Seymour, J.
The defendants, by way of answer, set-off, and counter-claim to an action brought against them, allege that they were the owners of a hearse, worth three hundred dollars, which was consumed by fire while stored in the plaintiff’s barn, on Fairview Avenue in Danbury; that when burned it was insured to its full value in a responsible company, by the terms of whose policy it was only covered by such insurance while it was contained in the plaintiff’s livery stable on Main street in Danbury; that prior to the procurement of the insurance the hearse had been left and stored at said livery stable under an agreement by which the plaintiff bound himself to store the hearse at said place; that nevertheless, after the policy had been issued, the plaintiff, without the knowlege of the defendants, or of the insurance company, removed the hearse from the Main street stable to the barn on Fairview Avenue where it was burned; that thereupon the insurance company refused to pay the insurance because the hearse was not in the livery stable on Main street at the time of the fire, and that the defendants lost their insurance and their hearse because of the plaintiff’s removal thereof. The defendants offer to set off so much of their claim, arising out of the facts stated in their counter
claim, as will equal the ’ plaintiff’s claim, and ask for judgment against him for the balance.
The plaintiff, in reply, admits that the defendants were the owners of the hearse, and that it was consumed by fire while stored in the plaintiff’s barn on Fairview Avenue, as alleged by the defendants. All the other allegations of the answer he denies.
The court rendered judgment for the defendants to recover the difference between the value of the hearse and the amount of the plaintiff’s bill of particulars, and made the following finding of facts:—
On September 17th, 1888, the plaintiff was the owner and manager of a livery stable in Danbury, situated on the westerly side of Main street. He resided on Fairview Avenue, nearly if not quite half a mile distant from his livery stable, and at his place of residence had a barn. For his own convenience he sometimes moved his patrons’ vehicles from his livery stable to this barn. He also kept horses there for sale, and occasionally would let a horse from there on hire. He used the barn, in short, as he found it necessary, from time to time, to relieve temporary exigencies at his livery stable.
At the date above mentioned the defendants, who are undertakers, entered into an agreement with the plaintiff to store and care for the hearse referred to in the answer, and to furnish horses and a driver for it when required in their business. It was thereupon taken to and received at his aforesaid livery stable. The defendants did not know that the plaintiff ever kept any of his patrons’ vehicles at his barn on Fairview Avenue, or anything about the barn or its use at all. The plaintiff moved the hearse in question to his barn three or four months after it was left with him and thereafter kept it there.
The defendant Foran knew, or, from what was said in his presence, might have known, that once when wanted by them the hearse was at this barn, but the court did not find that either of the defendants knew it was being kept there, and Foran, at the time in question, did not give the matter
sufficient consideration to arrive at any conclusion either of approval or disapproval concerning it.
The defendants, at the time of the agreement for care and storage, expected that the hearse would be kept in the Main street livery stable, and the contract, as they understood it, was for storage at that place. The plaintiff also expected to keep the hearse there, but did not expressly agree to. No other place of storage than the Main street stable was actually in the minds of any of the parties when the bargain was made.
The hearse was insured as stated in the answer. Of this the plaintiff had no actual notice, but he knew that such vehicles were often if not usually insured, and that to change its place of storage would vitiate the insurance if any existed. His own vehicles were insured and he caused permission for their removal from one place to the other to be inserted in the policies covering them. He took no pains to ascertain whether the hearse was insured or not.
The court found that in removing the hearse from his livery stable to his barn without informing the defendants of his intention so to do, that they might keep their insurance in force, if any existed, the plaintiff was guilty of negligence.
The hearse was worth $300. On June 27th, 1889, the plaintiff’s barn on Fairview Avenue, with its contents, including the hearse in question, was consumed by fire. No proof of loss or formal claim was ever presented to the insurance company by the defendants, because the company declined in advance to entertain any demands under its policy for the loss of the hearse, on the ground that when burned it was not in the place in which it was insured, and the defendants believed that this would be a perfect defense to any claim by them under their policy.
