesting cases prior to COGGS v. BERNARD are Bonion's Case (1315) Y. B. 8 Edw. II, 275, Fitz. Abr. Detinue, pl. 59; Woodlife's Case (1596) Moore, 462, Owen, 57; the celebrated Southcote's Case (1601) Cro. Eliz. 815, 4 Coke, 836; 2 Bl. Comm. 452; and Williams v. Hide (1628) Palmer, 548, W. Jones, 179.

• Jones, Bailm. (1781). 10 Story, Bailm. (1832).

BAILMENT AND SALE DISTINGUISHED

3. In a sale, ownership or title must pass, while possession either may or may not pass; in a bailment, ownership must not pass, but possession must.

It is easy to state the difference in legal effect between a sale and a bailment; the difficulty lies in the practical application of the test to specific transactions. The sale contemplates the passage of title; the seller divests himself of his ownership in the goods and confers it on the buyer. In a bailment, the owner retains still his ownership and transfers to the bailee something far short of title, viz., mere possession. The seller parts with the goods; they are no longer his but the buyer's. The bailor parts, not with the goods, but merely with possession of the goods, so that they are, after the bailment purpose is accomplished, to be returned to him or to such other person as he may direct.11

According to Benjamin,12 the following is the test: "When the identical thing delivered is to be returned, though, perhaps, in an altered form, it is a bailment and the title is not changed; but when there is no obligation to return the specific article received, and the receiver is at liberty to return another thing, either in the same or some other form, or else to pay merely * the title is changed, and the transaction is a sale." 18 Thus, when

* *

11 Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706; Appeal of Edward, 105 Pa. 103; Dando v. Foulds, 105 Pa. 74; Enlow v. Klein, 79 Pa. 488; Rose v. Story, 1 Pa. 190, 44 Am. Dec. 121; Wheeler & Wilson, Manuf'g Co. v. Heil, 115 Pa. 487, 6 Atl. 616, 2 Am. St. Rep. 575; William R. Trigg Co. v. Bucyrus Co., 104 Va. 79, 51 S. E. 174; First Nat. Bank of Concordia v. McIntosh & Peters Live Stock & Commission Co., 72 Kan. 603, 84 Pac. 535. On a sale, however, the seller of the goods may become a bailee by agreeing by the same contract to store them. Oakley v. State, 40 Ala. 372. See, further, as to the distinction between a bailment and a sale, Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848; Gleason v. Beers' Estate, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757; Singar Mfg. Co. v. Ellington, 103 Ill. App. 517.

12 Benj. Sales (6th Am. Ed.) p. 5, note; and see cases there cited.

13 Pierce v. Schenck, 3 Hill (N. Y.) 28; Foster v. Pettibone, 7 N. Y. 433, 57 Am. Dec. 530; Mansfield v. Converse, 8 Allen (Mass.) 182; Barker v. Roberts, 8 Greenl. (Me.) 101; Brown v. Hitchcock, 28 Vt. 452; Irons v. Kentner, 51 Iowa, 88, 50 N. W. 73, 33 Am. Rep. 119. If, however, the identical thing is not to be returned, it is a sale or an exchange, according to the nature of the consideration. South Australian Ins. Co. v. Randell, L. R. 3 P. C. 101; Laflin & R. Powder Co. v. Burkhardt, 97 U. S. 110, 116, 24 L. Ed. 973; Sturm v. Boker, 150 U. S. 312, 330, 14 Sup. Ct. 99, 37 L. Ed. 1093; McCabe v. McKinstry, 5 Dill. 509, Fed. Cas. No. 8,667; Ewing v. French, 1 Blackf. (Ind.) 354; Smith v. Clark, 21 Wend. (N. Y.) 83, 34 Am. Dec. 213; Norton v. Wood

14

wheat is delivered by a farmer to a miller to be ground, and the flour made from that identical wheat is to be returned by the miller, the transaction is very clearly a bailment. But when the miller in return for the wheat agrees to deliver merely a specified quantity of flour of a designated grade or brand, then it is equally as clear that the transaction is not a bailment, but a sale or exchange.15 In the first case, the farmer still owns the wheat and the flour into which it is converted, so that the miller would have no right as against the farmer to destroy such wheat or flour, nor could he dispose of it to another person. In the second case, however, the farmer passes the title to the wheat, and he cannot demand it or its product again; for he has bartered it, and in its place he has a mere right to receive a certain quantity of flour of a certain type. Accordingly, here the miller could destroy the wheat as soon as it was received by him, and the farmer would have no legal right to complain.

