1767. Question of law or fact-Gen- 1782. Parol evidence-Admissibility erally. 1768. What may be introduced or considered-Generally. to vary writing. 1783. Grounds of action against bailees. 1769. Bailment-Sale or gift-Dis- 1784. Breach of duty-Negligencetinctions. Burden of proof. 1770. Bailment-Sale or gift-Bur. 1785. Burden of proof as to negli den of proof. 1771. Bailment-Sale or gift-Pre sumptions. 1772. Bailment-Sale or gift-Question of law or fact. 1773. Kind or class of bailment Generally. 1774. Kind or class of bailmentBurden of proof. 1775. Kind or class of bailment Question of law or fact. 1776. Kind or class of bailment What may be introduced or 1792. Damages-Actions against third parties. 1777. Nature and elements-Deliv- 1793. Damages-Who may give evi ery and acceptance. 1778. Sufficiency, validity and terms of contract-Burden of 1779. Sufficiency, validity and terms dence. 1794. Evidence in particular classes -Generally. 1795. Evidence in particular classes -Gratuitous bailments. 1796. Evidence in particular classes -Warehousemen. of contract-Question of law 1797. Evidence in particular classes or fact. -Innkeepers. 1798. Pledges. $1764. Meaning of term.-A bailment is a delivery of goods or personal property, by one person to another, in trust for the execution of a special object upon, or in relation to, such property, beneficial either to the bailor or bailee or both, and upon a contract, express or implied, to perform the trust and carry out such object, and thereupon either to redeliver the goods to the bailor or otherwise dispose of the same in conformity with the purpose of the trust. Sir William Jones has divided bailments into five sorts, viz.: Depositum, or deposit; mandatum, or commission without recompense; commodatum, or loan for use without payment; pignori acceptum, or pawn; locatum, or hiring, which is always with reward. This last is subdivided into locatio rei, or hiring by which the hirer gains a temporary use of the thing; locatio operis faciendi, when something is to be done to the thing delivered; locatio operis mercium vehendarum, when the thing is merely to be carried from one place to another. There are cases where the benefits derived from the contract are reciprocal: there is an advantage to both parties. In the case of a pledge given on a loan of money or to secure the payment of a debt, the one party gains a credit and the other security by the contract. And in a bailment for hire, one party acquires the use of the thing bailed and the other the price paid therefor: the advantage is mutual. So in a bailment for labor and service, as when one person delivers material to another to be manufactured, the bailee is paid for his service and the owner receives back his property enhanced in value by the process of manufacture. In these and like cases the parties stand upon an equal footing: there is a perfect mutuality between them. And therefore the bailee can only be held responsible for the use of ordinary care and common prudence in the preservation of the property bailed. A bailee for hire is supposed to take such care of property as a reasonably prudent man would take of his own. The common law does not recognize the rule of the civil law, that the bailor for hire is bound to keep the thing in repair, and in the absence of provision the question as to which party is bound to repair depends largely on custom and usage.3 The borrower, on the other hand, who receives the entire benefit of the bailment, must use extraordinary diligence in taking care of the thing borrowed, and is responsible for even the slightest neglect. He must apply it only to the very purpose for which it was borrowed, cannot permit any other person to use it, cannot keep it beyond the 1 Black Law Dict.; Schouler Bailments, 2; Hale Bailments, 3. 2 Black Law Dict.; Jones Bailments, 36. Bouv. Law Dict. (Rawle's ed.). time limited and cannot keep it as a pledge for demands otherwise arising against the bailor.* § 1765. Burden of proof-Generally.-As to the burden of proof in question on the law of bailments there is a diversity of opinion among the authorities. Much of this conflict arises on account of the courts failing to distinguish between the duty of going forward with evidence and the duty of establishing the case. The burden of proof on such matters is more particularly considered under the different subjects in the chapter.** But, as a general rule it may be said. that the burden is upon the plaintiff or moving party to establish his case, although the burden of going forward with evidence in order to escape defeat, as, for instance, where a presumption of negligence arises, may at times be upon the defendant." 8 § 1766. Presumptions-Generally.-The following presumptions among others, have been indulged in cases of bailments: that goods or articles were in proper condition when received by the bailee," a presumption of proper diligence when it was shown that the bailee had taken the same care of the property that he did of his own property, and a presumption of negligence where the property was received in good condition and either not returned at all or returned in a bad condition. A presumption also that the bailee has acted negligently arises upon the bailor showing a loss or damaged condition that is out 'Bouv. Law Dict. (Rawle's ed.). **See ante, Vol. I, Ch. VII. * James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 Am. St. 293; Malaney v. Taft, 60 Vt. 571, 15 Atl. 326, 6 Am. St. 135; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215; Willett v. Rich, 142 Mass. 356, 7 N. E. 776; Cooper v. Barton, 3 Campb. 