RIGHTS AND DUTIES OF THE PARTIES 24. The rights and duties of the bailor and bailee depend primarily upon the special contract in each case. The principles discussed, however, are, unless varied by the special contract, common to all bailments for the bailor's sole benefit. The utter absence of benefit to the bailee is ample warrant for making the bailee's duties as slight as is consistent with the nature and purpose of the bailment. In General The rights and duties of the parties are, of course, primarily dependent upon the contract they have made."" The instructions of the bailor accompanying the delivery and the terms of acceptance imposed by the bailee are binding upon both parties. Subject only to the limitation that their contract must not be in violation of positive law or against public policy, the parties may by contract vary their rights and liabilities at will." 45 The rights and duties of the bailor and bailee in this class of bailments, in the absence of special contract, may well be considered together. In the transaction, the more active and important part is played by the bailee. In the discussion of his rights and duties, those of the bailor will incidentally appear. The prime determinant, to be kept constantly in view in working out the rights and correlative duties of the parties, is, of course, the fact that the bailor alone derives any benefit from the transaction. It follows, accordingly, that the burdens as far as is consistent with the essential nature of the bailment, should rest with the bailor, and the gratuitous undertaking of the bailee should be made as light for him as is possible. This will clearly appear in the discussion of the rights and duties of the parties to such a bailment contained in the succeeding sections. of this chapter. EXPENSES OF CARRYING OUT THE BAILMENT 25. The bailor must indemnify the bailee against necessary expenses reasonably incurred in the performance of the bailment. For the payment of such expenses, the bailee has implied authority to bind the bailor by a contract with a third person. 44 Ferguson v. Porter, 3 Fla. 27; McCauley v. Davidson, 10 Minn. 418 (Gil. 335); Fellowes v. Gordon, 8 B. Mon. (Ky.) 415; Archer v. Walker, 38 Ind. 472. 45 Ante, pp. 18-19. Bailor must Indemnify Bailee against Expense While the bailee, in bailments for the sole benefit of the bailor, is not entitled to any compensation for his services, he is entitled to recover his actual disbursements and expenses necessarily incurred in carrying out the bailment. This is naturally implied in the undertaking. The law does not presume that the bailee, in thus undertaking a gratuitous task, intended to assume the additional burden of making any pecuniary expenditures. Particularly in doubtful cases, the bailee should, if possible, secure the bailor's consent before the expense is incurred. It is equally immaterial, however, either that the expenses were greater than those that the owner himself would have paid, if these expenses were reasonably incurred, or that the bailor has not derived the expected benefit from the execution of the bailment, if such failure was in no way caused by the fault of the bailee. So, also, the bailee can claim indemnity from the bailor against liability on contracts entered into by the bailee in his own name, which are necessarily incidental to the performance of the bailment.* At common law the bailee had no lien on the goods forming the subject-matter of the bailment for such expenses, but might claim and recover them in an action.1o Reward Offered for Recovery of Lost Goods 47 When the owner of lost property offers a specific sum of money as a reward for its return, the finder has a lien for the amount of the reward and can retain the goods until this reward is paid.50 If no particular sum was offered, but merely a liberal reward, then there is no lien. Many cases hold that the finder cannot 46 Story, Bailm. §§ 121, 154; Devalcourt v. Dillon, 12 La. Ann. 672; Harter v. Blanchard, 64 Barb. (N. Y.) 617; Bacon v. Fourth Nat. Bank (City Ct. N. Y.) 9 N. Y. Supp. 435; Chase v. Corcoran, 106 Mass. 286. Where the purchaser of goods shipped them back to the seller without any notification, or any previous agreement in regard thereto, and the seller, in order to protect the goods, stored them, he became a gratuitous bailee, and the buyer was liable to the seller for necessary storage charges actually paid. Smith v. F. W. Heitman Co., 44 Tex. Civ. App. 358, 98 S. W. 1074. Courts are indisposed to extend, by inference, the perils of an unprofitable trust; and so it is that every bailee without reward is regarded as having assumed the least responsibility consistent with his actual undertaking. Christian v. First Nat. Bank, 155 Fed. 705, 84 C. C. A. 53. 