Feltman v. Gulf Brewery , 42 How. Pr. 488 ( 1872 )

By the court, Mullin, P. J.

The referee finds, that there was an agreement between the parties, that the plaintiff might store his wood on defendant’s wharf, for which he was to pay two shillings per cord. There were forty-seven cords in all, of these the plaintiff sold twenry-one cords, and MeQuade with the consent of the plaintiff took eight cords, leaving eighteen cords which should be left on the wharf. The action is to recover the value of the eighteen cords.

It is not necessary to decide whether the contract between the parties, created the relation of bailor and bailee. It was, probably, a hiring of the use of the land for a storage of the wood, but assuming, that the relation between the parties was, that of bailor and bailee, the bailment being for hire, the defendant was bound to exercise ordinary care, and is liable for ordinary neglect (Story on Bailments, §§ 444, 451.)

The plaintiff proved on the trial, the agreement for storing the wood, its delivery on the wharf, a demand of it, and a refusal to deliver.

Was the plaintiff, upon this evidence, entitled to recover?

The plaintiff was bound to prove, in order to entitle himself to recover, that the defendant was guilty of some neglect in reference to the care of the property, or an actual conversion of it by him (Arent agt. Johnston, 1 Daly, 347.)

If the property had been intrusted to the personal care of the bailee, the plaintiff, upon proof of a demand, and a refusal or ommission to deliver, and no explanation given by the bailee why the property is not delivered, is entitled to recover the valué of the property, as it is presumed in such a case, that the bailee has appropriated the property to his own use.

If the bailee proves, that it was destroyed by causes which he could not control, or if it is burned or stolen without fault on his part, the plaintiff cannot recover without prooí of an actual conversion, or that the loss resulted from the neglience of the defendant (Arent agt. Johnston, supra.)

Such is the law as to property placed in the actual custody of +he defendant. By actual custody, I mean in his house or storehouse or into his hands.

When, however, the property is not put into his actual custody, but is deposited upon his premises unprotected by an inclosure, and consequently, accessible to all persons desiring to go thereon a mere demand and omission to deliver may not be evidence sufficient to entitle the plaintiff to recover.

The wood in question was deposited on a wharf or dock on the bank of the Erie Canal. There is no proof that it was in any manner inclosed, or that the defendant had any means to prevent the wood piled upon its wharf from being stolen or carried off by trespassers.

Under these circumstances, the defendant was under no obligation to exercise any care over the wood, except to prevent (if within the power of its agent) the unauthorised removal of it.

It would be most oppressive to require a bailee in order to protect property left upon a public dock or a vacant lot owned by him, to employ a man to guard it or to erect a building or other structure over or around it which might be locked, or otherwise secured against persons not lawfully entitled to deal with the property.

What could defendant’s agents have done to protect the plaintiff’s wood, that they did not do unless it was to place a guard over it, and fence around or building over it.

It seems to me, that the plaintiff did not prove enough to •entitle him to recover.

But if I am wrong in this, and sufficient was proved to entitle him prima facie to recover, the defendant relieved itself from the force of the evidence on the part of the plaintiff.

McQuade and Harding were the only persons connected with the brewery, that had any right to act for the defendant, except that when they were absent other employees might •sell ale.

Both of these men swore and testified, that they did not sell or dispose of the wood in question, nor do they know •of any disposition being made of it, except what McQuade, took by plaintiff’s consent, and what plaintiff himself sold to Reed. These witnesses also testify, that the books show no money received for wood or for storage of it.

There is no evidence in the case to lessen in any degree, the force of this evidence on the part of the defendant.

Assuming the facts so sworn, to be established, it follows, that neither the defendant nor its agent had converted the wood to its, or their use, nor had it been sold or otherwise •disposed of by it, or its agent.

It seems to me, the defendant established a perfect defense to the action, and the judgment of the referee must, therefore, be reversed, and a new trial ordered, costs to abide the -event.