standing that he was to keep the horse for a definite time or until a specific purpose was accomplished. But when the custody of the goods was clearly undertaken for a fixed time, or where the bailment was created for the performance of definite services or a specific purpose, then the bailee, after he has once entered upon the execution of the bailment, no longer has the right to terminate the bailment before it has been fully performed. Thus, when the bailee actually receives the horse on the understanding that it shall be kept a month, or that he will shoe the horse, even though he receives no recompense therefor, then the bailee cannot refuse to go forward with the uncompleted bailment without being responsible in damages to the bailor. These distinctions follow from what has already been said to the effect that a bailment for the bailor's sole benefit, once entered upon by the bailee, must be completed according to its terms. But, when the relation is indefinite or general both in time and purpose, it is by its terms a bailment at will, and as such terminable at the option of the bailor as well as of the bailee.

Termination by Bailee's Wrong

It has already been pointed out, as a principle common to all bailments, that the wrong of the bailee does not operate of itself to terminate the bailment (though statements to the contrary may be found in some of the books), but that it merely gives the bailor the right to terminate the bailment. Since, in the case of bailments for the bailor's sole benefit, the bailor already has arbitrarily such a right, the bailee's wrong here confers no new right but rather affords a strong reason why the old right should be exercised. When, as is frequently the case, the wrong consists in an unlawful dominion by the bailee over the goods, the bailor may (as in other cases) sue for conversion.88

86 Story, Bailm. § 202. Goddard, Bailm. & Carr. § 54. See ante, § 26, "Nonfeasance." Cases are very rare here, but the rule stated seems sound on principle, and the bailee, having lulled the bailor into a false sense of security as to the definite time or purpose of the bailment, and having prevented the bailor from making other arrangements, should be compelled to complete such a bailment when he has once entered upon its performance. 87 See ante, p. 45; King v. Bates, 57 N. H. 446; Crump v. Mitchell, 34 Miss. 449; McMahon v. Sloan, 12 Pa. 229, 51 Am. Dec. 601; Wilkinson v. Verity, L. R. 6 C. P. 206.

Thus, where a bailee wrongfully disposes of the property to a third person, the statute of limitations does not run against an action on the bailment contract until the breach is discovered. Wilkinson v. Verity, L. R. 6 C. P.

206; Crump v. Mitchell, 34 Miss. 449; McMahon v. Sloan, 12 Pa. 229, 51 Am. Dec. 601. In case of such a conversion, the bailor may, however, treat the bailment as terminated, and recover the property itself from whomever is in possession. King v. Bates, 57 N. H. 446.

88 Ante, p. 62; post, p. 105.

Termination by Death

89

The cases are few, and far from clear, on the subject of the effect that the death of the bailor or bailee has on the termination of bailments for the bailor's sole benefit. It is usually held that the death of the bailor terminates the bailment. This is certainly true when the bailment is for an indefinite time or purpose, and a quasi bailment arises until the goods are delivered to the bailor's personal representatives. It would seem, however, that when the bailment is for a definite time or purpose, so that the bailor has a right to insist on the completion of the bailment, this right should pass ordinarily to the personal representative of the bailor after the latter's death.

When the bailment involves a personal trust or confidence imposed in the bailee, then clearly the death of the bailee terminates the bailment. It is equally clear that in bailments for an indefinite time or purpose, since neither party can insist on the completion of the bailment, this is terminated when the bailee dies."" If, however, the bailment involves no personal trust in the bailee (so that his personal representatives can complete it), and if, in addition, the bailment is for a definite time or purpose (so that the bailor can insist in the completion of the bailment), then it would seem that the death of the bailee does not of itself operate to terminate the bailment.

