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his lien for storage; provided, that no property except perish-
able property shall be sold, under the provisions of this sec-
tion, upon which storage charges shall not be due and unpaid
for one year at the time of such sale.

History: Enacted March 31, 1891, Stats, and Amdts. 1891, p.

470.

See Kerr's Cyc. C. C. for 4 pars, annotation.

125 C. 593, 595, 599, 58 P. 175 (construed).

As to sales of property stored to pay liens thereon, except
perishable goods and baggage or luggage, see Kerr's Cyc. C. C.
§§ 2827, 2898, and 3000 to 3011 and notes.



998



Tit.III.ch.II,art.IIIa.] WAREHOUSE RECEIPTS. §1858



ARTICLE Ilia.
WAREHOUSEMEN.



[This article, including §§ 1858-1858f was ^^^^f X^'stL^'Za
mission as a part of article III. Act of March 16, 1901, Stats, and

A™ 1900-l' PP. 409-411. held — "^-^^-^^l^^^.^J^^^/'^el
ante- Commissioner Davis procured a re-enactment of these sec
trons'Jmproperly designating them as "Chapter IHa—March 21,
1905, Stats, and Amdts. 1905, pp. 611-613.]

5 1858 Warehouse receipts, when must not be issued.

1858a. Property not to be removed without consent m writing.
S 1858b Warehouse receipts, classification and effect of.
n858c' indorsement on negotiable receipt of property delivered.
I 1858d. Non-negotiable receipts and their effect.
§ 1858e. Liability for loss by fire.
§ 1858f. Penalties and liabilities.

§ 1858. WAREHOUSE RECEIPTS, WHE!S^ MIST >0T BE

ISSUED. A warehouseman, wharfinger, or other person doing
a storage business must not issue any receipt or voucher for
any merchandise, grain, or other product or thing of value,
to any person purporting to be the owner thereof, nor to any
person as security for any indebtedness or for the perform-
ance of any obligation, unless such merchandise, grain, or
other product, commodity, or thing has been, in good faith,
received by such warehouseman, wharfinger, or other person,
and is in his store or under his control at the time of issuing
his receipt; nor must any second receipt for any such prop-
erty be issued while a former receipt for any part thereof
is outstanding and uncanceled.

History: Enacted March 21, 1905: see introductory note.

1 C. A. 488, 491 (erroneously cited as "p. 799"), 82 P. 686 (same
^'IT^to whether warehouseman's receipt is conclusive against

him, see 100 A. D. 243. 244. T'.,-r-« Cvc C C

As to who may issue warehouse receipts, see Keirs C>c. C. c.

§ 1858. note.

999



§§ 1858a-1858c CIVIL CODE. [Div.III,Pt.IV.

§ 1858a. PROPERTY NOT TO BE REMOVED WITHOUT

CONSENT IN WRITING. No warehouseman, wharfinger, or
other person must sell or encumber, ship, transfer, or remove
beyond his immediate control any property for which a
receipt has been given, without the consent in writing of the
person holding such receipt plainly indorsed thereon in ink.

Hi8tur> : i;r\.i;'t;d March 21, 1905; see introductory note.

See Kerr's Cyc. C. C. for 2 pars, annotation.

§ 1858b. WAREHOUSE RECEIPTS, CLASSIFICATION

AND EFFECT OF. Warehouse receipts for property stored
are of two classes: first, transferable or negotiable; and sec-
ond, non-transferable or non-negotiable. Under the first of
these classes the property is transferable by indorsement of
the party to whose order such receipt was issued, and such
indorsement is a valid transfer of the property represented
by the receipt, and may be in blank or to the order of another.
All warehouse receipts must distinctly state on their face
for what they are issued and its brands and distinguishing
marks and the rate of storage per month or season, and, in
the case of grain, the kind, the number of sacks, and pounds.
If a receipt is not negotiable, it must have printed across
its face, in red ink, in bold, distinct letters, the word "Non-
negotiable."

History: Enacted March 21, 1905; see introductory note.

See Kerr's Cyc. C. C. for 15 pars, annotation.

