DIVISION D BAILMENTS, CARRIERS AND SALES Subdivision I. Bailments and Carriers. SUBDIVISION I BAILMENTS AND CARRIERS Chapter 36. Bailment defined. Chapter 37. Rights and Obligations of Ordinary Bailees. Bills of Lading and Warehouse Receipts. CHAPTER 36 BAILMENT DEFINED § 288. Bailment defined. § 289. Kinds of bailments. $290. How bailment differs from sale. § 291. Same subject in case of fungible goods. § 288. (Sales, Sec. 1.) Bailment defined. Case 263. Wentworth v. Riggs, 143 New York Supplement, 955. Facts: Wentworth, the plaintiff, patronized defendant's restaurant and hung his overcoat upon a hook provided for that purpose about two feet from him. No regular checkroom was provided but there was a place by the cashier's desk where valuables could be checked. There were notices about the place "Not responsible for hats, overcoats, umbrellas, etc.," but plaintiff testified he did not see these notices until after his coat was lost. The coat was stolen and plaintiff sues the restaurant owner for its value. He obtained judgment in the trial court and defendant appealed to the higher court (139 N. Y. Suppl. 1082) where plaintiff's judgment was affirmed. Further appeal to this court in which the court finds for defendant, adopting the dissenting of Sealbury in the court below. Point Involved: Whether the restaurant owner was a bailee of the coat hung by the customer on the hook near him; what constitutes one a bailee of another's property. SEALBURY, J.: "In view of the precautions taken by the defendant to police and care for the property of his patrons, I think it is evident that he cannot be held liable for the loss of the overcoat upon any theory of negligence unless there was a bailment. If the defend ant is to be held liable at all, it can only be upon this latter theory. Confusion has been engendered by certain cases, which seem to discuss constructive bailment as if it were identical with constructive delivery. The two things are distinct. Formerly, delivery was regarded as the essence of bailment. As this branch of the law has developed, cases of constructive bailment have been recognized covering cases where' there had been no delivery either actual or constructive, as where one held the possession of a chattel under such circumstances that the law placed upon the person having the possession of the chattel the obligation to deliver it to another. The typical instance of such a constructive bailment is where one, sells a chattel to another, who pays the price thereof, and the vendor refuses to deliver it to the vendee. Here the law implies the contract of bailment, and holds the vendor answerable as bailee. In such a case it is apparent that there has been no delivery by the bailor to the bailee, and yet the bailment exists constructively. All the other examples of constructive bailment which are given in the books, as in the case of a finder, of a captor or salvor, of an attaching officer, are cases where the person having possession of the chattel is held to be a bailee, although there has never been either an actual or a constructive delivery of the chattels to the bailee by the bailor. In other words, the essential fact of legal significance in all these cases is possession. It certainly is not delivery, for, in none of these cases of constructive bailment, is there either an actual or a constructive delivery. "The older definitions of the term 'bailment' seem to accentuate merely the necessity for the delivery. Chief Justice Holt, in his celebrated opinion in Coggs v. Bernard, 2 Lyd. Raym., 909, 1 Smith, Lead. Cas. 354, which supposed to have laid the foundations of the English law of bailment, divides bailment into six different sorts of classes and defines each. Delivery is in every case the essential element in Lord Holt's definition. is Mr. Schouler, in his American notes to Coggs v. Bernard, in the ninth American Edition of Smith's Leading Cases (volume 1, p. 400), quotes the following definition of the term 'bailment' from Bouvier's Dictionary: "A delivery of some chattel by one party to another, to be held according to the special purpose of the delivery, and to be returned or delivered over when that special purpose is accomplished.' "This definition includes within its scope constructive bailment, whereas the earlier definitions of Holt, Jones, Blackstone, Story, and Kent cover only cases of actual bailment. "1. In actual bailment there must be a delivery of the chattels to the bailee or his agent. The delivery may be either actual or constructive. (a) An actual delivery consists in giving to the bailee or his agents the real possession of the chattel. Shindler v. Houston, 1 Denio (N. Y.) 48. (b) Constructive delivery comprehends all of those acts, which although not truly comprising real possession of the goods transferred, have been held constructione juris equivalent, to the acts of real delivery, and in this sense includes symbolical or substituted delivery. Shindler v. Houston, supra; Bolin v. Huffnagle, 1 Rawle (P.) 9; 35 Cyc. 189. "In 5 Cyc. 165, in discussing the sufficiency of the delivery in order to constitute an actual bailment, it is said: "Such a full delivery of the subject-matter must be made to the bailee as will entitle him to exclude for the time of the bailment the possession of the owner, as will make him liable as its sole custodian to the latter in the event of his neglect or fault in discharging his trust with respect to the subject-matter, and as to require a redelivery of it by him to the owner or other person entitled to receive it after the trusts of the bailment have been discharged. Where the delivery can be constructive only, there must be an intention to transfer the possession of the property.' * "II. A constructive bailment arises where the person having possession of a chattel holds it under such circum stances that the law imposes upon him the obligation of delivering it to another. "From the definition of the two subdivisions of actual bailment, and from the definition of a constructive bailment, there ought to be no difficulty in determining whether there was in the case at bar a bailment of the plaintiff's overcoat. Neither the defendant nor his agents ever had the real possession of the overcoat, and therefore there was not an actual delivery of the coat. The facts proved are inconsistent with the hypothesis that the plaintiff intended to transfer to the defendant or his servants such a possession of the coat as would exclude for the time of the bailment the possession of the owner. The overcoat hung upon a hook within two feet of where the plaintiff was sitting during the meal, and it does not seem to be capable of dispute that during that time the defendant did not have such a possession of it as to exclude the possession of the plaintiff. If the plaintiff had wished to reach his overcoat at any time during the meal, either to take something from one of the pockets of the coat or for any other purpose, he was entirely free to do so, without requiring any act on the part of the defendant or his servants. The presence of the hooks may be construed into an invitation to the patron to hang his coat upon them, but hanging the coat upon the hook cannot be reasonably held to constitute a delivery of the coat to the exclusive possession of the defendant. The hooks were obviously placed there for the convenience of the patron, provided he wished to retain possession of his coat. If he wished to deposit the coat in the exclusive possession of the defendant, he should have availed himself of the accommodations which the defendant provided for that purpose. If he had done this, the defendant would have been liable. Buttman v. Dennett, 9 Misc. Rep. 462, 30 N. Y. Supp. 247. The frequency with which the plaintiff was accustomed to visit the defendant's restaurant leaves no room for doubt that he knew of the accommodations provided by the defendant for caring for the hats, coats, and other articles of his patrons. |