Termination by Change of Legal Status of Parties—Bankruptcy

The effect of bankruptcy of the parties in terminating a bailment of the class in question is also far from clear. It would seem that the bankruptcy of the bailor would operate to terminate the bailment, the rights of the bankrupt bailor ordinarily passing to his trustee. But it seems that the bankruptcy of the bailee does not terminate ipso facto such a bailment, since his bankruptcy does not incapacitate the bailee from continuing the bailment,

89 See Farrow v. Bragg's Adm'r, 30 Ala. 261; Morris v. Lowe, 97 Tenn. 243, 36 S. W. 1098; Goddard, Bailm. & Carr. § 31; Van Zile, Bailm. & Carr. § 82. 90 If there are joint mandataries, the death of one of them dissolves the contract as to all, for, by the general rule of the common law, an authority to two cannot be executed except by both. Sinclair v. Jackson ex dem. Field, 8 Cow. (N. Y.) 543. As to whether this rule would apply in cases of bailments not requiring the united advice, confidence, and skill of all, Judge Story (Bailm. § 211) seems doubtful. Where the authority of the bailees is joint and several, the death of one does not revoke the authority of the others to act.

91 See Ex parte Newhall, 2 Story, 360, Fed. Cas. No. 10,159; Parker v. Smith, 16 East (Eng.) 382; Minett v. Forrester, 4 Taunt. (Eng.) 541. See Loveland, Bankruptcy (3d Ed.) § 153; National Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]) § 70; Collier, Bankruptcy 9th Ed.) § 1000 et seq.

and since the trustee of the bankrupt bailee could not take over the goods, which are owned by the bailor. The bailee's bankruptcy, however, would tend to make the bailor himself exercise his right of terminating the bailment, but this right the bailor always has in bailments for his benefit alone.

Same-Marriage of Woman

The marriage of a woman at common law wrought so tremendous a change in her as a juristic personality that the marriage of a woman, whether bailor or bailee, would probably immediately terminate the bailment."2 Under modern emancipation statutes, however (which place the married woman substantially on the same plane, as to contract relations, with the feme sole), there seems to be no reason why the marriage of a woman (whether bailor or bailee) should affect the bailment relation.

Same-Insanity

It would seem that what has just been said as to the bailor, and his personal representative on the bailor's death, is also applicable to the bailor and his committee on the bailor's insanity. On the insanity of the bailee, incapacitating him by an unusual and unforeseen misfortune from carrying out the bailment, the bailment, it seems, would immediately be terminated."

Termination by Destruction of the Bailed Goods

94

This necessarily, as has been shown, terminates all bailments.

REDELIVERY OF THE BAILED GOODS

31. At the termination of the bailment, the bailee must deliver up the bailed goods, according to the terms of the bail

ment contract.

Unless otherwise provided for, the normal place of delivery is the place in which the goods are kept by the bailee.

The rights and duties of the parties, as to the redelivery of the goods forming the subject-matter of the bailment, when the bailment is terminated, are, in general, the same here as in other classes of bailments. Particularly is this true as to what goods

95

*2 See Story, Ag. §§ 488-500; Story, Bailm. § 206; Poth. Contrat de Mandat, note 111; 2 Rop. Husb. & Wife, 69, 73; 2 Kent, Comm. (4th Ed.) lect. 41, p. 645; Story, Ag. § 481.

93 See Story, Ag. § 481; Goddard, Bailm. & Carr. § 32; Van Zile, Bailm, & Carr. § 83.

94 Ante, p. 46.

95 Ante, § 19.

97

are to be delivered " and as to whom such delivery should be made. Only the place of delivery requires separate treatment in this connection.

Place of Delivery

If the bailment contract expressly provides where the bailed goods shall be redelivered, or if the intention of the parties as to the place of delivery can be gathered from the contract, that, of course, governs. When the contract is silent on this point, however, much will depend on the particular circumstances of each case, while recourse is often had to custom and usage to ascertain the proper place of delivery.