As to effect on warehouseman of recitals in receipts, see 19
L. 302.

As to receipts of warehouseman, whether conclusive as to
question of quality, see 100 A. D. 243.

As to warehouse receipts, their transfer and negotiability,
see 84 A. D. 752, 754, 3 A. S. 200.

As to warehouseman receipts in general, see 7 L. 529.

§ 1858c. INDORSEMENT ON NEGOTIABLE RECEIPT OF
PROPERTY DELIVERED. If a negotiable receipt is issued
for any property, neither the person issuing it nor any other
person into whose care or control the property comes must
deliver any part thereof without indorsing on the back of the
receipt in ink, the amount and date of the delivery; nor can

1000



Tit.III,ch.II,art.IIIa.] LOSS by fire. §§ I858d-1858f

he be allowed to make any offset, claim, or demand other
than is expressed on the face of the receipt, when called
upon to deliver any property for which it was issued.

History: Enacted March 21, 1905; see introductory note.

As to non-negotiable warehouse receipts, see Kerr's Cyc. C. C.
§ 1858c, note.

§ 1858d. NON-NEGOTIABLE RECEIPTS AND THEIR EF-
FECT. If a non-negotiable receipt is issued for any prop-
erty, neither the person issuing nor any other person in
whose care or control the property comes must deliver any
part thereof, except upon the written order of the person
to whom the receipt was issued.

History: Enacted March 21, 1905; see introductory note.

§ 1858e. LIABILITY FOR LOSS BY FIRE. No warehouse-
man or other person doing a general storage business is
responsible for any loss or damage to property by fire while
in his custody, if he exercises reasonable care and diligence
for its protection and preservation.

History: Enacted Marcli 21, 1905; see introductory note.

See Kerr's Cyc. C. C. for 3 pars, annotation.

Act of God, as to wliat constitutes, see Kerr's Cyc. C. C.
§§1511, 2194 and notes; 1 W. & P. 118-126.

§1858f. PEJfALTIES AND LIABILITIES. Every ware-
houseman, wharfinger, or other person who violates any of
the provisions of section eighteen hundred and fifty-eight to
eighteen hundi'ed and fifty-eight e, inclusive; is guilty of a
felony, and, upon conviction thereof, may be fined in a sum
not exceeding five thousand dollars, or imprisoned in the
state prison not exceeding five years, or both. He is also
liable to any person aggrieved by such violation for all dam-
ages, immediate or consequent, which he may have sustained
therefrom, which damages may be recovered by a civil action
in any court of competent jurisdiction, whether the offender
has been convicted or not.

History: Enacted March 21, 1905; see introductory note.

1001



§ 1859 CIVIL CODE. [Div.III.Pt.IV.



ARTICLE IV.

INNKEEPERS.

§ 1859. Innkeeper's liability.

§ 1860. How exempted from liability.

§ 1861. Liicn for 'liarges on baggage.

§1862. Unclaimed baggage may be sold at auction; notice of.

§ 1863. Keepers to post rates of charges.

§ 1859. INKEEPER'S LIABILITY. The liability of an inn-
keeper, hotel keepei', boarding-house and lodging-house
keeper, for losses of or injuries to personal property, other
than money, placed by his guests, boarders, or lodgers under
his care, is that of a depositary for hire;

[Amonnt of liability.] Provided, however, that in no case
shall such liability exceed the sum of one hundred dollars
for each trunk and its contents, fifty dollars for each valise
or traveling-bag and contents, and ten dollars for each box,
bundle, or package and contents, so placed under his care,
unless he shall have consented in writing with the owner
thereof to assume a greater liability.

History: Enacted March 21, 1872; amended March 12, 1895,
Stats, and Amdts. 1895, p. 49.

See Kerr's Cyc. C. C. for 39 pars, annotation.

93 C. 253, 261, 262, 27 A. S. 198, 26 P. 1099, 1100, 1101, 28 P.
943, 16 L. 188 (construed); 96 C. 490, 492, 493, 31 P. 560 (con-
strued).

As to compulsory service by innkeepers, see 15 L. 321.