ruff, 2 N. Y. 153; Crosby v. Delaware & H. Canal Co., 119 N. Y. 334, 23 N. E. 736; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623; Butterfield v. Lathrop, 71 Pa. 225; Andrews v. Richmond, 34 Hun (N. Y.) 20; Austin v. Seligman (C. C.) 21 Blatchf. 507, 18 Fed. 519; Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311; Marsh v. Titus, 3 Hun (N. Y.) 550; Kaut v. Kessler, 114 Pa. 603, 7 Atl. 586; Bailey v. Bensley, 87 Ill. 556; Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534. The fact that the bailee agrees to pay a certain sum, if he does not return the property, does not, per se, convert the bailment into a sale. Westcott v. Thompson, 18 N. Y. 363; SATTLER v. HALLOCK, 160 N. Y. 291, 54 N. E. 667, 46 L. R. A. 679, 73 Am. St. Rep. 686, Dobie Cas. Bailments and Carriers, 9; First Nat. Bank of Elgin v. Schween, 127 Ill. 573, 20 N. E. 681, 11 Am. St. Rep. 174; Genobia Aragon De Jaramillo v. United States, 37 Ct. Cl. 208; Fleet v. Hertz, 201 Ill. 594, 66 N. E. 658, 94 Am. St. Rep. 192; Scott Mining & Smelting Co. v. Shultz, 67 Kan. 605, 73 Pac. 903. For a long line of cases distinguishing Bailments and Sales, see 43 Cent. Dig. (Sales) §§ 7-10, columns 36-47; Dec. Dig. (Sales) § 3, pp. 17061710. See, also, Tiffany on Sales, § 5.

14 Slaughter v. Green, 1 Rand. (Va.) 3, 10 Am. Dec. 488; Inglebright v. Hammond, 19 Ohio, 337, 53 Am. Dec. 430; Mallory v. Willis, 4 N. Y. 76.

15 Hurd v. West, 7 Cow. (N. Y.) 752, note page 758; Smith v. Clark, 21 Wend. (N. Y.) 83, 34 Am. Dec. 213; Norton v. Woodruff, 2 N. Y. 153; Ewing v. French, 1 Blackf. (Ind.) 353; Buffum v. Merry, 3 Mason, 478, Fed. Cas. No. 2,112; Chase v. Washburn, 1 Ohio St. 251, 59 Am. Dec. 623 (distinguishing Slaughter v. Green and Inglebright v. Hammond, supra); Jones v. Kemp, 49 Mich. 9, 12 N. W. 890. The same rule has been applied to the refining of jeweler's sweepings, Austin v. Seligman (C. C.) 21 Blatchf. 506, 18 Fed. 519; to the sawing of logs into boards, Barker v. Roberts, 8 Greenl. (Me.) 101; Pierce v. Schenck, 3 Hill (N. Y.) 28; to the delivery of hides to be tanned, Jenkins v. Eichelberger, 4 Watts (Pa.) 121, 28 Am. Dec. 691. But see Weir Plow Co. v. Porter, 82 Mo. 23; Caldwell v. Hall, 60 Miss. 330, 44 Am. Rep.

Grain Elevators

The distinction between sales and bailments is most subtle from a legal standpoint and most important from a practical standpoint in the case of grain elevators. Here the question is complicated by the fact that considerations of convenience and economy demand that the grain deposited by each person be not kept separate, but that it be commingled with similar grain of other depositors. The specific contract is in each case controlling, and all relevant surrounding facts and circumstances should be considered in doubtful cases, in order to arrive at the real intention of the parties. The distinction turns about the question of whether the elevator keeper's control of the grain is of such an order as to negative ownership in any one else. The cases cannot be reconciled, but reason and authority would seem to support the doctrines indicated.16