Unless some other place is expressly agreed upon, or may be thus implied from custom, usage, or the circumstances of the transaction, it would seem that the place in which the goods are kept by the bailee should be considered the proper place for the redelivery. This is worked out on the theory that the bailee, deriving no benefit from the transaction, should be given as little trouble as possible. Under such circumstances, it seems fairer and more natural that the bailor (receiving all the benefit) should come to such place for the goods rather than that the bailee (receiving no benefit) should have added to his burdens that of delivering the goods at some other place, such as the residence or store of the bailor.

96 If an animal deposited brings forth young, the latter must also be restored to the owner. He must deliver it in the state in which he received it, with the profits and the increase, and if he fails in either of these respects he is liable. Game v. Harvie, Yel. (Eng.) 50; Civ. Code La. 1838, art. 2919.

97 Burton v. Baughan, 6 Car. & P. (Eng.) 674; Chattahoochee Nat. Bank v. Schley, 58 Ga. 369. A mere depositary is not liable to an action, until refusal to deliver up on demand. West v. Murph, 3 Hill (S. C.) 284; Hill v. Wiggin, 31 N. H. 292; Brown v. Cook, 9 Johns. (N. Y.) 361; Phelps v. Bostwick, 22 Barb. (N. Y.) 314; Duncan v. Magette, 25 Tex. 245; Jackman v. Partridge, 21 Vt. 558. A. deposited money with B., to be paid to C. when A. should have satisfied himself of a fact connected with the deposit. Held, that no duty rested upon B. to inquire whether the fact had occurred; and in a suit by C. against B. to recover the money, evidence was inadmissible to show that A. had declared himself satisfied of the fact, unless such declaration had been made known to B. before the suit. Carle v. Bearce, 33 Me. 337. Where one as a bailee without hire receives money to deliver to another, there is an implied contract that he shall deliver it, or return it, or account for it in a reasonable time. Graves v. Ticknor, 6 N. H. 537.

es This point seems to have been seldom litigated. See, in general, Scott v. Crane, 1 Conn. 255; Slingerland v. Morse, 8 Johns. (N. Y.) 474; Mason v. Briggs, 16 Mass. 453. A demand for the return may be made elsewhere. Dunlap v. Hunting, 2 Denio (N. Y.) 643, 43 Am. Dec. 763; Scott v. Crane, 1 Conn. 255.

40. Degree of Care to be Exercised by the Bailee.

INTRODUCTORY-COMMODATUM

32. A bailment for the sole benefit of the bailee is a bailment of goods for beneficial use by the bailee, without recompense to the bailor. In short, it is a gratuitous loan for use. Such bailments correspond to the Roman commodatum.

In this class of bailments (the opposite of the class just considered), the sole benefit, consisting of the beneficial use of the bailed article, is received by the bailee, and the bailor is wholly without reward. Such a bailment contemplates the gratuitous loan of a chattel, to be used temporarily by the bailee for his own sole benefit, and then to be returned according to the bailor's directions. The fact that the sole benefit of the bailment accrues to

1 According to Sir William Jones (Bailm. 118), "lending for use is a bailment of a thing for a certain time, to be used by the borrower without paying for it." The civil-law definition is that it is the grant of a thing to be used by the grantee gratuitously for a limited time, and then to be specifically returned. Story, Bailm. § 219. In the words of Chancellor Kent (2 Comm., 13th Ed., 573), it is "a bailment or loan of an article for a certain time, to be used by the borrower without paying for the use." According to Ayliffe (Pand. bk. 4, tit. 16, p. 516), “it is a grant of something made in a gratuitous manner for some certain use, and for a certain term of time, expressed or implied, to the end that the same species should be again returned or restored again to us, and not another species of the same kind or nature; and this in as good a plight as when delivered to us." In COGGS v. BERNARD, 2 Ld. Raym. 909, 913, Dobie Cas. Bailments and Carriers, 1, Lord Holt says that a commodatum arises "when goods or chattels that are useful are lent to a friend, gratis, to be used by him."

Of the modern authors, the definition of Schouler is worthy of attention. In this he says: "We may define the bailment as one for the temporary bene