47 Story, Bailm. § 197. 48 See Story, Bailm. § 198. 49 Nicholson v. Chapman, 2 H. Bl. (Eng.) 254; Reeder v. Anderson's Adm'rs, 4 Dana (Ky.) 193; Amory v. Flyn, 10 Johns. (N. Y.) 102, 6 Am. Dec. 316; Etter v. Edwards, 4 Watts (Pa.) 63; Chase v. Corcoran, 106 Mass. 286. 50 Wentworth v. Day, 3 Metc. (Mass.) 352, 37 Am. Dec. 145; Cummings v. Gann, 52 Pa. 484. 51 Wilson v. Guyton, 8 Gill (Md.) 213. even claim the reward offered, unless he performed the services with knowledge of the reward. 52 When no reward is offered, the courts agree that no compensation can be claimed merely for finding the goods, though the finder could claim reasonable expenses necessarily involved in keeping the goods." Bailee may Bind Bailor by Contract Instead of paying out money and seeking reimbursement, the bailee may make the contract (necessary to carry out the bailment) with the third person in the name of the bailor, and the latter will be bound thereon. In other words, inhering in the relation of a bailment for the bailor's sole benefit is an implied agency on the part of the bailee to bind the bailor as principal. by such contracts as are involved in performing the object for which the bailment was created. Thus, where a horse, which was pastured by a bailee without reward, broke his leg, it was held that the bailee had implied authority to contract, in behalf of the bailor, with a competent farrier for the care and keeping of the horse, and to bind the bailor by such contract until the latter could be informed of the injury, and had time and opportunity to make other provision for the care of the horse." LIABILITY FOR NONFEASANCE AND MISFEASANCE 26. A person is not liable for his nonfeasance in failing to enter upon a bailment, though he has gratuitously promised to Once the bailment is begun, however, the bailee is liable for his misfeasance in the defective performance of the bailment. do so. A clear distinction should be noted between an actual bailment (that is, when the relation is really established by the delivery of the goods to the bailee) and a mere executory contract contemplating the creation of a bailment in the future. In the first case, the party actually becomes a bailee; in the second, he merely agrees to become a bailee at a later date. The second case is no more a bailment than a mere promise to marry is a marriage. Nonfeasance In the second case, since there is no bailment, but a mere executory contract, the general principles of contract apply. It will 52 Howland v. Lounds, 51 N. Y. 604, 10 Am. Rep. 654. 53 Watts v. Ward, 1 Or. 86, 62 Am. Dec. 299; Amory v. Flyn, 10 Johns., (N. Y.) 102, 6 Am. Dec. 316. 54 Harter v. Blanchard, 64 Barb. (N. Y.) 617. readily be seen that the promise of the person that he will become a bailee (since he will receive no benefit, even if a bailment is afterwards created) is without consideration, and therefore unenforceable. Such person, then, can break his executory contract with impunity and incur no legal liability. By nonfeasance, then, which imposes no liability, is meant the utter failure even to enter upon the performance of the bailment. No legal responsibility thus rests on one who declines to become a bailee, though he has gratuitously agreed to do so.55 Misfeasance If, however, the goods have been delivered to the person, then a bailment is actually created; and this task, once entered upon, must be completed according to its terms, including both duties created by contract and those created by law." Thus any performance must be a proper performance, and for a defective performance the bailee is liable in damages. A consideration is here found in the fact