TREATISE

ON THE

LAW OF BAILMENTS.

CHAPTER I.

1

ON BAILMENTS.

§ 1. THE delivery of goods in trust for a specific purpose, termed a bailment, is a species of contract frequently implied by law. The contract results from the delivery of the goods for a particular use or purpose. According to Mr. Justice Blackstone, "Bailment, from the French bailler, to deliver, is a delivery of goods in trust upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee." According to Sir William Jones, it is "a delivery of goods in trust on a contract, expressed or implied, that the trust shall be duly executed, and the goods redelivered as soon as the time or use for which they were bailed shall have elapsed or be performed." This definition, accurate so far as most kinds of bailment are concerned, has been criticised as defective, because it does not include chattels delivered for sale, or under such circumstances that a return of them is not contemplated. Indeed, it is not easy to express in a single sentence all those conditions, and those only which accompany every case of bailment. Mr. Justice Story defines bailment as "a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust."

3

On the other hand, Kent gives this definition: Bailment is a delivery of goods in trust, upon a contract expressed or implied that the 1 2 Black. Comm., 452. • Jones on Bailm., 117. 3 Story on Bailm.. § 2.

trust shall be duly executed and the goods restored by the bailee as soon as the purpose of the bailment shall be answered.'

§ 2. These definitions agree in nearly all essential particulars, and disagrec.in two or three respects. Jones and Kent assume that the property is to be returned, while Blackstone and Story include contracts under which no such return is contemplated. This is not merely a difference in the form of expressing the same meaning. Story intends to include among contracts of bailment a delivery of goods for sale; and Kent intentionally limits his definition so as to exclude that species of contract.

A delivery of merchandise to a factor for sale constitutes the relation of principal and agent; but the right of the principal to prescribe the terms and time of the sale gives to the contract, expressed or implied between the parties, the elements of at least one species of bailment. If the owner directs the factor to hold the goods until further orders, the relation of the parties thereupon arising can hardly be distinguished from the relation subsisting between bailor and bailee. There are also instances of the delivery of goods under a commission, not to speak of the delivery of goods to a carrier for a purchaser residing at a distance, in which a return of the property is not contemplated.3

A perfect definition ought to include everything essential in every contract of bailment, and should exclude everything which is not essential. Among other things, it should contain a description of the kind of property which may be the subject matter of the contract. In general terms, it may be said that the delivery of goods or any other species of personal estate for use, keeping or on some other trust, where the general property does not pass, creates a bailment. A delivery of chattels upon a sale made on condition that the title shall pass on the payment of the purchase money at a future day, is something more than a bailment; it gives the buyer a conditional title. If the contract give the buyer a definite credit or a reasonable time within which to pay, it gives him a transferable interest in the chattels until the credit expires, and the property in them as soon as he pays the price.5

12 Kent's Comm., 558.

2 Per Lord Holt, in Coggs v. Bernard, 2 Ld. Raym., 917, 918; Morss v. Stone, 5 Barb., 516.

3 Jourdan v. Reed, 1 Clarke (Iowa), 135; the case of a delivery of gold to be delivered to the bailor's wife.

4 Hasbrouck v. Lounsbury, 26 N. Y., 598.

Bailey v. Colby, 34 N. H., 29; Vincent v. Cornell, 13 Pick., 294. The contract gives no title where the goods are delivered on a condition that they are to remain the seller's property till paid for: Ballard v. Burgett, 40 N. Y., 314; Austin v. Dye, 46 N. Y., 500; Cole v. Mann, 62 N. Y., 1.