In the argument in this court the appellant contended that the answer, set-off and counter-claim were based upon a claimed agreement by which the plaintiff bound himself to store the hearse in the Main street livery stable, which agreement he had broken, and thereby had occasioned the loss complained of; that the court had found that there was
no express contract to that effect between the parties, and therefore found that the plaintiff was guilty of negligence in removing the hearse from the livery stable without informing the defendants of his intention so to do, that they might keep their insurance in force. In this, it was insisted, the court erred; that no» question of negligence was presented upon the pleadings, but only the question whether the plaintiff had made the contract and had broken it to the damage of the defendants.
We think, with the plaintiff, that no other question was properly presented by the pleadings. But we are also constrained to think that the point was not raised in the court below and therefore cannot be considered here.
There is no suggestion in the finding that any such claim was made at the trial. On the contrary the finding states that the plaintiff claimed, as matter of law, that the contract made by the parties was one of bailment for hire, and that the plaintiff could be held responsible only for lack of ordinary care in the storage of the vehicle; and that, in the absence of an express contract to the effect that the hearse was to be kept at the stable on Main street and nowhere else, the defendants could not recover, unless it appeared that the plaintiff was guilty of negligence or lack of ordinary care in caring for and storing the hearse. The court below was, in effect, invited to pass upon the question of negligence, which it is now claimed is not in the case. The claims made by the defendants, however, in the trial call upon us to decide whether the court erred in holding that in removing the hearse from his livery stable to his barn, without informing the defendants of his intention so to do, that they might keep their insurance in force, the plaintiff was guilty of negligence. This is a case where the question of negligence is presented as a question of law.
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Seymour, J.
The defendants, by way of answer, set-off, and counter-claim to an action brought against them, allege that they were the owners of a hearse, worth three hundred dollars, which was consumed by fire while stored in the plaintiff’s barn, on Fairview Avenue in Danbury; that when burned it was insured to its full value in a responsible company, by the terms of whose policy it was only covered by such insurance while it was contained in the plaintiff’s livery stable on Main street in Danbury; that prior to the procurement of the insurance the hearse had been left and stored at said livery stable under an agreement by which the plaintiff bound himself to store the hearse at said place; that nevertheless, after the policy had been issued, the plaintiff, without the knowlege of the defendants, or of the insurance company, removed the hearse from the Main street stable to the barn on Fairview Avenue where it was burned; that thereupon the insurance company refused to pay the insurance because the hearse was not in the livery stable on Main street at the time of the fire, and that the defendants lost their insurance and their hearse because of the plaintiff’s removal thereof. The defendants offer to set off so much of their claim, arising out of the facts stated in their counter
claim, as will equal the ’ plaintiff’s claim, and ask for judgment against him for the balance.
The plaintiff, in reply, admits that the defendants were the owners of the hearse, and that it was consumed by fire while stored in the plaintiff’s barn on Fairview Avenue, as alleged by the defendants. All the other allegations of the answer he denies.
The court rendered judgment for the defendants to recover the difference between the value of the hearse and the amount of the plaintiff’s bill of particulars, and made the following finding of facts:—
On September 17th, 1888, the plaintiff was the owner and manager of a livery stable in Danbury, situated on the westerly side of Main street. He resided on Fairview Avenue, nearly if not quite half a mile distant from his livery stable, and at his place of residence had a barn. For his own convenience he sometimes moved his patrons’ vehicles from his livery stable to this barn. He also kept horses there for sale, and occasionally would let a horse from there on hire. He used the barn, in short, as he found it necessary, from time to time, to relieve temporary exigencies at his livery stable.
At the date above mentioned the defendants, who are undertakers, entered into an agreement with the plaintiff to store and care for the hearse referred to in the answer, and to furnish horses and a driver for it when required in their business. It was thereupon taken to and received at his aforesaid livery stable. The defendants did not know that the plaintiff ever kept any of his patrons’ vehicles at his barn on Fairview Avenue, or anything about the barn or its use at all. The plaintiff moved the hearse in question to his barn three or four months after it was left with him and thereafter kept it there.
