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USE OF BAILED CHATTELS BY THE BAILEE

37. The borrower may use the bailed goods only for the purpose, at the place, and in the manner contemplated by the contract.

The terms of the bailment contract prescribe the use of the bailed chattels by the bailee. This contract is at the same time the authority for, and the limitation of, the use of the goods on the bailee's part. Articles lent for one purpose cannot be used for another. The lender has a perfect right to fix the conditions upon which he is willing to lend his property. Where the lender has fixed the time, place, or mode of use, any departure from such limitations is a wrong, and renders the borrower absolutely and strictly liable as an insurer for all damage to the chattels bailed, regardless of the question of negligence.18 This principle is one of general application to all bailments; but, in the case of gratuitous loans, since the bailee alone receives a benefit, it applies with peculiar force and strictness. For example, to take a case supposed by Lord Holt, if a man lends another his horse to go westtacit fraud the following, taken originally from Pothier: If a soldier were to borrow the horse of a friend for a battle, expected to be fought the next morning, and were to conceal from the lender the fact that his own horse was as fit for the service, if the borrowed horse were slain in the engagement, the borrower would be responsible, for the natural presumption created by the concealment is that the horse of the borrower is unfit, or that he has none. But, if the borrower had frankly stated that fact, then the loss must be borne by the lender.

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18 Collins v. Bennett, 46 N. Y. 490; Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Buchanan v. Smith, 10 Hun (N. Y.) 474; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Isaack v. Clark, 2 Bulst. (Eng.) 306; Cullen v. Lord, 39 Iowa, 302; Kennedy v. Ashcraft. 4 Bush (Ky.) 530; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576; Martin V. Cuthbertson, 64 N. C. 328; Booth v. Terrell, 16 Ga. 25; Lay's Ex'r v. Lawson's Adm'r, 23 Ala. 377; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310; Grant v. Ludlow's Adm'r, 8 Ohio St. 1. If, after a conversion, the owner receives the property back, he can still recover for any damage he has sustained; that is, the value of the property when received goes in mitigation of damages. Murray v. Burling, 10 Johns. (N. Y.) 172; Bowman v. Teall, 23 Wend. (N. Y.) 306, 35 Am. Dec. 562; Gibbs v. Chase, 10 Mass. 125; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Doble Cas. Bailments and Carriers, 66; Todd v. Figley, 7 Watts (Pa.) 542; Bayliss v. Fisher, 7 Bing. 153; Syeds v. Hay, 4 Term R. (Eng.) 260, 264. See, also, post, p. 105; BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57.

19 In COGGS v. BERNARD, 2 Ld. Raym. 909, 915, 916, Dobie Cas. Bailments and Carriers, 1. And see De Tollenere v. Fuller, 1 Mill, Const. (S. C.) 117, 12 Am. Dec. 616; Vaughan v. Menlove, 3 Bing. N. C. 468, 475.

ward or for a month, and the bailee goes northward or keeps the horse above a month, the bailee will be chargeable if any accident happens on the northern journey or after the expiration of the month, whether due to his negligence or not, because he has made use of the horse contrary to the contract under which it was lent to him, and from this contract alone all his rights as to the use of the horse were derived.20 By accepting the horse under the contract, the bailee thereby effectively consents to its terms and accepts all the limitations on his use that such contract prescribes. A gratuitous loan is to be regarded as strictly personal to the bailee, unless, from the bailment contract or the circumstances surrounding the loan, a different intention can fairly and reasonably be presumed." Hence the borrower has ordinarily no right to lend the goods to another,22 or to permit a third person to participate in the use of them. Where the contract is silent on the point, it may at times be difficult to say whether the surrounding facts would imply the right of the bailee to permit any use of the goods by such third person. The presumed intention. of the parties, of course, is controlling, and each case must rest on its own facts.2

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20 Stewart v. Davis, 31 Ark. 518; Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500.

21 BRINGLOE v. MORRICE, 1 Mod. 210, 3 Salk. (Eng.) 271, Dobie Cas. Bailments and Carriers, 58; Scranton v. Baxter, 4 Sandf. (N. Y.) 5. See, al80, Gwilliam v. Twist, 2 Q. B. (Eng.) (1895) 84.