The mere fact that the keeper of the elevator by custom or contract has the right to commingle the grain of several depositors, so that no depositor can receive the identical grain deposited, does not make the transaction any the less a bailment. Each depositor is then the owner of a share in the mass, to be determined by the proportion which his own deposit bears to the entire mass, while the keeper remains a mere bailee of the mass.1

The situation is more complicated when the keeper has the right to deposit grain of his own in the mass and also to make withdrawals from the mass, and to make substitutions of other grain. of like grade for that withdrawn, subject to the proviso that he must at all times keep in his elevator grain equal in quality and quantity to the sum total of all the deposits. This, though, is still

a bailment,18 and the relation attaches to the grain through all the mutations of individual particles in the elevator. The keeper could not here destroy the grain in the elevator, nor could he dispose of

16 For a discussion of the question and review of the cases, see article on "Grain Elevators" in 6 Am. Law Rev. 450. For cases, see 43 Cent. Dig. (Sales) § 11, columns 48-51, 17 Dec. Dig. (Sales) 4 (5), p. 1710.

17 Mayer v. Springer, 192 Ill. 270, 61 N. E. 348; Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69, 10 Ann. Cas. 1065; State v. Cowdery, 79 Minn. 94, 81 N. W. 750, 48 L. R. A. 92; Bryan v. Congdon, 54 Kan. 109, 37 Pac. 1009; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760; Greenleaf v. Dows (C. C.) 8 Fed. 550; Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706.

18 Sexton v. Graham, 53 Iowa, 181, 4 N. W. 1090; JAMES v. PLANK, 48 Ohio St. 255, 26 N. E. 1107, Dobie Cas. Bailments and Carriers, 14; McGrew v. Thayer, 24 Ind. App. 578, 57 N. E. 262; Andrews v. Richmond, 34 Hun (N. Y.) 20; Odell v. Leyda, 46 Ohio St. 244, 20 N. E. 472; Hall v. Pillsbury, 43 Minn. 33, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St. Rep. 209.

any of the grain save his own without substituting similar grain therefor. This therefore implies, rather than negatives, the ownership of some one other than the elevator keeper.

But when the obligation imposed on the elevator keeper by the receipt of the grain is merely to return grain of a certain quantity and quality, then the transaction cannot be a bailment.1o The same is true when the keeper has the right to use any and all of the grain on payment therefor, either in money or other grain, without any duty of substitution of other grain therefor in the elevator; 20 and also when the keeper has the option whether he shall return the grain delivered or pay for the grain." In all of these cases, the keeper could destroy the grain when received without impairing the legal rights of the depositor, and this is here inconsistent with the legal notion of a bailment.

It might be remarked that in doubtful cases the older decisions are somewhat inclined to hold the transaction a sale, while the trend of the later cases has decidedly favored the holding that such transactions are bailments and that the essential nature of the transaction, depending on the intention of the parties, is.not changed merely by modern methods of handling the storage of grain.

Mutuum

In this connection may be noticed, for the purpose of distinguishing it, the "mutuum" of the Roman law. A mutuum was a delivery of goods which were expected to be consumed by the recipient, and for which other goods of the same kind were to be returned to the owner. It is clear, from what has been said, that, since title to the goods in such cases would immediately vest in

19 The principle here is the same as when a certain amount of the manufactured product (e. g. flour) is to be given for the wheat. See cases cited in note 15. See, also, O'Neal v. Stone, 79 Mo. App. 279.

20 Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69, 10 Ann. Cas. 1065; Cloke v. Shafroth, 137 Ill. 393, 27 N. E. 702, 31 Am. St. Rep. 375; Johnston v. Browne, 37 Iowa, 200; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623; Rahilly v. Wilson, 3 Dill. 420, Fed. Cas. No. 11,532; McCabe v. McKinstry, 5 Dill. 509, Fed. Cas. No. 8,667.

21 Barnes v. McCrea, 75 Iowa, 267, 39 N. W. 392, 9 Am. St. Rep. 473; O'Neal v. Stone, 79 Mo. App. 279; Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73, S. W. 1005. See, also, cases cited in preceding note. In State v. Rieger, 59 Minn. 151, 60 N. W. 1087, under the contract, the elevator man could exercise his option and acquire the right to use the grain only when the owner had presented the ticket and been paid for the grain. The transaction was held to be a bailment with option to elevator man to convert it into a sale when the ticket was presented.