The defendant Foran knew, or, from what was said in his presence, might have known, that once when wanted by them the hearse was at this barn, but the court did not find that either of the defendants knew it was being kept there, and Foran, at the time in question, did not give the matter
sufficient consideration to arrive at any conclusion either of approval or disapproval concerning it.
The defendants, at the time of the agreement for care and storage, expected that the hearse would be kept in the Main street livery stable, and the contract, as they understood it, was for storage at that place. The plaintiff also expected to keep the hearse there, but did not expressly agree to. No other place of storage than the Main street stable was actually in the minds of any of the parties when the bargain was made.
The hearse was insured as stated in the answer. Of this the plaintiff had no actual notice, but he knew that such vehicles were often if not usually insured, and that to change its place of storage would vitiate the insurance if any existed. His own vehicles were insured and he caused permission for their removal from one place to the other to be inserted in the policies covering them. He took no pains to ascertain whether the hearse was insured or not.
The court found that in removing the hearse from his livery stable to his barn without informing the defendants of his intention so to do, that they might keep their insurance in force, if any existed, the plaintiff was guilty of negligence.
The hearse was worth $300. On June 27th, 1889, the plaintiff’s barn on Fairview Avenue, with its contents, including the hearse in question, was consumed by fire. No proof of loss or formal claim was ever presented to the insurance company by the defendants, because the company declined in advance to entertain any demands under its policy for the loss of the hearse, on the ground that when burned it was not in the place in which it was insured, and the defendants believed that this would be a perfect defense to any claim by them under their policy.
In the argument in this court the appellant contended that the answer, set-off and counter-claim were based upon a claimed agreement by which the plaintiff bound himself to store the hearse in the Main street livery stable, which agreement he had broken, and thereby had occasioned the loss complained of; that the court had found that there was
no express contract to that effect between the parties, and therefore found that the plaintiff was guilty of negligence in removing the hearse from the livery stable without informing the defendants of his intention so to do, that they might keep their insurance in force. In this, it was insisted, the court erred; that no» question of negligence was presented upon the pleadings, but only the question whether the plaintiff had made the contract and had broken it to the damage of the defendants.
We think, with the plaintiff, that no other question was properly presented by the pleadings. But we are also constrained to think that the point was not raised in the court below and therefore cannot be considered here.
There is no suggestion in the finding that any such claim was made at the trial. On the contrary the finding states that the plaintiff claimed, as matter of law, that the contract made by the parties was one of bailment for hire, and that the plaintiff could be held responsible only for lack of ordinary care in the storage of the vehicle; and that, in the absence of an express contract to the effect that the hearse was to be kept at the stable on Main street and nowhere else, the defendants could not recover, unless it appeared that the plaintiff was guilty of negligence or lack of ordinary care in caring for and storing the hearse. The court below was, in effect, invited to pass upon the question of negligence, which it is now claimed is not in the case. The claims made by the defendants, however, in the trial call upon us to decide whether the court erred in holding that in removing the hearse from his livery stable to his barn, without informing the defendants of his intention so to do, that they might keep their insurance in force, the plaintiff was guilty of negligence. This is a case where the question of negligence is presented as a question of law. It respects the duty of the plaintiff under given circumstances. Upon ■the facts of the case did the court impose the proper rule of conduct ?
