CREATION AND GENERAL INCIDENTS OF THE BAILMENT RELATION. SECTION 8. CREATION OF THE BAILMENT RELATION. A delivery to the bailee, either actual or constructive is always necessary in order to constitute a contract of bailment. There is an actual delivery where the acts of the parties show an intention on the one part to make delivery then and there, and on the other part to accept delivery then and there." A bailment without delivery is void as against subsequent bona fide purchasers, and generally as against creditors. On the other hand, a bailment with delivery is valid against purchasers and creditors." Delivery of possession is not necessary where the parties have agreed that the possession of the thing bailed should remain with the bailor." It is also essential to the creation on a bailment that the subject matter of the bailment should be accepted by the bailee." SECTION 9. SUBJECT MATTER OF BAILMENT. Any kind of personal property may be the subject of bailment unless otherwise provided by statute; and 1 Samuels vs. McDonald, 33 N. Y. Super. Ct., 211; Owens vs. Ex parte Fitz, 2 Lowell (U. S.), Sanders vs. Davis, 13 B. Mon., (Ky.), 432. See also Hamilton Collin's Appeal, 107 Pa. St., 590; Michigan Cent. R. Co. vs. Carrow, 73 Ill., 348; 24 Am. Rep., 248. such property need not be corporeal, because a chose in action may be bailed. Property which is not in existence, or which is to be acquired by a person in the future, is not bailable. 8 A chose in action arising out of a personal wrong, and not being for the recovery of damages for property illegally taken out of a person's possession or unlawfully withheld from him, cannot be the subject of a bailment. SECTION 10. PARTIES TO THE BAILMENT. "Any one having contractual capacity may be a bailee, but no persons, with the exception perhaps of inn keepers, common carriers, wharfingers, or warehousemen, can be compelled to be bailees, since a person has the same right to decline becoming a bailee as he has to decline becoming a purchaser." "It is not essential that the bailor should have an absolute title to the subject-matter of the bailment, it being sufficient if he is invested with such possessory interest in the subject matter as will entitle him to assert his interest against all the world except the rightful owner.'' 10 SECTION 11. INCIDENTS OF THE CONTRACT OF BAILMENT. An express contract is not necessary to the creation of the bailment relation. This form of contracts, like others, may be created by implication. It is essential that the parties to the contract should have intended Loomis vs. Stowe, 72 Ill., 623; Shaw vs. Wilshire, 65 Me., 485; Jarvis vs. Rogers, 15 Mass., 389. 5 Cyc., 166; Gittings vs. Nelson, 86 Ill., 591; Macombe vs. Parker, 14 Pick. (Mass.) 497. King vs. Richards, 6 Whart. (Pa.), 418; 37 Am. Dec., 420. 10 Tatum vs. Sharpless, 6 Phila. (Pa.), 18; 22 Leg. Int. (Pa.), 244; Caldwell vs. Eaton, 5 Mass., 399. a return of the specific thing bailed," even if in an altered form.12 SECTION 12. RIGHTS AND LIABILITIES OF Bailor and BAILEE TOWARDS THIRD PERSONS. Since both bailor and bailee have a property right (the one general and the other special) in the property bailed, it follows that either may bring an action against any third party who injures the property which is the subject of the bailment.13 A recovery by one will be a bar to any subsequent action by the other.14 If a creditor of the bailee seizes the bailed property, the bailor may recover such property or its value from him.15 Where the bailor leaves property with the bailee with directions to sell it, and, after deducting a debt due to himself, to pay the balance to the bailor, and the bailee exchanges it for other property, such property is not necessarily subject to be attached for his debts.1 This depends upon whether the bailor ratifies or repudiates the exchange.17 17 Where, at the time of the bailment, the property bailed was in fact owned by a third person, such third person can recover possession of the property from the bailee,18 or damages from the bailor. "Bohannon vs. Springfield, 9 Ala., 789; Arent vs. Squire, 1 Daly, (N. Y.), 347. 12 Barker vs. Roberts, 8 Me., 101; Mansfield vs. Commerce, 8 Allen (Mass.), 182. 18 Rindge vs. Coleraine, 11 Gray (Mass.), 157; Baggett vs. McConnack, 73 Miss., 552. 14 Knight vs. Davis Carriage Co., 71 Fed., 662; 30 U. S. App., 664; 18 C. C. A. 287. 15 Hardy vs. Hunt, 11 Cal., 343; 70 Am. Dec., 787. 18 Drew vs. Kimball, 43 N. H., 282; 80 Am. Dec., 163. 17 Strong vs. Adams, 30 Vt., 221; 73 Am. Dec., 305. 18 Nelson vs. Inerson, 17 Ala., 216. Vol. V.-9. BAILMENTS FOR THE BAILOR'S SOLE BENEFIT. SECTION 13. DEGREE OF CARE AND NEGLIGENCE. Where the bailment is for the bailor's sole benefit, the bailee is only called upon to exercise slight care, and is only answerable for gross negligence.1 3 Where the property is stolen, it has been held that the bailee is not liable unless the loss is the result of gross negligence on his part. But it was held in State vs. Meagher, that the fact of theft was presumptive evidence of carelessness or fraud under the civil law, and that a bailee having reason to believe that there is danger of robbery who takes no precautions against it, is negligent. And where a bailee used the property and substituted other property of a similar kind and value, which was stolen, he was held liable for the loss to the bailor.5 Mere knowledge by the bailor of the mode in which a bailee cares for property intrusted to him will not absolve the latter from liability for want of due care in keeping the property. Such knowledge, accompanied by evidence of long acquiescence without objection, might show an agreement as to the nature 1 Chase vs. Maberry, 3 Harr. (Del.), 266; Dunn vs. Kyle, 14 Bush. (Ky.), 134; Schermer vs. Newrath, 54 Md., 491. 'Whitney vs. Lee, 8 Metc. (Mass.), 91; Tancil vs. Seaton, 28 Gratt. (Va.), 601, 26 Am. Rep., 380. But see Huxley vs. Hartzell, 44 Mo., 370, holding that the mere fact that an article was stolen without the knowledge of the bailee, is not an excuse, but that it must appear that it was lost without his negligence or fault. 344 Mo., 356; 100 Am. Dec., 298. Henkins vs. Motlow, 1 Sneed (Tenn.), 248; 60 Am. Dec., 154. Anderson vs. Foresman, Wright (Ohio), 598. |