Ames, J.
In that class of bailments described in the *ext books under the title of “ deposits,” the obligation of the bailee is that he will keep the thing deposited with reasonable care, and that he will upon request restore it to the depositor, or otherwise deliver it according to the original trust. According to the well settled rule, the bailee who acts without compensation can only be held responsible for bad faith, or gross negligence, if the deposit should be lost or injured while in his custody. Whitney v. Lee, 8 Met. 91. Foster v. Essex Bank, 17 Mass. 479. Except as to the degree of diligence and care required of him, his general obligation is the same as if he had assumed the trust upon the promise or with the expectation of reward. If he should deliver the property to a person not authorized to receive it, he would make himself responsible for its value, without regard to th<? question of .due -care or the degree of negligence. Hall v. Boston [377]*377& Worcester Railroad Co. 14 Allen, 439. Lichtenhein v. Boston & Providence Railroad Co. 11 Cush. 70. Cass v. Boston & Lowell Railroad Co. 14 Allen, 448, 453. 2 Kent Com. (6th ed.) 568. If the case of Heugh v. London & North Western Railway Co. L. R. 5 Ex. 51, can be said to present a case of delivery to the wrong person, (which is open to considerable doubt,) the doctrine there asserted is directly opposed to the above cited decisions of this court. Good faith requires, even in the case of a gratuitous bailment, that the bailee should take reasonable care of the deposit; and what is reasonable care must materially depend upon the nature, value and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties. Story on Bailments, § 62.
In this instance, the transaction was more than a simple deposit for safe keeping. The plaintiff claimed, and there was evidence, which was not contradicted or rebutted, to the effect that the defendant was to collect the coupons as they became due, for the benefit of the. plaintiff’s wife. The bond was delivered to the defendant in trust; he accepted the trust and entered upon its performance. “ The owner’s trusting him with the goods is a sufficient consideration to oblige him to a careful management.” Lord Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 909. Notwithstanding the gratuitous character of the bailment, “ it is held that the bailor has a remedy, in an action ex contractu, if th& bailee do not perform his undertaking, and that there is a sufficient consideration to support a contract.” Metcalf Con. 164 and cases there cited. In Robinson v. Threadgill, 13 Ired. 39, it was held that if one undertakes to collect notes for another, without mentioning any consideration, and takes the notes for that purpose, there is a sufficient legal consideration for the engagement. A mere agreement to undertake a trust in futuro without compensation is not obligatory; but when once undertaken and the trust actually entered upon, the bailee is bound to perform it according to the terms of his agreement. Rutgers v. Lucet 2 Johns. Cas. 92. Smedes v. Utica Bank, 20 Johns. 372-379. Upon this point the authorities are numerous. They ara [378]*378fully cited in 1 Parsons Con. (5th ed.) 447; and 2 Parsons Con. 99; and in Chitty Con. (10th Am. ed.) 38-40, notes n and u. And it is well settled that the remedy is not confined to an action of tort, but that contract will lie.
The substance of the defendant’s contract and duty was to keep the deposit with reasonable care, and to restore it when properly called upon. We do not interpret this contract as restricting him to one place or uniform mode of keeping. All that could reasonably be expected of him was that he should keep it with his own papers, and in the same manner and with the same degree of care, as a man of ordinary prudence would exercise in the custody of papers of his own of like character. Circumstances might occur which would render it reasonable and proper that he should change the place of deposit. If his own place of business should be destroyed by fire, or if, from change of residence or temporary absence from the country, or for other sufficient reason, it should become inconvenient or unsafe that he should retain the manual possession of the bond, he would undoubtedly be at liberty to deposit it in any other place or mode, in which he with reasonable prudence might deposit his own property of the like description. But, as between the original depositor and himself, he would continue to be the lawful and responsible custodian, and bound to practise that degree of care which the law requires of gratuitous bailees. The complaint against him is, not that he kept it negligently, or lost it by gross carelessness, but that he intentionally disposed of it in a manner not authorized by the terms of the trust. For the purposes of this case, it is wholly immaterial whether the post-office furnishes a reasonably safe mode of transmission, in the case of valuable papers of such a description, or not. The question of due diligence or gross neglect, in our opinion, is not raised by the bill of exceptions.
