land, in which he devised to his wife a life use, and
at her death the remainder went to his children.
The widow conveyed her interest to defendant.
This action was brought by the children against
defendant for waste in cutting and carrying away
timber worth $600. It was shown that the property
was timber land and not valuable for anything else.
What are defendant's rights ?
(9) In re Rausch, 35 Minn. 291. Maria Rausch,
by an instrument in writing which recited that, in
consideration of the sum of $100 to her paid by her
husband, Henry Rausch, and the further sum of $300
agreed to be paid to her by him in two years, she did
" remise, release, convey, and set over unto the said
Henry Rausch " all her estate or claim to all real
and personal property now owned or hereafter ac-
quired by said Henry Rausch. She further agreed
to make no claim on him or his heirs for any further
interest in his property. At his death she applied
for her dower interest.
(10) State v. Pottmeyer, 33 Ind. 402. In this case
a non-navigable stream flowed through the land of a
certain party who claimed the exclusive right to the
ice forming on this stream in its natural channel
over his land. The question was also raised, as to
whether the person owning the land on one side of
this stream would be liable for any damages, to the
party owning the land on the opposite side of the
stream, for ice taken beyond the middle of the stream.
CASES ON REAL PROPERTY 123
(n) Turner v. Townsend, 42 Neb. 376. Turner
was the tenant of property belonging to Townsend
and, during his tenancy, a storm broke a front
window which was replaced by the tenant, the land-
lord having refused to put in a new one. This
action was brought by Turner to recover the price of
the new window.
(12) Collins v. Hasbrouck, 56 N. Y. 157. In this
case the tenant made a contract in which he conveyed
the whole of his unexpired term under his lease with
the landlord, but reserved rent at a rate and time of
payment different from those in the original lease,
and also the right of reentry in case the new tenant
failed to pay his rent or violated any of the condi-
tions of the contract ; and also providing that the
premises were to be surrendered to the first tenant at
the expiration of the time. This action was brought
to determine whether there had been an assignment
or subletting.
LESSON XXXIV
CONTRACTS FOR THE BAILMENT OF
PERSONAL PROPERTY
53. DEFINITION.
54. How CREATED.
55. TORTIOUS BAILMENT.
56. DEGREES OF CARE.
57. CLASSIFICATION.
53. Definition. A bailment is the transfer of
personal property by one party to another for some
specific purpose with the understanding that it shall
be returned or redelivered at the expiration of a
stated time, or upon the completion of the purpose
for which the bailment was made. The person
transferring the property is called the bailor and the
one to whom it is transferred, the bailee.
It is held that a bailment is created even when
the property is to be returned in a different form
from that in which it was received. For example,
wheat to be returned in the form of flour, bran, and
middlings. It is also quite generally held that
where grain is delivered to a warehouseman to be
stored in a bin with other grain of equal grade, and a
like number of bushels are to be returned at some
124
BAILMENTS 125
future time, the transfer is a bailment notwithstand-
ing the fact that the original grain is not to be re-
turned to the bailor. This is an exception to the
rule that the same thing must be returned or re-
delivered in order to constitute a bailment.
54. How Created. A bailment is created by a
contract between the bailor and bailee, which should
specify the purpose for which the bailment is created,
the duration of the bailment, the use that is to be
made of the thing bailed, and any other facts which
may be necessary to determine the respective rights
of bailor and bailee.
55. Tortious Bailment. - When property comes
into the possession of one not its owner as a result
of theft or fraud, a tortious bailment results. This
obligation is riot the result of contract but is imposed
by law for the protection of the owner. A tortious
bailee will be held more strictly accountable for the
care of the property than an ordinary bailee. He
will be absolutely liable for any loss that may occur
while the property is in his possession even if he is
not negligent. When one finds personal property, he
should make a reasonable effort to find the lawful
owner, and in case he fails to do so, he may treat the
property as his own. If he makes no such effort, he
is a tortious bailee. When expense has been in-
curred by the finder, such expense may be recovered
from the owner before the property is surrendered to
him.
126 BAILMENTS
56. Degrees of Care. - - There are three degrees of
care : namely, slight, ordinary, and extraordinary.
Ordinary care may be defined as the care which an
ordinarily prudent person would take of his own prop-
erty. Less than this degree of care would be slight
care, and more would be extraordinary care.