Had the question been what was the plaintiff’s conduct, and the court, upon a correct rule as to what the law re
quired it to be, had found it to have been negligent, the finding would have been conclusive. But here, the facts being stated, the court held that the law imposed upon the plaintiff the obligation not to remove the hearse from his livery stable to his barn without informing the defendants of his intention so to do, that they might keep their insurance in force, if any existed. Is such the law ? As we have seen, the counter-claim is based in terms upon the agreement of the plaintiff to store the hearse in the Main street stable. Had such an agreement been proved the defendants would have been entitled to recover upon the facts found. In
Lilley
v. Doubleday, L. R., 7 Q. B. Division, 510, the defendant contracted to warehouse certain goods at a particular place, but he warehoused a part of them at another place, where, without negligence on his part, they were destroyed. The plaintiff had insured the goods, giving the place where the defendant contracted to warehouse them as the place where they were deposited, and in consequence lost the benefit of the insurance. In an action to recover as damages the value of the goods, it was held that the damages were not too remote, and that the defendant by his breach of contract had rendered himself liable for the loss of the goods.
In the opinions which were filed, Grove, J., says, among other things: “ I think the plaintiff is entitled to recover. It seems to me impossible to get over this point, that by the finding of the jury there has been a breach of contract. The defendant was jntrusted with the goods for a particular purpose and to keep them in a particular place. He took them to another, and must be responsible for what took place there. * * * I do not give any opinion whether what was done here amounted to a conversion, but I base my judgment on the fact that the defendant broke his contract by dealing with the subject matter in a manner different from that in which he contracted to deal with it.” Lindley, J., says: — “ It is further said that the defendant was responsible only for want of reasonable care, but is that so when he has departed from his authority in dealing with the goods ? ”
That case is an authority for the rule it lays down, and seems to at least intimate that, but for the contract, it would not necessarily be want of reasonable care to have warehoused the goods in some other place than where they were first deposited.
There are other eases of a similar import. It is stated in Schouler’s Bailments
&
Carriers, § 106, that a warehouseman who contracts to store goods at a particular place and then stores them somewhere else without his customer’s knowledge, whereby the benefit of insurance is lost, is answerable if the goods are destroyed by fire. But the implication all along seems to be that, where there is no contract, the question is the usual one as to ordinary care, and that it cannot be laid down as a rule of law that when goods are. deposited with a bailee for hire, without any contract as to where they shall be kept, but, the bailor supposing they will be kept where first deposited, insures them as located there, without informing the bailee of such insurance, the bailee is guilty of such negligence, in removing them to another place of deposit without informing the bailor of his intention of so doing, as will, of itself, make him liable for the value of the goods if burned, and the bailor loses the benefit of the insurance because it only covered the goods while in the place named in the policy.
• The proper rule, in the absence of special modifying stipulations, is that the bailee for hire is bound to exercise that ordinary care and diligence over the property bailed which prudent persons are accustomed to exercise towards like property or in the management of their own property under like circumstances, — that degree of care which may reasonably be expected from a person in the bailee’s situation.
The negligence which the court, as matter of law, imputes to the plaintiff in the case, is in removing the hearse without informing the defendants of his intention so to do, that they might keep their insurance, if any, in force.
There was no claim that the barn to which it was removed was more exposed to fire, or that the chances of loss or damage were increased by the removal, or that the plaintiff
knew that the hearse was insured. Had the plaintiff known that the hearse was insured, and that the insurance covered it only while stored in the Main street stable, a different question would have been presented.
The defendants assume that it was the duty of the plaintiff to have ascertained whether the hearse was insured, and whether its insurance would be affected by its change of location. This seems to us a transposition of the relative duties of the parties. The defendants should have acquainted the plaintiff with so important a fact if they expected to have it affect the latter’s duty. As is-suggested in the note to page fifteen of 5 Am. & Eng. Encyclopedia of Law, parties to contracts are not supposed to know more of one another’s affairs than may be communicated to them, nor to consider existing or contemplated transactions with other persons unless they are made known to them.
We think the court erred in its construction of the law, •and that judgment should have been for the plaintiff for •the full amount of his bill, instead of for the defendants to recover the difference between the value of the hearse and the amount of the plaintiff’s bill of particulars.
There is error in the judgment appealed from, and it is reversed.
- In this opinion the other judges concurred.