A case recently decided in New York, Kowing v. Manly, 49 N. Y. 192, is in its leading features analogous to that now before ns. In that case certain bonds had been left with the defendants with instructions in -writing not to deliver them to any person except upon the written order of the plaintiff, who was the depos* [379]*379itor. The bonds were subsequently delivered by the defendants to the plaintiff’s wife upon her presentation of an order purporting to be signed by him, which was in fact a forgery. The defendants were held accountable for the value of the bonds, not on the ground of any want of due and reasonable care, but because they had disposed of them in a manner not authorized by the contract. The fact that their instructions were expressed in .writing could add nothing to the duties required of them by their contract. They were held liable for the reason that they had no authority to do what the defendant in this case attempted to do; and because such a delivery to the wife was a violation of their trust.
In Stewart v. Frazier, 5 Ala. 114, the defendant had received money to be kept for the plaintiff, without compensation. No instructions had been given to the defendant to remit the money, but from kindness and the best intentions he undertook to remit it by the hands of a person “ reputed to be an honest man.” The money was lost, and the defendant was held responsible, on the ground that it was a case in which the plaintiff was exposed to a risk to which he had not consented. The court say “ the law would be the same if the public mail had been resorted to, instead of a private conveyance.” They add that the question of gross negligence in the transmission of the money does not arise, as the defendant “ had no authority to transmit, in any mode, either express or implied.”
As we have already remarked, if the defendant had delivered the bond by mistake to a person not entitled to receive it, he would make himself responsible, without regard to the question of due care, or degree of negligence. His duty was to keep the deposit; he could not dispose of it without the express or implied authority of the depositor.
Free access — add to your briefcase to read the full text and ask questions with AI
Ames, J.
In that class of bailments described in the *ext books under the title of “ deposits,” the obligation of the bailee is that he will keep the thing deposited with reasonable care, and that he will upon request restore it to the depositor, or otherwise deliver it according to the original trust. According to the well settled rule, the bailee who acts without compensation can only be held responsible for bad faith, or gross negligence, if the deposit should be lost or injured while in his custody. Whitney v. Lee, 8 Met. 91. Foster v. Essex Bank, 17 Mass. 479. Except as to the degree of diligence and care required of him, his general obligation is the same as if he had assumed the trust upon the promise or with the expectation of reward. If he should deliver the property to a person not authorized to receive it, he would make himself responsible for its value, without regard to th<? question of .due -care or the degree of negligence. Hall v. Boston [377]*377& Worcester Railroad Co. 14 Allen, 439. Lichtenhein v. Boston & Providence Railroad Co. 11 Cush. 70. Cass v. Boston & Lowell Railroad Co. 14 Allen, 448, 453. 2 Kent Com. (6th ed.) 568. If the case of Heugh v. London & North Western Railway Co. L. R. 5 Ex. 51, can be said to present a case of delivery to the wrong person, (which is open to considerable doubt,) the doctrine there asserted is directly opposed to the above cited decisions of this court. Good faith requires, even in the case of a gratuitous bailment, that the bailee should take reasonable care of the deposit; and what is reasonable care must materially depend upon the nature, value and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties. Story on Bailments, § 62.
In this instance, the transaction was more than a simple deposit for safe keeping. The plaintiff claimed, and there was evidence, which was not contradicted or rebutted, to the effect that the defendant was to collect the coupons as they became due, for the benefit of the. plaintiff’s wife. The bond was delivered to the defendant in trust; he accepted the trust and entered upon its performance. “ The owner’s trusting him with the goods is a sufficient consideration to oblige him to a careful management.” Lord Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 909. Notwithstanding the gratuitous character of the bailment, “ it is held that the bailor has a remedy, in an action ex contractu, if th& bailee do not perform his undertaking, and that there is a sufficient consideration to support a contract.” Metcalf Con. 164 and cases there cited. In Robinson v. Threadgill, 13 Ired. 39, it was held that if one undertakes to collect notes for another, without mentioning any consideration, and takes the notes for that purpose, there is a sufficient legal consideration for the engagement. A mere agreement to undertake a trust in futuro without compensation is not obligatory; but when once undertaken and the trust actually entered upon, the bailee is bound to perform it according to the terms of his agreement. Rutgers v. Lucet 2 Johns. Cas. 92. Smedes v. Utica Bank, 20 Johns. 372-379. Upon this point the authorities are numerous. They ara [378]*378fully cited in 1 Parsons Con. (5th ed.) 447; and 2 Parsons Con. 99; and in Chitty Con. (10th Am. ed.) 38-40, notes n and u. And it is well settled that the remedy is not confined to an action of tort, but that contract will lie.