22 Wilcox v. Hogan, 5 Ind. 546.

28 Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Wilcox v. Hogan, 5 Ind. 546. In BRINGLOE v. MORRICE, 1 Mod. 210, 3 Salk. (Eng.) 241, Dobie Cas. Bailments and Carriers, 58, the plaintiff had loaned his horse to defendant to ride for pleasure, and it was held that the defendant had no right to permit his servant to ride the horse. But in Camoys v. Scurr, 9 C. & P. (Eng.) 383, it was held that one in possession of a horse for the purpose of trying it with a view to a purchase was entitled to put a competent person on the horse for the purpose of trying it, and was not limited to merely trying it himself. So, also, if a horse should be loaned for the bailee's use for a fixed time, it is a fair presumption that the parties intended that the bailee might use the horse through his servants. Every case must rest on its own facts. Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. One who borrows a vehicle having a seat for two may take another person with him, unless otherwise stipulated. Harrington v. Snyder, 3 Barb. (N. Y.) 380. The bailee is not liable for depreciation due to the contemplated use. BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Parker v. Gaines (Ark.) 11 S. W. 693. "Thus the loan of a traction engine, a threshing machine, or some other piece of machinery must, in the majority of cases, of necessity imply both superintendence and use by some person other than the actual and responsible borrower." 1 Halsbury, Laws of England, p. 540. See, also, for hypothetical cases Story, Bailm. § 234.

INTEREST OF THE BAILEE

38. When the loan is neither for a definite time nor for a specific purpose, clearly the bailee has merely a possessory interest as to the chattels bailed. But when the loan is created for a definite time or for a definite purpose, the bailee (it would seem), having once entered upon the bailment, has a special property in the goods.

There is much of the same confusion of ideas in regard to the nature of the borrower's interest in the goods lent under a commodatum that exists as to the bailee's interest in a depositum or mandatum. Some authors claim that the borrower has a special property in the subject of the loan; 24 others maintain that he has merely a possessory interest. 25 It would seem that, in order to determine the true rule as to the interest of the bailee in the chattels bailed, a distinction must be made between (a) those loans. which are created for a definite time or a specific purpose, and (b) those which are created for an indefinite time or an indefinite purpose.26

Under (b), the loan (being neither for a definite time nor for a specific purpose) is terminable at any time at the option of the bailor. Now the idea of a special property in a thing (as we have seen) involves the idea of a right to the thing which can be asserted against the world. Therefore, in these indefinite bailments (b), the right of the bailee can hardly be said to rise above the dignity of a mere possessory interest.

24 See Schouler, Bailm. § 81; Goddard, Bailm. & Carr. § 58. Both of these writers recognize the distinction between the bailment for an indefinite time and the bailment for a definite time or specific purpose, contending for the special property (or its legal equivalent) only as to bailments of the latter type. Direct authority in such cases seems lacking. The cases usually cited are usually (if bailments at all) either bailments for the bailor's sole benefit or bailments for hire. Many writers lay down general rules as to gratuitous bailments, making no distinction between bailments in which the bailee receives all the benefit and those in which he receives none.

252 Kent, Comm. 574: "The borrower has no special property in the thing loaned, though his possession is sufficient for him to protect it by an action of trespass against a wrongdoer." See, also, Van Zile, Bailm. & Carr. § 105. LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71, quotes the above passage from Kent, though that case was one of hiring.

26 This distinction, with the attendant difference as to the nature of the bailee's interest here, seems right on principle. Authority in decided cases, when this question was necessarily passed on by the court as a controlling question, is lamentably scarce. See note 24.

Under (a), however, the bailment being either for a definite time or a specific purpose, the bailee (having once entered upon the bailment) has rights in the goods, which he can assert, not only against third persons, but even against the bailor. The bailee can then as against all the world retain possession of the goods until the expiration of the time or the accomplishment of the bailment purpose. It therefore seems proper to say here that the bailee has a special property in the goods. His right is in the thing and exists as an in rem right, without regard to persons.

Of course a mere agreement by the owner to make a loan of the goods to another, even for a definite time or purpose (unaccompanied by any delivery of the goods), is not a bailment at all. It is a mere executory contract, and as long as it remains such, as it is not based upon any consideration, it is unenforceable.27

RIGHT OF BAILOR AND BAILEE TO BRING SUIT

39. Either the borrower bailee or the lender bailor may, in an appropriate action, sue third persons for wrongful interference with the bailed chattels.

The right of the bailor or bailee to bring suit for a wrongful interference with the bailed chattels is but a phase of, or a deduction from, the principles discussed in the preceding section. The bailee borrower may maintain, by virtue of his interest, an appropriate action against a third party for the wrongful disturbance of his possession,28 and it is generally held that the bailee's action

27 The bailee here cannot enforce the executory contract for a gratuitous loan, just as the bailor cannot enforce such a contract looking to a bailment for the bailor's sole benefit. In both cases there is a mere executory contract, unsupported by a consideration, and no bailment at all. See THORNE v. DEAS, 4 Johns. (N. Y.) 84, Dobie Cas. Bailments and Carriers, 47; Crosby v. German, 4 Wis. 373; Elsee v. Gatward, 5 Term R. (Eng.) 143; Shillibeer v. Glyn, 2 Mees. & W. (Eng.) 143.