5, note; Lancaster Mills v. Merchants' &c. Co., 89 Tenn. 1, 24 Am. St. 586 and note; Higman v. Camody, 112 Ala. 257, 57 Am. St. 33, and note. *Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999, 43 Am. St. 725; Haas v. Taylor, 80 Ala. 459; 2 So. 633; Knights v. Piella, 111 Mich. 9, 69 N. W. 92, 66 Am. St. 375; see also, Treacy v. Barclay, 9 Ky. L. R. 707, 6 S. W. 433; Shearer v. Gunderson, 60 Minn. 525, 63 N. W. 103, and authorities cited in last note, supra. 'Higman v. Camody, 112 Ala. 267, 20 So. 480, 57 Am. St. 33. Erie Bank v. Smith, 3 Brewst. (Pa.) 9; Carlisle &c. Bank V. Graham, 79 Pa. St. 106, 21 Am. R. 49. 'Cumins v. Wood, 44 Ill. 416, 92 Am. Dec. 189; Baren v. Cain, 15 Ill. App. 387; Logan v. Matthews, 6 Pa. St. 417; Simmon v. Sikes, 24 N. Car. 98; but see, Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999, 43 Am. St. 725. of the ordinary and not usual where the requisite degree of care is used.10 § 1767. Question of law or fact-Generally.-Questions as to bailments in many cases are mixed questions of law and of fact. When the question concerns the legal effect of the agreement, or of certain acts under the agreement, or the degree of care which the law requires to be exercised, it is usually one of law for the court.11 When the question is as to what has in fact been done or omitted, or the intention of the parties, or the cause of an act, or whether the care required by law has in fact been exercised, it is ordinarily a question of fact for the jury.12 § 1768. What may be introduced or considered-Generally.-In the law of bailments it may be stated in general that all evidence is admissible which is logically relevant to the issues, unless it comes within one or more of the rules of exclusion. Among the many miscellaneous matters which have been held admissible are the following: It has been held that on a claim by the owner of a yacht against a person in whose care it was left during the winter for safe-keeping, it is competent for the owner to show by an expert that injuries were not the result of ordinary wear and tear.13 So, in a suit against a miller for failing to manufacture out of plaintiff's wheat such flour as could have been manufactured by the exercise of ordinary diligence and skill, evidence of the quality of flour which other millers in the neighborhood were accustomed to manufacture out of the wheat of the kind which plaintiff furnished, was held admissible. On a question of diligence and ordinary care, in the storing and keeping of cotton, it is competent to prove the custom of the place where the con 10 Canfield v. Baltimore &c. R. Co., 93 N. Y. 532, 45 Am. R. 268; Arnot v. Branconier, 14 Mo. App. 431. 11 Watkins v. Roberts, 28 Ind. 167; Brock v. King, 48 N. Car. 45; so if the facts are undisputed and there is but one reasonable inference; see, Mason v. St. Louis Union Stockyards Co., 60 Mo. App. 93; Briggs v. Taylor, 28 Vt. 180; Lyman v. Southern R. Co., 132 N. Car. 721, 44 S. E. 550. 12 Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; First Nat. Bank v. Graham, 79 Pa. St. 106, 21 Am. R. 49; McNabb v. Lockhart, 18 Ga. 495; Skelley v. Kahn, 17 Ill. 170; Citroen v. Adam, 24 N. Y. St. 263, 5 N. Y. S. 669. 13 Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999. 14 McKibben v. Bakers, 40 Ky. 120. tract was made, as to the manner of storing and keeping that article there.15 So, where cotton left with defendant to be ginned was lost, it was held that he might show that he left it under a shed in the gin lot, ready for delivery, in accordance with the usage known to its owner.16 But on the question whether plaintiff could recover for the use of his horse, evidence that he had allowed others to use it about the same time without charging them was held inadmissible.17 $1769. Bailment Sale or gift-Distinctions.-Bailment is to be discriminated from sale. The difference is to be found in the fact that the contract of bailment always contemplates the return to the bailor of the specific article delivered either in its original form or in a modified or altered form, or the return of an article which, though not identical, is of the same class, and is equivalent. But sale never involves the return of the article itself, but only as a general thing, a consideration in money.18 Bailment is to be discriminated from gift in that the latter transaction involves no return or no recompense for the thing transferred.19 § 1770. Bailment Sale or gift-Burden of proof.-Where an article is left at a warehouse under a contract that is apparently one of bailment and the owner sets up that it was a sale and not a bailment, it has been held that the burden is upon him to establish that it was a sale and not a bailment.20 Thus, where a warehouseman received certain grain from the owner upon a written agreement reciting that such warehouseman was to pay the market price per bushel at any time up to a designated date, and that it was held subject to the owner's risk of loss by fire or heating; and the grain was placed in bins with other grain of like quality, but the warehouseman at all "Morehead v. Brown, 51 N. Car. 367; see also, McKibben v. Bakers, 1 B. Mon. (Ky.) 120; ante, Vol. I, §§ 172, 607. "Kelton v. Taylor, 79 Tenn. (11 La.) 264, 47 Am. R. 284; see also, Knowles v. Railroad Co., 38 Me. 55; Conway Bank v. American Ex. Co., 8 Allen (Mass.) 512; Arthur v. St. Paul &c., 38 Minn. 95, 35 N. W. 719. "Harris v. Howard, 56 Vt. 695; see also, Lobenstein v. Pritchett, 8 Kans. 213; ante, Vol. I, § 160. 18 Haskins v. Dern, 19 Utah 89, 56 Pac. 953; Singer Mfg. Co. v. Ellington, 103 Ill. App. 517; Galt, In re, 120 Fed. (U. S.) 64; Barnes v. McCrea, 75 Iowa 267, 39 N. W. 392, 9 Am. St. 473; Donnelly v. Mitchell, 119 Iowa 432, 93 N. W. 369, distinguished from conditional sale; Hale Bailments, 6. 19 Black Law Dict. 20 McGrew v. Thayer, 24 Ind. App. 578, 57 N. E. 262. |