As to contributory negligence of guest, and when relieves
innkeeper from liability, see 41 A. R. 777.

As to definition of inn, see 6 L. 483.

As to liability of innkeepers, see 35 A. D. 125.

As to liability of innkeepers for goods of their guests, see
18 A. R. 130; 99 A. S. 577.

As to liability of innkeepers for loss of property; for what
property; for property lost or stolen, when not liable, see 12
L. 382.

As to refusing to receive guests, see 19 A. S. 584.

As to responsibility of innkeeper; liability as insurer; as
bailee, see 6 L. 483, 809; 12 L. 382.

1002



il



Tit.III,ch.II,art.IV.] exemption— lien. §§ 1860-1861

As to sleeping-car companies as innkeepers, see 21 L. 289.

As to who are guests, see 14 A. D. 258, 259; 46 A. D. 119.

As to who are guests or innkeepers, and when they cease to
be such, see 62 A. D. 586.

As to wlio are innkeepers and their respective riglits,
remedies, and obligations, see 7 A. D. 449, 458.

As to what goods of guest innkeeper is liable for, see 69 A.
D. 221, 226; 18 A. R. 130-136.

As to what is an inn or tavern, see 35 A. D. 137.

As to when relation of innkeepers and guests exists, see 6 L.
483, 809; 12 L. 382.

§ 1860. HOW EXEMPTED FROM LIABILITY. If an inn-
keeper, hotel keeper, boarding-house or lodging-house keeper,
keeps a fire-proof safe, and gives notice to a guest, boarder,
or lodger, either personally or by putting up a printed notice
in a prominent place in the office or the room occupied by
the guest, boarder, or lodger, that he keeps such a safe and
will not be liable for money, jewelry, documents, or other
articles of unusual value and small compass, unless placed
therein, he is not liable, except so far as his own acts shall
contribute thereto, for any loss of or injury to such articles,
if not deposited with him to be placed therein, nor in any
case more than the sum of two hundred and fifty dollars for
any or all such property of any individual guest, boarder, or
lodger, unless he shall have given a receipt in writing there-
for to such guest, boarder, or lodger.

History: Enacted March 21, 1872; amended March 12, 1895,
Stats, and Amdts. 1895, p. 50.

See Kerr's Cyc. C. C. for 3 pars, annotation.

§ 1861. LIE?f FOR CHARGES ON BAGGAGE. Hotel, inn,
boarding-house and lodging-house keepers shall have a lien
upon the baggage and other property of value of their guests,
or boarders, or lodgers, brought into such hotel, inn, or
boarding or lodging house, by such guests, or boarders, or
lodgers, for the proper charges due from such guests, or
boarders, or lodgers, for their accommodation, board and
lodging, and room rent, [and] such extras as are furnished
at their own request, with the right to the possession of such

1003



§ 1862 CIVIL CODE. [Div.III,Pt.IV.

baggage or other property of value, until all such charges
are paid.

History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 78.

See Kerr's Cyc. C. C. for 3 pars, annotation.
As to lien of innkeeper, see 57 A. R. 31.

§1802. t UNCLAIMED BAGGAGE MAT BE SOLD AT
AUCTION; NOTICE OF. Whenever any trunk, carpet-bag,
valise, box, bundle, or other baggage has heretofore come,
or shall hereafter come into the possession of the keeper of
any hotel, inn, boarding or lodging house, as such, and has
remained or shall remain unclaimed for the period of six
months, such keeper may proceed to sell the same at public
auction, and out of the proceeds of such sale may retain
the charges for storage, if any, and the expenses of adver-
tising and sale thereof; but no such sale shall be made until
the expiration of four weeks from the first publication of
notice of such sale in a newspaper published in or nearest
the city, town, village, or place in which said hotel, inn,
boarding or lodging house is situated. Said notice shall be
published once a week, for four successire weeks, in some
newspaper, daily or weekly, of general circulation, and shall
contain a description of each trunk, carpet-bag, valise, box,
bundle, or other baggage, as near as may be; the name of
the owner, if known; the name of such keeper, and the time
and place of sale; and the expenses incurred for advertis-
ing shall be a lien upon such trunk, carpet-bag, valise, box,
bundle, or other baggage, in a ratable proportion, according
to the value of such piece of property, or thing, or article
sold ; and in case any balance arising from such sale shall not
be claimed by the rightful owner within one week from the
day of said sale, the same shall be paid into the treasury of
the county in which such sale took place; and if the same
be not claimed by the owner thereof, or his legal representa-
tives, within one year thereafter, the same shall be paid into
the general fund of said county.

