Graves v. Ticknor

6 N.H. 537

Opinion

The opinion of the court was delivered by

Upham, J.

Footnotes

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This is a case of a bailment of money to be delivered by the bailee, without reward. The bailee, in such cases, is liable for what is termed gross negligence, which consists in the omission of that care which bailees, without hire, of common prudence, are accustomed to take of properly of the like description. Tracy v. Wood, 3 Mason’s Rep. 132,

Every bailee, of this description, is bound to render, upon request, a full account of his proceedings to show that the trust has been duly performed, or, tí' it has not been performed, to offer a justification, or legal excuse for non performance, and to make restitution oí the property where the same is to be restored, or where the mandate is not complied with. Story on Bailments, Ch. 3, Sec. 191.

11 the bailee has been guilty of fraud, or gross negligence, or misuser, he is liable for damages. The manner in which the remedy is to be enforced varies according to circumstances.

There are cases of bailments, of this description, where the action should be case for misfeazance, or negligence, or conversion. The form of the action dependa upon the nature of the undertaking on the part of the bailee, and the circumstances of his default. The undertaking in this case was to pay over the money within a reasonable time, or to refund it, or account for it. The money was received by the defendant under an implied promise to this extent. The undertaking being gratuitous, and without consideration, its performance could not be compelled by the common law ; Elsee v. Gatward, 5 Term Rep. 143; Thorne v. Deas, 4 Johns. 84; 2 Kents. Com. 443, 444. But the defendant is bound, if he clines to perform it, to restore the property, and an tin-reasonable delay to do this, renders the defendant accountable as the alternative imposed by Ids contract.

IÍ such be the nature of the contract, we know no reason why assumpsit will not He in cases where the unreasonableness of the delay is apparent, and without excuse. An action of assumpsit, founded upon the contract, is one of the remedies specified in eases of this description. Story on Bailments, Ch. 3, Sec. 191 and Sec. 213; Fowler v. Shearer, 7 Mass. Rep. 14; Rowe v. Smith, 16 Mass. Rep, 306; Riches v. Brigges, Yelv. 4. And we think assumpsit will lie upon either the second, or third counts in this case.

But it. is said, in this case, that a demand isa necessary prerequisite to the commencement of a suit. This doctrine would be correct, were the suit commenced prior to an unreasonable delay, to restore the money received.

The general rule is, that the bringing of an action, is a sufficient request for money. Vivian v. Shipping, Cro. Ca. 384. Where the request is not parcel of the contract, and the promise is to pay, or perform a mere debt, or duty, or that which is in lire nature of a debt, or duty, a special demand is unnecessary, and such is this case after the refusal of the defendant to comply with his alternative of del i vering the money. Lawson Assumpsit, 247; 3 Salk. 309, 310; Lent & al v. Paddleford, 10 Mass. Rep. 230.

But we are of the opinion that a sufficient demand has been proved.. Where a demand is made, on the clay of the date of the writ, after it is delivered to the officer, but before it is served, the writ is considered os sued out at any moment of the day which best accords with the justice of the case. Badger v. Phinney, 15 Mass. Rep. 359; Robinson v. Burleigh, 5 N. H. Rep. 225.

As a farther reason why assumpsit will not lie it has been urged that the money was put into a letter, to be delivered, and it could not have been appropriated by .¡the defendant, except by such a breaking’ up of the pack-"OgC) as to constitute evidence of a felonious intent , or a tort inconsistent with the maintenance- oí assumpsit. — • The case finds no manner in which the package has been disposed of, and in the absence of testimony we are bound to give the most favorable construction to the defendant. it is sufficient for the plaintiffs to allege such a want ofconvinon prudence, and care, on the part of the •defendant, as persons, undertaking such a trust, are bound to exercise. Unless the circumstances of the case necessarily show a default or wrongful act beyond this it would not prevent the maintenance of assumpsit. Hill v Davis, 3 N. H. Rep. 384.

On the trial of this case, an exception was taken to the «se of a deposition, for the want of suitable notice to the defendant’s counsel, his client being then a resident without the state, and more than twenty miles from the place of caption, and it is said the same notice should be .given to the defendant’s counsel, as his client would have been entitled to, in case of personal service on him at his present place of residence, or wherever that residence might be. This rule however would operate as a serious inconvenience where depositions should be taken oat ■of the state, near the client’s residence, and merely the notice which the client would be entitled to, in such case, ■should be given to the counsel here, and its operation, in some instances where depositions are taken, within the state, might be inconvenient. We are of opinion that the •counsel, where the client resides out of the state, and ■more than twenty miles from the place of caption, should receive the same notice, as if he were himself the party, without regard to his client’s residence. This rule will •probably operate as justly as any other, and seems to have been the rule designed by the statute in the provision that “ where the party resides without the state, and more than twenty miles from the place of caption, the attorney shall be notified in the same way, and man ner, as is provided for the notification of a party who lives within the state. N. H. Statute, Ch. 110, Sec. 3.

Judgment must be rendered upon the verdict.-

Parker I, having been of counsel, did not sit