28 CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Doble Cas. Bailments and Carriers, 59; Paddock v. Wing, 16 How. Prac. (N. Y.) 547; Hurd v. West, 7 Cow. (N. Y.) 753; Hendricks v. Decker, 35 Barb. (N. Y.) 298; Barker v. Miller, 6 Johns. (N. Y.) 195; Duncan v. Spear, 11 Wend. (N. Y.) 54; Badlam v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Dec. 202; Nicolls v. Bastard 2 Cromp., M. & R. (Eng.) 859; Burton v. Hughes, 2 Bing. (Eng.) 173; Sutton v. Buck, 2 Taunt. (Eng.) 302; Rooth v. Wilson, 1 Barn. & Ald. (Eng.) 59. As to trover by the bailee, see Waterman v. Robinson, 5 Mass. 303; Burton v. Hughes, supra; Armory v. Delamirie, 1 Strange (Eng.) 505; Ogle v. Atkinson, 5 Taunt. (Eng.) 759. The bailee may sue and recover, although he is not liable to the bailor. Where a bailee received a horse from the owner with the understanding that he might use him, and, if satisfied with him, pur

here may be either in trespass or trover; and, at least when the bailee has a special property in the goods, there seems to be no reason why the action of replevin should not lie.

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An action may also be maintained by the bailor lender.29 complete recovery by either the bailor or bailee is a bar to any action by the other.30 Any excess beyond his own interest that the bailee recovers is held by him, of course, as trustee for the bailor. What was said, however, under bailments for bailor's sole benefit, in regard to modern authority casting doubt on this last proposition, and advocating the doctrine that the interests of the bailor and bailee (which are separable and can be separately valued) should be protected by separate suits brought by each to recover only his own loss, is more strongly applicable here, since the bailee's interest is much more real.

chase him, held, that such bailee had a sufficient right of property in the horse to maintain an action against a party to whom he had let the horse, for injuries resulting from overdriving. Harrison v. Marshall, 4 E. D. Smith (N. Y.) 271. And see White v. Philbrick, 5 Greenl. (Me.) 147, 17 Am. Dec. 214; Campbell v. Phelps, 1 Pick. (Mass.) 62, 11 Am. Dec. 139; Adams v. Broughton, 2 Strange (Eng.) 1078; Lamine v. Dorrell, 2 Ld. Raym. (Eng.) 1216; Broome v. Wooter, Yel. (Eng.) 67j. Cf. LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71, with Lockhart v. Western & A. R. R., 73 Ga. 472, 54 Am. Rep. 883. See, also, Baggett v. McCormack, 73 Miss. 552, 19 South. 89, 55 Am. St. Rep. 554; Gillette v. Goodspeed, 69 Conn. 363, 37 Atl. 973; The Winkfield (Eng.) C. A. (1902) 42.

29 ORSER V. STORMS, 9 Cow. (N. Y.) 687, 18 Am. Dec. 543, Dobie Cas. Bailments and Carriers, 60; Thorp v. Burling, 11 Johns. (N. Y.) 285; Hurd v. West, 7 Cow. (N. Y.) 753; Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346; Hoyt v. Gelston, 13 Johns. (N. Y.) 141; Booth v. Terrell, 16 Ga. 21, 25; Smith v. Milles, 1 Term R. (Eng.) 475, 480; Lotan v. Cross, 2 Camp. (Eng.) 464; Nicolls v. Bastard, 2 Cromp., M. & R. (Eng.) 659. And see Roberts v. Wyatt, 2 Taunt. (Eng.) 268, 275. In ORSER v. STORMS, 9 Cow. (N. Y.) 687, 18 Am. Dec. 543, Dobie Cas. Bailments and Carriers, 60, it was held that one who had a right to personal property loaned for an indefinite time might maintain trespass for the taking of it. The court said: "The first question to be considered is whether the plaintiff had such a property in the cattle as to be able to maintain trespass. For this purpose he must have had the actual or constructive possession at the time; and the latter is when he has such a right as to be entitled to reduce the goods to actual possession at any time. In my opinion, the plaintiff had the right to bring this action." See, also, Pulliam v. Burlingame, 81 Mo. 111, 51 Am. Rep. 229. As holding that a lender for a fixed time has not such constructive possession, see Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346; Hoyt v. Gelston, 13 Johns. (N. Y.) 142; Buck v. Aikin, 1 Wend. (N. Y.) 466, 19 Am. Dec. 535. The bailor may maintain trespass against one who wrongfully takes the goods from the bailee even by legal process. Root v. Chandler, 10 Wend. (N. Y.) 110, 25 Am. Dec. 546.

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30 Faulkner v. Brown, 13 Wend. (N. Y.) 63; Hall v. Tuttle, 2 Wend. (N. Y.) 475, 479; Flewellin v. Rave, 1 Bulst. (Eng.) 68.

81 Ante, p. 64.

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