times had on hands sufficient grain of like character and quality to redeliver to all depositors the grain deposited by them, it was held that the bailee, setting up that it was a sale, had the burden of proof as to that fact.21 And where a bailor made a deposit and the bailee set up that it was an absolute gift since the bailor intended to relinquish a right to demand the return of the deposit, it was held the burden of proof was upon the bailee to establish that fact.22

§ 1771. Bailment-Sale or gift-Presumptions.-Where a bailor permits another to deal with the goods as though they were the latter's, a presumption may arise against the former that they are the latter's and he may be estopped to deny it. Thus, where one claiming to be a bailor of certain goods permitted the alleged bailee to go to expense for the care and preservation of the goods as though they belonged to the alleged bailee, it is competent for the latter to prove by way of estoppel that he was a donee and not a bailee of the goods.28 In determining whether a transaction is a sale or a bailment, it has been held that the custom of a warehouseman unrebutted or unmodified by other evidence is not sufficient proof one way or the other.24

§ 1772. Bailment-Sale or gift-Question of law or fact.-The question whether a certain transaction is a sale or a bailment is generally a mixed question of law and fact. In such case the jurors are to determine the questions under the court's instruction.25 But in some instances, as, where the contract is in writing, it may be a question of construction for the court. 26 It is for the jury to determine as a question of fact as to what were the terms of the contract. Thus, it is a question of fact for the jury to determine where a bailor made a deposit whether he intended to relinquish all right to demand its return and so make it an absolute gift.27 But the court determines as a question of law as to what is the legal effect of the agreement.28 If a receipt is given for the property delivered and such receipt does not disclose whether the transaction is a sale or a bailment, proper ex

" McGrew v. Thayer, 24 Ind. App. 69 N. W. 92, 66 Am. St. 375; Selleck 578, 57 N. E. 262. v. Selleck, 107 Ill. 389.

22 Selleck v. Selleck, 107 Ill. 389. 23 Hunt v. Moultrie, 1 Bosw. (N. Y.) 531.

24 Weiland v. Krejnick, 63 Minn. 314, 65 N. W. 631.

25

Knights v. Piella, 111 Mich. 9,

26 Jordan v. Patterson, 67 Conn. 473, 35 Atl. 520; Woodward v. Edmunds, 20 Utah 118, 57 Pac. 848.

"Selleck v. Selleck, 107 Ill. 389. 28 Harris v. Coe, 71 Conn. 157, 41 Atl. 552; Woodward v. Boone, 126 Ind. 122, 25 N. E. 812.

trinsic evidence may be resorted to, and it has been held in such a case, that parol evidence of the general and known course of dealing in the particular business with reference to which the receipt was given, is admissible.29

$1773. Kind or class of bailment Generally.-It has been noted in another section30 that there are several sorts or classes of bailments. We shall now consider how it is to be determined to which class of bailments a certain transfer belongs. It is necessary to determine this because often different liabilities and responsibilities attach to the different classes.

§ 1774. Kind or class of bailment-Burden of proof.-Ordinarily it is said, where one who belongs to one class seeks to relieve himself of liability by placing himself in another class, the burden of proof is on him to prove that fact. Thus, where a carrier set up that his liability was only that of a warehouseman it was held that the burden is on him to prove that fact.31 So also where goods have been deposited with a certain party and he sets up that he is entitled to a lien since he holds them as pledgee, the burden has been held to be on him to establish the fact that he is a pledgee.32 It has been held, however, that in an action against one as a bailee for hire for ordinary negligence, the burden is on the bailor to prove that the bailment is one for compensation, and this seems to be the correct rule where one has acted as bailee in a matter not within the scope of his ordinary occupation." But where the bailment is in the line of the bailee's business, for which he has regularly received compensation, the intention and right to receive compensation will usually be implied. There is at least one jurisdiction whose decisions are contrary to. some of the preceding cases. In that jurisdiction it is held that even where the party sued as a warehouseman under the ordinary contract of a warehouseman

33

"Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311; see also, ante, Vol. I, § 607.

"See ante, § 1764.

"Wardlaw v. Railroad Co., 11 Rich. L. (S. Car.) 337; contra, Gay V. Bates, 99 Mass. 263.