History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 78.

1004



Tit.III,ch.II,art.lV.] posting RATES. ETC. § 1863

§ 1863. KEEPERS TO POST RATES OF CHARGES. Every
keeper of a hotel, inn, boarding or lodging house, shall post
in [a] conspicuous place in the office or public room, and in
every bedroom of said hotel, boarding-house, inn, or lodging-
house, a printed copy of this section, and a statement of
charge or rate of charges by the day, and for meals or items
furnished, and for lodging. No charge or sum shall be col-
lected or received by any such person for any service not
actually rendered, or for any item not actually delivered,
or for any greater or other sum than he is entitled to by
the general rules and regulations of said hotel, inn, board-
ing or lodging house. For any violation of this section, or
any provision herein contained, the offender shall forfeit to
the injured party three times the amount of the sum charged
in excess of what he is entitled to.

History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 79;
amended by Code Commission, Act March 16. 1901 Stats, and
Amdts. 1900-1. p. 411, held unconstitutional, see history, S 4
ante.



1005



§§ 1864, 1865 CIVIL CODE. [Div.III.Pt.IV.



ARTICLE V.

FINDING.

§ 1864. Obligation of finder.

§ 1865. Finder to notify owner. Duty where owner not known.

§1866. /""-limant to prove ownersliip.

§ 1867. Reward, etc., to finder.

§ 1868. Finder may put thing found on storage.

§ 1869. When finder may sell the thing found.

§ 1870. How sale is to be made.

§ 1871. Property vests in finder, when. Publication in certain

cases. Liability of finder to owner.

§ 1872. Thing abandoned.

§ 1864. OBLIGATIOJf OF FINDER. One who finds a thing
lost is not bound to take charge of it, but if he does so he is
thenceforward a depositary for the owner, with the rights
and obligations of a depositary for hire.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

As to rights and obligations of depositary for hire, see Kerr's
Cyc. C. C. §§ 1851 et seq. and notes.

§1865. FINDER TO NOTIFY OWNER. DUTY WHERE
OWNER NOT KNOWN. If the finder of a thing, other than
a domestic animal, takes possession thereof, or if a person
saves any such animal from drowning or starvation, he must,
within a reasonable time, inform the owner thereof, if
known, and make restitution to him upon demand, without
compensation, except a reasonable charge for saving and
caring therefor. If the owner is not known to such finder
or saver, he must, within five days, file an affidavit with the
justice of the peace of the county whose office is nearest to
the place of such finding or saving, particularly describing
the property and the time, place, and circumstances under
which it was found or saved. Such justice must then sum-
mon three disinterested persons to appraise the property.
They, or a majority of them, must make two lists of the

1006



Tit.III,ch.II,art.V.] CLAIMANT— finder. §§ 1866-1869

valuation and description of the property, by them verified,
and deliver one of such lists to the justice of the peace,
to be kept by him on file in his office, and the other list
must be delivered to such finder or saver, who must, within
five days thereafter, cause it to be filed for record in the
office of the county recorder of the county, who must record
it in a book known as the "Estray and Lost Property Book."

History: Enacted March 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 411, held
unconstitutional, see history, § 4 ante; re-enacted March 21,
1905, Stats, and Amdts. 1905, p. 613.

For Commissioners' comment on this section, see Kerr's Cyc.
C. C. § 1865, note.

§ 1866. CLAIMANT TO PROVE OWNERSHIP. The finder
of a thing may, in good faith, before giving it up, require
reasonable proof of ownership from any person claiming it.

History: Enacted March 21, 1872.

