Classification. - Bailments are generally classified as follows: 1. Bailment for the benefit of the bailor,

2. Bailment for the benefit of the bailee,

3. Bailment for the benefit of both the bailor and bailee. The last bailment, for the mutual benefit of both parties, is again classified as ordinary and exceptional, the exceptional bailments being those of innkeeper and of common carrier. All other cases of bailment for mutual benefit of bailor and bailee are ordinary bailments.

Degrees of Care. In all cases of bailment a certain degree. of care is required of the bailee. A lack of the required care is termed negligence and renders the bailee liable.

There are three degrees of care, namely, great, ordinary, and slight. Ordinary care may be defined as the care which a person of ordinary prudence would take of his own property. Anything more than ordinary care would be considered great care and anything less would be considered slight care. While there are three degrees of negligence mentioned by some authors the weight of authority seems to favor but one degree, and whether or not negligence exists in a particular case will depend upon whether the bailee has given the property the required degree of care.

When the bailment is for the benefit of the bailor, the bailee is expected to take slight care of the property, and failing to do so he would be responsible for negligence, which some would term gross negligence.

When the bailment is for the benefit of the bailee he is expected to take great or extraordinary care of the property, and should he fail to do so, he is responsible for negligence (slight negligence).

When the bailment is for the benefit of both the bailor and bailee, the bailee is expected to take ordinary care of the property, and his failing to do so would amount to negligence (ordinary negligence).

Besides the degree of care that is demanded of the bailee, the law requires that he act honestly and in good faith. He must not abuse his trust nor sell, pledge, or otherwise deal 'with the property in his hands as though he were the owner.

Tortious Bailee. When property comes into possession of one not its owner as a result of theft, fraud, or of finding any lost property, a tortious bailment results. This bailment is not the result of a contract but is imposed by law for the protection of the owner. A tortious bailee will be held more strictly accountable for the care of the property than an ordinary bailee. He will be absolutely liable for any loss that may occur while the property is in his possession, even if he is not negligent. When one finds property he is not bound to take it into his custody, but if he does he must assume full responsibility. He should make a reasonable effort to find the right owner and in case he fails to do so, he may treat the property as his own. If he fails to make an effort to find the owner he is a tortious bailee. Expenses incurred by the finder in connection with the article found, may be recovered from the owner before the article is surrendered to him.

Liability Varied by Contract. As a general rule the parties to a bailment may by contract vary the rights or liabilities of the parties, making the liability of the bailee either greater or less than it would otherwise be, except that the law will not allow the bailee to be exempt, even by contract, from the consequences of his own willful misconduct.

Bailment through an Agent. Either party to a contract of bailment may act through an agent, and delivery to the agent of the bailee is delivery to the bailee.

1. What is a bailment?

QUESTIONS

2. What is the difference between a sale and a bailment?

3. What are the parties to a bailment called?

4. Give an example of a bailment.

5. How is a bailment created?

6. What should the bailment contract specify?

7. How are bailments classified according to the benefit?

8. What are the three degrees of care required of the bailee?

10. How is it determined whether or not the bailee has been negligent? II. What requirements other than the care does the law impose on the bailee?

12. Wherein does a tortious bailment differ from an ordinary bailment?*

13. What responsibility is imposed on the finder of a lost article and what are his duties with reference to the article found?

14. May a bailee vary or limit his liabilities by contract? Explain.

2. BAILMENT FOR THE BAILOR'S SOLE BENEFIT

Definition. This class of bailment arises frequently in everyday life. Every undertaking of a friend or neighbor to hold or convey an article of personal property gratuitously and as a favor comes under this class.

To illustrate, A stores B's wagon in his barn gratuitously; or he takes it to perform some work upon it, as to paint it, without charge; or it may be he carries it from one place to another, as to take B's wagon home for him. A bailment for the bailor's benefit may come under any one of these three classes, or it may combine two or all of them.

Liability of Bailee. An agreement by the bailee to carry out the gratuitous bailment cannot be enforced because of the lack of consideration, but when the bailee receives the property and carries out the bailment, he is bound to do it with care, and he will be liable for neglecting to take the required care of the property or for wrongful acts in relation thereto.

It is often difficult to determine whether a bailment is gratuitous or is for the mutual benefit of the parties, that is, whether or not the bailee is entitled to compensation. The original intent of the parties is the test. If the bailee receives the chattel in the usual course of his business, and business usage and his ordinary method of dealing give him the right to demand compensation, the bailment is not considered gratuitous, even though nothing was said as to compensation.