Some authors mention three degrees of negligence,
but the weight of authority seems to favor but one
degree of negligence, and whether or not negligence
exists in a given case will depend upon whether the
required degree of care has been given the property
by the bailee. Absence of the required degree of
care would be negligence.
57. Classification. - - The American classification
of bailments is as follows :
(a) Bailment for the benefit of the bailee.
(b) Bailment for the benefit of the bailor.
(c) Bailment for benefit of bailor and bailee.
When the bailment is for the benefit of the bailee
only, he is expected to use the property with ex-
traordinary care. For example, A borrows B's
bicycle to ride to a certain place and return. He
must take the greatest care possible of the bicycle
and will be liable for its loss, even though the loss
resulted from the slightest negligence on his part.
Where the bailment is for the benefit of the bailor
only, the bailee is expected to take only slight or
reasonable care of the property, and will be liable
onlv when he fails in the exercise of such care. For
BAILMENTS 127
example, A, who is to be out of the city for a few
days, asks B to keep his horse for him until his re-
turn. B undertakes to keep the horse. He must
take reasonable care of him, but would not be ex-
pected to go to unusual expense or trouble.
Where the bailment is for the benefit of both bailor
and bailee, such care as is taken by an ordinarily pru-
dent person of his own property will be expected
of the bailee, and he will be liable only for loss which
results from the absence of such care. For example,
A takes his watch to a jeweler to be repaired. Both
parties are benefited by the bailment, and ordinary
care of the watch must be taken by the jeweler.
LESSON XXXV
BAILMENTS CONTINUED
58. USE OF PROPERTY.
59. LIEN.
60. PLEDGE.
61. WARRANTIES.
62. LIABILITY.
63. TERMINATION.
58. Use of Property. In the case of a bailment
for the benefit of the bailor only, no use could be
made of the property by the bailee, except such as
might be necessary for the welfare of the thing bailed.
128 BAILMENTS
Any benefit that might be derived from the use of
the property would belong to the bailor.
When the bailment is one for the benefit of the
bailee only, he may make such use of the property
as would be consistent with the bailment purpose.
In bailments for the benefit of both parties the
bailee will have the right to use the chattel in ac-
cordance with the contract.
59. Lien. When property has been transferred
to a bailee to be carried from one place to another,
to have some service performed upon it, or to be
stored, the bailee has the right to retain possession
of the property until the payment for the service
has been made. This right is called a lien. If
the bailee gives up his possession before payment is
made, he loses his right of lien and becomes an or-
dinary creditor of the bailor.
60. Pledge. Pledge is a bailment in which the
bailor transfers personal property to the bailee as
security for the payment of a debt, with the under-
standing that when the debt shall have been paid the
property is to be returned to the bailor. The pos-
session of the property is in the bailee and the title
remains in the bailor.
If the pledger fails to pay the debt secured by the
pledge, the pledgee may sell the property, at private
sale if so provided in the contract of pledge, and at
public sale if not so provided, and the proceeds of
the sale must be applied to the payment of the debt.
BAILMENTS 129
If there is a surplus after paying the debt and costs,
such surplus must be returned to the pledgor. In
most states the law prescribes how pledged goods
shall be sold. The pledgee must give notice to the
pledgor before selling the property which has been
pledged. This is intended to give the pledgor an
opportunity to redeem the property. Where no
notice of sale can be given a pledgee owing to in-
ability to ascertain his whereabouts, a sale should
be made under court direction after the necessary
proceedings.
61. Warranties. When a bailment is created for
the purpose of having repairs made to the thing
bailed, the bailee impliedly warrants that he has the
necessary skill to perform the service. If loss re-
sults through his failure to exercise the degree of
skill which is required in such cases, he will be liable
for breach of warranty. This holds good even in
cases of gratuitous bailment. The bailee who
undertakes, without promise of compensation, to
perform service upon a thing belonging to the bailor
cannot be required to undertake the task, but having
begun the work he must exercise skill and care in its
performance.
There is also a warranty of title on the part of
every bailor.