of the actual intrusting by the bailor of his goods to the bailee; the acceptance of the bailment, thus resulting in a loss of possession to the bailor during the continuance of the bailment, prevents the bailor from making other arrangements as to the goods, which he might well have done had there been merely nonfeasance, or a failure to create the bailment at all. For misfeasance, or a defective performance, the bailee is thus liable, and the misfeasance may, of course, consist in a negative act, such as the failure to take proper precautions to protect the goods in the possession of the bailee. Here there is liability imposed on one who is an actual bailee. When the bailment relation once attaches, the law imposes on the bailee certain duties, which he must perform or answer for the consequences. Though these duties vary in the particular classes 55 Nonfeasance of gratuitous undertaking creates no liability. Morrison v. Orr, 3 Stew. & P. (Ala.) 49, 23 Am. Dec. 319; French v. Reed, 6 Bin. (Pa.) 308; Smedes v. Utica Bank, 20 Johns. (N. Y.) 372; Ainsworth v. Backus, 5 Hun (N. Y.) 414; THORNE v. DEAS, 4 Johns. (N. Y.) 84, Dobie Cas. Bailments and Carriers, 47; Rutgers v. Lucet, 2 Johns. Cas. (N. Y.) 92; McGee v. Bast, 6 J. J. Marsh. (Ky.) 453; Elsee v. Gatward, 5 Term R. (Eng.) 143. 56 See cases in preceding note, and see discussions and cases cited in section 29. See, also, Walden v. Karr, 88 Ill. 49; Graves v. Ticknor, 6 N. H. 537; First Nat. Bank of Carlisle v. Graham, 79 Pa. 106, 21 Am. Rep. 49; Knowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346; Whitney v. Lee, 8 Metc. (Mass.) 92; Clark v. Gaylord, 24 Conn. 484; Wilkinson v. Verity, L. R. 6 C. P. (Eng.) 206. For applications of this principle to common-law agencies, see Fellowes v. Gordon, 8 B. Mon. (Ky.) 415; McGee v. Bast, 6 J. J. Marsh. (Ky.) 453; Ferguson v. Porter, 3 Fla. 27; Wilkinson v. Coverdale, 1 Esp. (Eng.) 75; Park v. Hammond, 4 Camp. 344; Balfe v. West, 13 C. B. 466. of bailments, for a defective performance of the particular duty attached to the bailment in question, the bailee is equally responsible in a bailment from which he receives no benefit as in one from which he derives the sole benefit. USE OF BAILED CHATTELS BY BAILEE 27. The bailee has no right to any beneficial use of the thing bailed. This he may use only in so far as such use is incidental to the carrying out of the purpose for which the bailment was created. In this class of bailments, the bailee has no right to the beneficial use of the goods bailed to him; for, if he had such a right, since this right would be a benefit accruing to the bailee, the bailment would become one for the mutual benefit of the bailor and bailee."7 It may happen, however, that the proper keeping of the property involves a certain measure of use, such as exercising a horse. The bailee may in such case keenly enjoy riding the horse, but as long as his use of the animal is limited to such as is necessary for its preservation, such enjoyment is entirely adventitious, as being incidental to his duties as bailee, and hence would not change the character of the bailment into one for mutual benefit. Any attempt, however, by the bailee to act in regard to the thing as its owner, such as disposing of it to a third person, or even to the extent of making an unauthorized use of it, would constitute a conversion, rendering him at once liable to the owner.59 58 INTEREST OF BAILOR AND BAILEE 28. The general property or ownership in the thing bailed remains in the bailor. The bailee has not even a special property therein, but merely a possessory interest. Either party, however, may maintain an appropriate action for an injury to, or conversion of, the thing bailed. 57 Alvord v. Davenport, 43 Vt. 30; Boston & C. Smelting Co. v. Reed, 23 Colo. 523, 48 Pac. 515; Persch v. Quiggle, 57 Pa. 247. The finder of a lottery ticket is not entitled to receive payment on it. If paid, with notice of the holder's possession by finding, it can be collected again by the rightful owner. McLaughlin v. Waite, 5 Wend. (N. Y.) 404, 21 Am. Dec. 232. See Height v. State (Tex. Cr. App.) 150 S. W. 908. 58 Mores v. Conham, Owen (Eng.) 123; Anon., 2 Salk. (Eng.) 522. |