§1867. REWARD, ETC., TO FINDER. The finder of a
thing is entitled to compensation for all expenses necessarily
incurred by him in its preservation, and for any other service
necessarily performed by him about it, and to a reasonable
reward for keeping it.

History: Enacted March 21, 1872.

§ 1868. FINDER MAY PUT THINO FOUND ON STORAGE.

The finder of a thing may exonerate himself from liability
at any time by placing it on storage with any responsible
person of good character, at a reasonable expense.

History: Enacted March 21, 1872.

For Commissioners' comment on this section, see Kerr's Cyc.
C. C. § 1868, note.

§ 1869. WHEN FINDER MAY SELL THE THING FOUND.

The finder of a thing may sell it, if it is a thing which is
commonly the subject of sale, when the owner cannot, with
reasonable diligence, be found, or, being found, refuses upon

1007



§§ 1870, 1871 CIVIL CODE. [Div.III.Pt.IV.

demand to pay the lawful charges of the finder, in the fol-
lowing cases:

1. When the thing is in danger of perishing, or of losing
the greater part of its value; or,

2. When the lawful charges of the finder amonnt to two-
thirds of its value.

liistory: Enacted March 21, 1872.
See Kerr's Cyc. C. C. for 2 pars, annotation.

§ 1870. HOW SALE IS TO BE MADE. A sale under the
provisions of the last section must be made in the same man-
ner as the sale of a thing pledged.

History: Enacted March 21, 1872.

As to sale of pledge, see Kerr's Cyc. C. C. §§ 3000 et seq. and
notes.

§ 1871. PROPERTY VESTS IN FINDER, WHEN. PUBLI-
CATION IN CERTAIN CASES. LIABILITY OF FINDER TO
OWNER. If no owner appears within six months after such
finding or saving and offers reasonable proof of his owner-
ship, and compensates, or in good faith offers to compensate,
the finder or saver for the expense necessarily incurred by
him, then such property vests in such finder or saver, unless
it is of greater value than twenty dollars. If of such greater
value, he must publish a copy of such verified list for three
successive weeks in some newspaper of general circulation
published in the county, and if the owner does not, within
one year after the completion of such publication, prove the
property and pay, or in good faith offer to pay, all charges
thereon, the title thereto vests in such finder or saver. If
the finder or saver of property does not comply with the
provisions of section hundred and sixty-five, or if, though he
does so comply, he refuses to surrender the property to an
owner who has made reasonable proof of ownership, and
paid, or in good faith offered to pay, all legal charges thereon,
he is liable to the owner for double the value of the property,
and the owner may exonerate himself from all liability aris-

1008



Tit.III.Ch.III.] THINGS ABANDONED. §§1872,1878

ing out of such property by surrendering, or offering to sur-
render, it in satisfaction thereof.

History: Enacted Marcli 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 412, held
unconstitutional, see history, § 4 ante; re-enacted March 21,
1905, Stats, and Amdts. 1905, p. 614.

For Commissioners' comment on this section, see Kerr's Cyc.
C. C. § 1871, note.

§ 1872. THING ABANDONED. The provisions of this arti-
cle have no application to things which have been inten-
tionally abandoned by their owners.

History: Enacted March 21, 1872.



CHAPTER III.

DEPOSIT FOR EXCHANGE.

§ 1878. Relations of the parties.

§1878. RELATIONS OF THE PARTIES. A deposit for
exchange transfers to the depositary the title to the thing
deposited, and creates between him and the depositor the
relation of debtor and creditor merely.

History: Enacted March 21, 1872.

As to definition of deposit for exchange, see ante § 1818.

As to loan for exchange, see Kerr's Cyc. C. C. § 1902 and note.



1009



§ 1884 ^ CIVIL CODE. [Div.III,Pt.IV.



TITLE IV.

LOAN.

Chapter I. Loan for Use, §§ 1884-1896.

11. Loan for Exchange, §§ 1902-1906.
m Loan of Money, §§ 1912-1920.

CHAPTER I.
LOAN FOR USE.

§ 1S84. Loan, what.

§ 1885. Title to property lent.