62. Liability. - In a mutual benefit bailment the
bailee is required to take ordinary care of the prop-
erty in his possession and is liable for any loss re-
130 BAILMENTS
suiting from his negligence. As has been stated
in a previous section, the degree of care required of
the bailee, for whose sole benefit the bailment is
created, is much greater than that required in the
mutual benefit bailment. It has also been stated
that the care required of a bailee in the case of a
bailment for the sole benefit of the bailor is much
less than that in either of the other two classes of
bailments. In all of these bailments the bailee will
be liable for any loss that can be shown to have re-
sulted from negligence on the part of himself or his
agents. Failure to exercise the degree of care re-
quired in any given bailment will be considered neg-
ligence. It will be seen that, when the loss occurs
as a result of inevitable accident or through natural
causes, the bailee will not be liable.
63. Termination. Since the bailment relation is
created by an implied or express contract, it will
terminate in accordance with the terms of the con-
tract. In the absence of any definite statement
regarding the termination of the bailment, it will be
understood that the relation will terminate upon the
fulfillment of the purpose. for which it was created.
Return of the property to the bailor or redelivery
upon his order will terminate the bailment relation.
A bailment may come to an end also through agree-
ment of the parties to it. Any act by either party
inconsistent with the relation of bailor and bailee
will terminate the bailment.
CASES ON BAILMENTS 131
WESSON xxxvi
64. CASES ON BAILMENTS
(1) Commonwealth v. Krause, 93 Pa. St. 418.
Krause agreed to purchase two horses for $150 of
Deemer and to pay for them on delivery. At the
time they were delivered Krause had but $25 and
he gave this amount to Deemer, with the under-
standing that he, Krause, should keep the horses
until the following Tuesday, at which time he would
either pay the balance or return the horses, the title
in the meantime to remain in Deemer. No payment
was made on Tuesday. The following Thursday the
horses disappeared, having been sold by Krause.
Deemer offered to return the $25 and demanded his
horses. Krause refused to deliver them back.
(2) Bretz v. Diehl, 117 Pa. St. 589. William D.
Newman was a miller in the town of Bedford. The
sheriff levied on eighty or ninety barrels of flour in
his mill. It appears that some of this flour was
made of wheat belonging to Bretz, the plaintiff in
this case. It was purchased by Diehl, one of the
judgment creditors, at the time of the sheriff's sale.
This action was brought by . Bretz to recover the
value of the flour from Diehl, on the ground that it
did not belong to Newman and should not, there-
fore, have been levied upon. It appears from the
evidence in the case that when Bretz took the wheat
to the mill, he received from Newman a receipt stating
132 CASES ON BAILMENTS
that he, Newman, had received a certain number of
bushels of wheat which was to be put into a common
bin in the mill and out of which Newman was to
grind flour to fill his orders. It was further under-
stood that Bretz was entitled to the flour, bran, and
middlings from wheat of similar grade, whenever he
chose to call for it, but it was not understood that
his flour, bran, and middlings were to be made from
the identical wheat that he delivered at the mill.
(3) Foster v. Essex Bank, 17 Mass. 479. Foster
left $50,000 in gold at the Essex Bank for safe-keep-
ing. No special payment was made for this service.
The cask containing the gold was weighed in the
presence of the president and cashier, but the
directors had no knowledge of the transaction. It
was the custom of the bank, however, to receive
such goods for safe-keeping. No special account
was kept by the bank for such transactions. The
cashier and chief clerk of the bank stole all of this
gold and much of the money that belonged to the
bank. It was shown at the trial that the books at
the bank had been falsified for over two years and
that during all that time they had not been posted.
This action was brought by the executors of Foster
to recover the amount from the Essex Bank.
(4) Stearns v. Marsh, 4 Denio (N. Y.) 227. Marsh
owed Stearns a sum of money which was payable on
the 8th day of November, 1837. To secure payment
of the obligation, Marsh delivered to Stearns ten
cases of boots, to be held as a pledge. On the I5th
CASES ON BAILMENTS 133
day of November, Stearns sold the boots at public
sale in Boston. He published a notice of the sale
in the newspapers in that city, but gave no notice
of the sale to Marsh. No opportunity was given to
Marsh to redeem the pledge. The net proceeds of
the sale were insufficient to pay the entire debt, but
they were applied to the payment of the debt by the
plaintiffs without the assent of Marsh, the defendant.
This action was brought to recover the balance.