35

"Union Compress Co. v. Nunnally, 67 Ark. 284, 54 S. W. 872.

34 Dart v. Lowe, 5 Ind. 131.

35 Second Nat. Bank v. Ocean Nat. Bank, 11 Blatchf. (U. S.) 362; Kirtland v. Montgomery, 1 Swan (Tenn.) 452; Pattison v. Bank, 4

*Citroen v. Adam, 24 N. Y. St. Thomp. & C. (N. Y.) 96. 263, 5 N. Y. S. 669.

admits the alleged injury to the goods and sets up an agreement that the plaintiff assumed all risks, the burden is still on the plaintiff.36

37

32

$1775. Kind or class of bailment-Question of law or fact.There is a diversity of opinion among the authorities as to whether the determination of the class of bailment to which a particular transaction belongs is a question of fact for the jury or of law for the court. Many authorities hold that the question is one of fact for the jury, since it depends mainly upon the intention of the parties. Thus, it has been held that whether a bailment was gratuitous, or for hire, depends upon the intention of the parties, and such intention is a question of fact.38 The same has been held in the case of an innkeeper. On the other hand it has been said that the question as to the nature of a bailment is one of law for the court.40 It would seem that neither of these views is unqualifiedly correct and that the better rule is that the question is ordinarily a mixed question of law and fact or one of fact for the jury to determine under proper instructions from the presiding judge. There are many respectable authorities holding this view.42 In other words, it is usually for the court to instruct the jury as to what, in law, would bring a case within the one class or the other and for the jury to determine what the facts are; but if the facts and intentions are clear and undisputed, and but one reasonable or legal inference could be drawn the question as to their legal effect would become one of law for the court.43

41

1776. Kind or class of bailment-What may be introduced or considered.-Transactions between the bailor or bailee and third persons having no relation to the case are not, ordinarily, admissible to determine the sort of bailment; this is, ordinarily, to be determined

se Gay v. Bates, 99 Mass. 263.

37 James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 Am. St. 293; see also, Lobenstein V. Pritchett, 8 Kans. 213; Mariner v. Smith, 5 Heisk. (Tenn.) 203.

"Shelden v. Robinson, 7 N. H. 157, 26 Am. Dec. 726.

2 Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. R. 242; Samms v. Stewart, 20 Ohio 69, 55 Am. Dec. 445; Murray v. National Line S. S.

39 Kincheloe v. Priest, 89 Mo. 240, Co., 170 Mass. 166, 48 N. E. 1093. 1 S. W. 235, 58 Am. R. 117.

39 Magee v. Pacific Imp. Co., 98 Cal. 678, 33 Pac. 772, 35 Am. St. 199. 40 First Nat. Bank v. Graham, 79 Pa. St. 106, 21 Am. R. 49.

43 Denver &c. R. Co. v. Peterson, 30 Colo. 77, 69 Pac. 578; Merchants' Nat. Bank v. Gilmartin, 88 Ga. 797, 15 S. E. 831, 17 L. R. A. 322.

45

by the contract between the bailor and bailee.** But where the bailee is regularly in the habit and business, or regularly and knowingly permits his agent to enter into such transactions for him, this may usually be shown. So, to prove that one was liable as a warehouseman and not a mere gratuitous bailee, it is competent to show that in his bill of lading he calls his place a warehouse and reserves the right to charge storage.46 Evidence of custom has also sometimes been held admissible in determining the liability of innkeepers, and evidence of a special contract is admissible.48

47

§ 1777. Nature and elements-Delivery and acceptance. That a transaction may be a bailment there must be a delivery to the bailee, either actual or constructive.49 And it is essential that there be an acceptance of the subject matter, although it may be constructive or implied, as the duties and responsibilities of a bailee cannot be thrust upon a person without his knowledge and against his consent.50 Since a delivery and an acceptance are essential to the contract of bailment these facts must be proved. The burden of proving both delivery and acceptance of a bailment by the bailee is on the bailor.52 It has been held that delivery to the innkeeper may be inferred upon proof of the mere fact that goods were left in the customary way within an inn by a guest.53 So, an established custom of a carrier to receive goods at a certain place may be shown, where goods are properly deposited at such place, to show delivery and acceptance.54

51

"Merchants Nat. Bank v. Guilmartin, 88 Ga. 797, 15 S. E. 831, 17 L. R. A. 322.