§ 1886. Care required of borrower.

§ 1887. Same. [Of animal for use.]

§ 1888. Degree of skill.

§ 1889. Borrower, when to repair injuries.

§ 1890. Use of thing lent.

§ 1891. Relending forbidden.

§ 1892. Borrower, when to bear expenses.

§ 1893. Lender liable for defects.

§ 1894. Lender may require return of thing lent.

§ 1895. When returnable without demand.

§ 1896. Place of return.

§ 1884. LOAN, WHAT. A loan for use is a contract by
which one gives to another the temporary possession and use
of personal property, and the latter agrees to return the
same thing to him at a future time, without reward for its
use.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 8 pars, annotation.

As to difference between bailment and sale, see 10 A. D. 490;
2 A. S. 711; 94 A. S. 216.

As to distinction between loan and deposit, see 19 Encyc. L.
465.

As to distinction between loan and gift, see 19 Encyc. L. 462
and cases cited in notes.

As to distinction between loan and hiring, see 19 Encyc. L.
463.

As to distinction between loan and pledge, mandate or
mutuum, see 19 Encyc. L. 464 and notes.

1010



Tit.IV.ch.L] TITLE, CARE, SKILL. §§1885-1889

§ 1885. TITLE TO PltOPEKTY LENT. A loan for use does
not transfer the title to the thing; and all its increase during
the period of the loan belongs to the lender.

History: Enacted March 21, 1872.
See Kerr's Cyc. C. C. for 6 pars, annotation.

§ 1886. CARE KEQIIRED OF BORROWER. A borrower
for use must use great care for the preservation in safety
and in good condition of the thing lent.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

As to liability of gratuitous bailee, see 25 A. D. 598: 97 A. D.
62; 38 A. S. 779; 10 L. 481.

Borrower is not responsil)le for reasonable wear and tear of
what is loaned, or for its utter loss or damage without blame
or neglect attributable to himself. — 5 Cyc. 188 and cases cited in
notes 37, 38, and 39.

Responsibility for slight neglect. — See 3 Encyc. L. 746 and
cases cited in note 1; also 5 Cyc. 188.

§ 1887. SAME. [OF ANIMAL FOR USE.] One who bor-
rows a living animal for use, must treat it with great kind-
ness, and provide everything necessary and suitable for it.

History: Enacted Marcli 21, 1872.

As to depositary of living animals for keeping, see Kerr's
Cyc. C. C. § 1834 and note.

As to duty of borrower of horse witlujut compensating for
its use, see Kerr's Cyc. C. C. § 1887, note.

§ 1888. DEGREE OF SKILL. A borrower for use is bound
to have and to exercise such skill in the care of the thing
lent as he causes the lender to believe him to possess.

History: Enacted March 21, 1872.
As to performance of service, compare with § 1976, post.

§ 1889. BORROWER, WHEN TO REPAIR INJURIES. A

borrower for use must repair all deteriorations or injuries

1011



§§ 1890-1893 CIVIL CODE. tDiv.III,Pt.IV.

to the thing lent, which are occasioned by his negligence,
however slight.

History: Enacted March 21, 1872.

§ 1890. USE OF THING LENT. The borrower of a thing
for use may use it for such purposes only as the lender
might reasonably anticipate at the time of lending.
History: Enacted March 21, 1872.

As to indemnifying depositary, see ante § 1833.
As to liability of bailee for misuser, see 12 A. D. 619.
As to loan of money for exchange, see post §§ 1902, 1906.
"Lender has right to prescribe terms and conditions," see 19
Encyc. L. 466 and cases cited in notes.

§1891. RELENDING FORBIDDEN. The borrower of a
thing for use must not part with it to a third person, without
the consent of the lender.

History: Enacted March 21, 1872.

As to lender's right to prescribe terms and conditions, see 19
Encyc. L. 466 and cases cited.

As to power of bailees to make sale, see 66 A. D. 758.

As to purchaser from one having no authority to sell getting
no title, see 3 A. D. 345; 25 A. D. 604; 32 A. D. 541; 51 A. D. 607.



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