The substance of the defendant’s contract and duty was to keep the deposit with reasonable care, and to restore it when properly called upon. We do not interpret this contract as restricting him to one place or uniform mode of keeping. All that could reasonably be expected of him was that he should keep it with his own papers, and in the same manner and with the same degree of care, as a man of ordinary prudence would exercise in the custody of papers of his own of like character. Circumstances might occur which would render it reasonable and proper that he should change the place of deposit. If his own place of business should be destroyed by fire, or if, from change of residence or temporary absence from the country, or for other sufficient reason, it should become inconvenient or unsafe that he should retain the manual possession of the bond, he would undoubtedly be at liberty to deposit it in any other place or mode, in which he with reasonable prudence might deposit his own property of the like description. But, as between the original depositor and himself, he would continue to be the lawful and responsible custodian, and bound to practise that degree of care which the law requires of gratuitous bailees. The complaint against him is, not that he kept it negligently, or lost it by gross carelessness, but that he intentionally disposed of it in a manner not authorized by the terms of the trust. For the purposes of this case, it is wholly immaterial whether the post-office furnishes a reasonably safe mode of transmission, in the case of valuable papers of such a description, or not. The question of due diligence or gross neglect, in our opinion, is not raised by the bill of exceptions.
A case recently decided in New York, Kowing v. Manly, 49 N. Y. 192, is in its leading features analogous to that now before ns. In that case certain bonds had been left with the defendants with instructions in -writing not to deliver them to any person except upon the written order of the plaintiff, who was the depos* [379]*379itor. The bonds were subsequently delivered by the defendants to the plaintiff’s wife upon her presentation of an order purporting to be signed by him, which was in fact a forgery. The defendants were held accountable for the value of the bonds, not on the ground of any want of due and reasonable care, but because they had disposed of them in a manner not authorized by the contract. The fact that their instructions were expressed in .writing could add nothing to the duties required of them by their contract. They were held liable for the reason that they had no authority to do what the defendant in this case attempted to do; and because such a delivery to the wife was a violation of their trust.
In Stewart v. Frazier, 5 Ala. 114, the defendant had received money to be kept for the plaintiff, without compensation. No instructions had been given to the defendant to remit the money, but from kindness and the best intentions he undertook to remit it by the hands of a person “ reputed to be an honest man.” The money was lost, and the defendant was held responsible, on the ground that it was a case in which the plaintiff was exposed to a risk to which he had not consented. The court say “ the law would be the same if the public mail had been resorted to, instead of a private conveyance.” They add that the question of gross negligence in the transmission of the money does not arise, as the defendant “ had no authority to transmit, in any mode, either express or implied.”
As we have already remarked, if the defendant had delivered the bond by mistake to a person not entitled to receive it, he would make himself responsible, without regard to the question of due care, or degree of negligence. His duty was to keep the deposit; he could not dispose of it without the express or implied authority of the depositor. It will not be contended that the case shows any express authority for sending it by mail to the plaintiff’s wife, and certainly none can be implied from the circumstances. In so doing, he subjected the plaintiff to na risk which he had not contemplated, and did an act not authorized by the terms of his trust. It was left to the jury to say whether, in the words of the presiding judge, it was “ a disposition of the bond contrary to the original understanding,” whereby the de* fendant lost it.
[380]*380The result is that we find no error in the course of the trial in this part of the case.
The fact that the plaintiff offered his wife as a witness to prove that she did not authorize or direct that the bond should be sent to her, would not have justified an inference by the jury that she was his agent during his absence at sea. The defendant therefore was not entitled to the second ruling which he requested of the court.