"Second Nat. Bank v. Graham, 79 Pa. St. 106; Chattanooga Nat. Bank v. Schley, 58 Ga. 369; Lafourche &c. Nav. Co. v. Collins, 12 La. Ann. 119; Pattison v. Syracuse Nat. Bank, 4 Thomp. & C. (N. Y.) 96.

46 Collins v. Burns, 63 N. Y. 1. Albin v. Presby, 8 N. H. 408; Meacham v. Galloway, 102 Tenn. 415, 52 S. W. 859, 73 Am. St. 886, 46 L. R. A. 319.

50 Lloyd v. Bank, 15 Pa. St. 175; Cory v. Little, 6 N. H. 213; Michigan Cent. R. Co. v. Carrow, 73 Ill. 348.

51 Stearns v. Farrand, 29 Misc. 292, 60 N. Y. S. 501.

52 Scott v. Jester, 13 Ark. 437; Higman v. Camody, 112 Ala. 267, 20 So. 480, 47 Am. St. 33; Gay v. Bates, 99 Mass. 263.

53 Watson v. Loughran, 112 Ga. 837, 38 S. E. 82; Rockwell v. Proctor, 39 Ga. 105; McDonald v. Edgerton, 5 Barb. (N. Y.) 560.

Wright v. Caldwell, 3 Mich. 51; Lake Shore &c. R. Co. v. Foster, 104 Ind. 293, 4 N. E. 20; Merriam v. Railroad Co., 20 Conn. 354.

§ 1778. Sufficiency, validity and terms of contract-Burden of proof. The burden of proving that there actually is a contract of bailment is on the bailor.55 But one may, in some instances, be held liable as a bailee although there is no express contract. In such cases no express contract need be shown, but the burden is nevertheless upon the plaintiff to make out his case according to the theory of his declaration or complaint.

§ 1779. Sufficiency, validity and terms of contract-Presumptions. It is said that it will be presumed that printed matter on the face of a storage receipt is read by the depositor.56 Whether a delivery and acceptance of chattels by a bailee raises any presumption as to compensation is usually a question of fact for the jury.57 Some authorities, however, hold that it is presumed, when there is a delivery and nothing is said about compensation, that a compensation will be given,58 and this, as already shown, is generally true where the transaction is in the line of the bailee's usual business and he regularly receives compensation therefor. It has also been held that a presumption of a contract to give ordinary care arises where a warehouseman receives goods and there is no express contract.59 So, in the absence of any special contract, it has been held that one who borrows a carriage of a liveryman is presumed to carry the load that the carriage or team was intended to carry. The rules as to presumptions, as to redelivery are thus stated, in substance, by one authority:

"When

a contract of bailment does not specify the time at which the bailment terminates, it is presumed to terminate on the accomplishment of the purpose of the bailment, or after a reasonable time," but it has been held that a loan of a chattel for hire without specification as to time,

Higman v. Camody, 112 Ala. 267, 20 St. 480, 57 Am. St. 33; Union Compress Co. v. Nunnally, 67 Ark. 284, 54 S. W. 872; Lancaster Mills v. Merchants' Cotton Press Co., 89 Tenn. 1, 14 S. W. 317, 24 Am. St. 586.

Taussig v. Bode, 134 Cal. 260, 66 Pac. 259, 54 L. R. A. 774.

57 Lobenstein v. Pritchett, 8 Kans. 213; Mariner v. Smith, 5 Heisk. (Tenn.) 203, 89 Mo. 240, 1 S. W. 235.

58 Shelden v. Robinson, 7 N. H. 157, 26 Am. Dec. 726; Andrews V. Keith, 168 Mass. 558, 47 N. E. 423.

50 Gay v. Bates, 99 Mass. 263; see also and compare, Sutherland v. Albany &c. Co., 55 App. Div. (N. Y.) 212, 66 N. Y. S. 835.

00 Harrington v. Snyder, 3 Barb. (N. Y.) 380.

61 Ency. Ev. Vol. II, 188.

* Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435.