(5) Small v. Robinson, 69 Me. 425. Small owned a
hack which he turned over to one Staples in accord-
ance with the terms of a contract which provided
that Staples was to buy it. The sale had not yet
been completed. Robinson was a carriage maker, and
it was shown that he was aware of the fact that the
hack was owned by Small but that Staples had agreed
to buy it. Staples took the hack to Robinson to be
repaired, and after making the repairs, Robinson re-
fused to permit Small to take it away until the re-
pairs had been paid for. This action was brought by
Small to compel Robinson to deliver the carriage to
him.
(6) Sensenbrenner v. Mathews, 48 Wis. 250. Max-
well was a buggy painter and occupied a part of a
building in which Sensenbrenner conducted a black-
smith shop. Maxwell took a buggy upon which the
woodwork had been completed to Sensenbrenner to
have the ironwork done. After the ironwork was
completed, the buggy was turned over to Maxwell,
who intended to paint it and sell it. Sensenbrenner
134 CASES ON BAILMENTS
notified Maxwell not to dispose of it until the iron-
work had been paid for. Maxwell disregarded this
order and sold it to Henry. Sensenbrenner refused
to allow Henry to take it away. Henry secured a
writ of replevin and Mathews, the sheriff, took the
buggy while Sensenbrenner was absent.
(7) Pulliam v. Burlingame, 81 Mo. in. Burlin-
game went to Pulliam and borrowed two mules which
were in the rightful possession of Pulliam. Later,
Pulliam demanded that the mules be returned, but
Burlingame refused to return them, on the ground
that his wife, who was Pulliam's sister, owned half
interest in the mules, and that he had taken them
from Pulliam and was holding them as her agent.
This action was brought to recover possession of the
mules.
LESSON XXXVII
(i) Esmay v. Fanning, 9 Barb. (N. Y.) 176. In
June, Esmay had a carriage in storage at the livery
stable of George L. Crocker. From time to time,
he loaned it to Fanning. About the first of Novem-
ber of the same year, Fanning had the carriage and
was asked by Esmay to return it to him. Instead
of returning it to him, as requested, Fanning took the
carriage to the livery stable of Crocker and left it.
This action was brought by Esmay for the value of
the carriage, on the ground that it had not been re-
delivered in accordance with the request of the
plaintiff.
CASES ON BAILMENTS 135
(2) Wentworth v. McDuffie, 48 N. H. 402.-
McDuffie hired a horse of Wentworth to drive from
Rochester to Dover. The horse was driven by Mc-
Duffie to Hoyt's, two miles from the point agreed
upon. Upon his return to Rochester, it was found
that the horse was exhausted and sick, and he died
about a half hour later. This action was brought
against McDuffie for the value of the horse.
(3) Claflin v. Meyer, 75 N. Y. 260. In this case
the plaintiff delivered to the defendant, who was a
warehouseman, certain goods to be stored for a
certain consideration in money. When the plaintiff
asked the defendant for the goods so stored, he was
told by the defendant that the goods could not be
returned as they had been stolen. This action was
brought for the value of the goods. The plaintiff
made no attempt to prove that the warehouseman
was negligent.
(4) Hunt v. Wyman, 100 Mass. 198. This was
an action for the price of a horse. Plaintiff had the
horse for sale and agreed to let defendant take it
and try it ; if he did not like it, he was to return it, on
the night of the day he took it, in as good condition
as he got it. Almost as soon as the horse was de-
livered to defendant's servant, it escaped from him,
without the servant's fault, and was injured so that
the defendant could not try it. The horse was not
returned in the time stated.
(5) Fisher v. Kyle 9 27 Mich. 454. The defendant
hired a horse of the plaintiff to drive to a certain
136 CASES ON BAILMENTS
place. He drove beyond the place stated and the
horse fell dead while being driven. It was shown
that there was no negligence on the part of the de-
fendant. This action was brought to recover the
value of the horse.
(6) Smith v. Meegan, 22 Mo. 150. The defend-
ant took plaintiff's boat to make certain repairs
upon it. After making the repairs, defendant
launched it in the river at a time and under circum-
stances of great danger, which should have been
foreseen and which resulted in the destruction of the
boat. This action was brought to recover its value.
(7) Tucker v. Taylor, 53 Ind. 93. The defendant
was a mechanic who received a wagon from the
plaintiff to repair. It was agreed between them
that the defendant should receive for his labor the
use of the wagon and a horse with which to take a
certain journey. After the work was completed,
the defendant permitted the owner to take the wagon,
with the understanding that it was to be returned
at a later date, with a horse, so that the defendant
could make the journey. The owner having failed
to furnish the horse and wagon, the defendant as-
serted his lien and sold the wagon. This action was
brought by the original owner to recover the wagon.