The defendant’s demurrer to the declaration for the alleged misjoinder of tort and contract was properly overruled. It is sufficiently averred in the declaration itself that the counts are for the same cause of action, and this averment removes the objection upon which the defendant relies. Gen. Sts. c. 129, § 2, cl.' 5.
The majority of the court, therefore, concur in the order,
Exceptions overruled.
Mortow, J.
I am unable to concur in the opinion of the majority of the court.
The general rule is well settled that a gratuitous bailee or unpaid agent is liable only for gross negligence. If the property intrusted to him is stolen or lost or injured without negligence on his part, he is not responsible. Foster v. Essex Bank, 17 Mass. 479. Whitney v. Lee, 8 Met. 91. Coggs v. Bernard, 1 Sm. Lead. Cas. 283 and notes. It seems to me that the result of the authorities is, that the gist of the action against such bailee, whether it be, in form, contract or tort, is the negligence of the defendant. The ground of the right to recover is that some wrongfu. act of the defendant has caused the destruction or loss of the plaintiff’s property. If it is lost by any casualty which does not involve negligence of the bailee, the loss is the bailor’s. I am not able to see why this rule does not apply to a case like this, where the bailee undertakes to terminate the bailment or agency. He is not bound by a contract founded upon a sufficient consideration to continue it for any definite time. It is clear that ha might terminate it at any time upon giving notice to the bailor.
Cases may occur in which it would be justifiable for the bailee to terminate his agency, even without notice to the bailor, where, [381]*381as in this case, such notice is impossible. There may be a change of circumstances which makes it necessary, or reasonable as a measure of prudence, for the preservation of the property, to substitute a new custodian. Suppose the bailment was of a horse, and the bailee’s stable was burned, could it be held that he could not put the horse in the custody of some proper person, or that, if he did so, he would be regarded as an insurer of its safety ? Suppose the bailee becomes bankrupt and an unsuitable person to have the charge of such property as has been intrusted to him, may he not, for the greater security of the property, commit it to the charge of some responsible person ? Or suppose he is obliged to leave the country, so that he cannot retain the custody of the property, may he not deposit it with a suitable custodian at the risk of the bailor ? Or suppose the property is fraudulently obtained from him by means of a forged power of attorney, or order purporting to be signed by the bailor, calculated to deceive the most prudent man, is the bailee liable for the loss ? Other cases might be supposed. In all such cases, I think, the liability of the bailee depends upon the question whether his act was negligent or wrongful. If he did what men of ordinary prudence would do under the same circumstances, he has performed all the duty which is imposed upon him by the nature of his undertaking; he is guilty of no negligence by which the bailor’s property is injured, and ought not to be held liable for it.
I am of opinion, therefore, that in the case at bar it should have been left to the jury to decide whether it was negligence in the defendant, under the circumstances of the case, to attempt to terminate his agency by sending the bond to the plaintiff’s wife , and that the instruction to the effect that if he lost it by a dis position of it contrary to the original undertaking, he was liable without regard to the degree of care shown, was erroneous. The effect of the ruling is to hold the defendant liable to the same extent as if he were bound by a contract, upon a sufficient consideration, to continue the custody of the bond until the plaintiff’s return. It excludes from consideration all inquiry as to the cir.fimstances which induced him to change the place of deposit. In my opinion, it was a question of fact for the jury to determine, [382]*382whether, under the circumstances, the defendant was guilty oi negligence in undertaking to send the bond to the plaintiff's wife, or in the mode he adopted in sending it.
The case of Heugh v. London & North Western Railway Co. L. R. 5 Ex. 51, sustains the views I take of the rights and duties of gratuitous bailees. It differs from several cases decided by this court in holding that railroad companies, after the transit of goods sent by them is terminated, are mere gratuitous bailees. Lichtenhein v. Boston & Providence Railroad Co. 11 Cush. 70. Hall v. Boston & Worcester Railroad Co. 14 Allen, 439. Cass v. Boston & Lowell Railroad Co. Ib. 448. These" cases were decided upon the ground that the defendants therein were warehousemen, and bound to the duties and obligations of that relation. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. They do not present the case of a mere gratuitous bailee, and, it seems to me, do not decide the question involved in the case at bar.