Barton took twenty-five U. S. bonds to his bank and left them there for safe keeping; nothing was said at the time about compensation. As the bank makes a business of taking valuable securities and documents for safe keeping and charging for doing so, Barton will be expected to pay the bank's regular charges for keeping his bonds.

But if the bailee undertakes the service for a near relative or personal friend, or out of mere charity or favor, and if the trust puts him to but little trouble and the bailment is out of his usual course of business, it is presumed to be without compensation.

Lowe expects to be away for a month and he leaves his motorcycle with a friend of his to be cared for during this time. As this is a bailment out of the usual course of the friend's business it is presumed to be without compensation.

Degree of Care Necessary. In this class of bailment, as we have seen, only the lowest degree of care and diligence is required of the bailee; that is, slight care, and he is not held liable for loss or injury unless guilty of not exercising the required degree of care.

No absolute rule can be laid down as to just how a gratuitous bailee must care for the chattel in his charge. The circumstances of the case control; that is, different care would be required of the person who receives a watch or a valuable vase, from that expected of the person who receives a wagon or a load of stone. It is said that a gratuitous bailment seldom demands skilled labor or care, and the gratuitous bailee is excused from the results of inevitable accident, accidental fire, etc.

Spooner and Mattoon were soldiers in camp, occupying tents 10 rods. apart. Spooner had considerable money, and fearing it might not be safe left it with his friend, Mattoon, without expectation of reward, for safe keeping. For two nights he so left it, and came for it in the morning. On the third morning he did not call for it, and Mattoon started for Spooner's tent with the money. He put it under his arm inside of his vest, so that the pocketbook would not be seen. It slipped out and was lost. Held, that Mattoon was not guilty of gross negligence, so was not liable.

-Spooner v. Mattoon, 40 Vt. 300.

Use of Property. In bailments of this class the question arises as to whether or not the gratuitous bailee may use the thing bailed to him. Clearly, he cannot make any use of it except for the bailor's benefit, otherwise the bailment would not be included in this class. When the bailee accepts the custody of an animal, he undertakes to feed and care for it. Proper care would require him to drive a horse for exercise, to milk a cow, etc., but the profits derived from the use of the animal in this class of bailment go to the bailor. The bailee has a right to incur necessary expenses in caring for the thing bailed.

Dillon deposited in the hands of Devalcourt merchandise to be sold, the proceeds to be applied on a debt which he owed to Devalcourt. Held, that whatever useful and necessary expenses Devalcourt incurred in fulfilling the bailment were chargeable to Dillon.

Devalcourt v. Dillon, 12 La. Annual 672, A.

Termination. This class of bailment is terminated either by the accomplishment of the purpose of the bailment or by the express act of either party. The bailee may surrender the article bailed, and so terminate the relation, or the bailor may make a demand and recover the chattel. When the bailment is for the purpose of accomplishing some act, as the delivery of a chattel from one place to another, the bailee, after undertaking the bailment, must accomplish it with at least slight care, or be responsible for breach of contract. But by mutual assent, the bailment may be terminated at any time. The delivery of the identical chattel is necessary. If it is in a bettered condition, the bailee derives no benefit; and if in worse, it is not his loss unless due to his lack of slight diligence or care.

QUESTIONS

1. Give an example of a bailment for the bailor's benefit.

2. Is an agreement for a gratuitous bailment enforceable by either party?

3. May either party to a bailment contract act through an agent? Explain.

4. What degree of care is necessary in a bailment for the bailor's benefit?

5. In such a bailment, when may the bailee use the thing bailed? 6. How may a bailment for the bailor's benefit be terminated?

3. BAILMENT FOR BAILEE'S SOLE BENEFIT

Definition. This class of bailment consists of the gratuitous loan for use. The bailee is what we call in ordinary language the "borrower." When a man lends his lawn mower or his bicycle to a friend to use and afterwards to be returned, the loan is a bailment for the bailee's sole benefit.

The bailor must voluntarily give the possession of the article to the bailee without exacting any recompense for its use. This bailment must be distinguished from the loan of something that is to be consumed and afterwards to be paid back in kind, as flour or grain, which is in fact no bailment at all, but a barter; that is, the exchange of the particular property for another of a like kind.