LESSON XXXVIII
EXCEPTIONAL CONTRACTS OF BAILMENT
INNKEEPERS
65. DEFINITION.
66. GUEST.
67. LIABILITY.
68. LIEN.
65. Definition. An innkeeper is one who makes
a continuing offer to the public to furnish entertain-
ment in the form of food and lodging for a compen-
sation. He differs from the boarding-house keeper
in that he must receive any one who may ask for
entertainment, except one who would injure his
business, or one who applies after all available ac-
commodations have been spoken for, while the
boarding-house keeper takes only those with whom
he may care to contract. It has been held that
the operators of Pullman cars cannot be held liable
as innkeepers, for though the service is similar to
that rendered by innkeepers, the conditions under
which this service is rendered are very different from
those under which the innkeeper conducts his busi-
ness, and the chance of property loss may be very
much greater.
137
138 EXCEPTIONAL BAILMENTS
66. Guest. One who partakes of the hospitality
offered by an innkeeper is called a guest. This does
not apply to one who has been invited to accept en-
tertainment without compensation. A person be-
comes a guest immediately upon turning his baggage
over to a hotel porter at a railway station, or at any
other place, and continues as a guest until he has
permanently withdrawn his baggage from the cus-
tody of the innkeeper or his servants, or until he has
turned his baggage over to the innkeeper to be stored
and has left the hotel. He may leave the hotel
temporarily and still continue a guest providing he
is paying for his room.
67. Liability. - The 'innkeeper is liable for all
losses of baggage sustained by guests, except those
which occur through carelessness of the guest or by
Act of God. His liability covers loss through dis-
honesty of his servants or other guests. Some states
have passed a statute modifying the common law
regarding the liability of the innkeeper for the bag-
gage of his guests, on the ground that the common
law rule, which is here stated, is too severe when
modern methods of conducting a hotel are taken into
consideration.
The innkeeper may make reasonable requirements
regarding the care of his guests' baggage, and he
usually gives notice to the guest that he will be re-
sponsible for valuables only when they have been
given him personally to be cared for in the office
where facilities are provided for their safe-keeping.
CASES INNKEEPERS 139
Such a notice must be posted in a conspicuous place,
and it must be reasonably certain that it has been
brought home to the guest. All property of the
guest that is necessary or proper may be kept in
his room, but he must comply with all reasonable
regulations limiting the innkeeper's liability for
valuables.
68. Lien. Since the innkeeper is generally re-
quired to receive any one who asks for entertainment,
he may exact payment in advance, or he may claim a
lien for his charges on the property which his guest
brings to the inn. His lien is like that of any bailee,
in that it continues only so long as he keeps the prop-
erty in his possession. If he surrenders it to the
guest, he loses his right of lien. The innkeeper is
liable only as any other bailee for the baggage left
with him after the owner has ceased to be a guest at
the hotel.
LESSON XXXIX
69. CASES ON THE LAW OF INNKEEPERS
(i) Fay v. Pacific Improvement Co., 93 Cal. 253. -
The improvement company was the .owner of the
Hotel Del Monte and the plaintiff who, while a guest
of the inn, lost jewelry, clothing, and other personal
property needed for her personal use, in a fire which
destroyed the hotel. The defendant claimed that, at
the time the plaintiff registered at his hotel, she had
asked for rates and had been quoted a special price
140 CASES INNKEEPERS
per week for her entertainment, and was, therefore,
a boarder and not a guest. It was further claimed
by the hotel owner that the value of the jewelry lost
could not be recovered. The cause of the fire was
probably the imperfection of the batteries which
supplied the bells with electricity.
(2) Kisten v. Hildebrand, 9 B. Monroe (Ky.) 72. -
In this case the defendant, Hildebrand, kept a
boarding house and occasionally entertained tran-
sients. The plaintiff was a regular boarder. The
plaintiff's trunk was broken into and a large sum of
money stolen. This action was brought to hold
Hildebrand liable as an innkeeper.
(3) De Waldv. Bowell, 2 Ind. App. 303. Bowell
was the owner of the Ross House, and Caswell, a