BAILMENTS

Evening Post, Volume CVI, Issue 90, 13 October 1923, Page 8

BAILMENTS

LECTURE BY MR. G. TOOGOOD

TO ACCOUNTANT STUDENTS.

There was a good attendance of members at the final meeting of the year of the Wellington Accountant Students' Society. . Mr. F. H. Bass was in the chair. The business of the evening was a lecture by Mr. George Toogood, LL.B., on the subject of "Bailments." The lecturer stated that a bailment properly so-called was a delivery of personal chattels in trust on a contract, express or implied, that the trust should be duly executed and the chattels redelivered in either their original or an altered form as soon as the time or use for which they were bailed should have elapsed or been performed. A bailment thus differed from a sale—the latter being effected where chattels were delivered on a contract for an equivalent in money or moneys' worth, and not for the return of the identical chattels in their original or altered form. In the ca3e of a bailment, only the possession, but not the property or ownership of the_ chattel passed, whereas in the case of a. sale the property or ownership passed from the seller to the buyer. Wherever a chattel was entrusted to the custody of another for any purpo3o whatever, on the condition, express or implied, that the chattel should be returned to the owner (the bailor) by the person to whom the chattel was entrusted (the bailie) at some future time, there was a bailment.

A lease or hiring of chattels was therefore a bailment. The handing of chattels to a carrier for the purpose of carriage, to an artificer or other tradesman for the purpose of doing some work either in the way of alteration to the chattel (such as the handing of a pair of boots to a bootmaker for repair), the handing of goods to an auctioneer for the purpose of sale, the deposit of a chattel with a person for safe custody, were all examples of bailments. The. ownership did not pass, and the chattel had to be delivered to the owner or to his nominee either in its original or altered form as the case might be. The word "Bailment" was derived from the old French word' "Bailler," which signified "to deliver or put in the hands of some other persori." There must be a delivery, that was to say, the actual or constructive possession of the chattel must be transferred by its owner (the bailor) to some other person (the bailie) for the particular purpose for which the bailment was made. Without such delivery, either actual or constructive, there could not bo a bailment. The handing of a key to a room where chattels were kept, by a bailor to a bailee so as to give the bailee dominum over or custody of the chattels, was an instance of constructive delivery, the bailee being thereby put in a position to exercise control of tha chattels for the purpose of the bailment. Only^. personal property (goods or chattels) could be the subject of a bailment, not real property or land. "I may say that, whilst the carriage of goods may be a • bailment, there can never be a bailment of passengers," continued the lecturer. "Though the carrier does not undertake to carry passengers safely, and is liable to any injury resulting to the passengers for lack of care, -yet the law does not go so far as to assume that a mail can make a bailment of himself; for, as already stated, the essential characteristic of the contract for bailment is the delivery up of a chattel by its owner to a second party for a particular purpose. The law does not assume a man to be. a chattel, and the law will not infer that a_ passenger can so subordinate his individual volition to the volition of the carrier, who undertakes to transport him from one place to anoth*-, and to make that carrier a bailie of his person. A man may, of course, "bail" himself out, but that question falls more within the department of criminal law, and is within the special province of the police courts, whereas the law of bailment comes within the department of contract law."

"Tho history of the law of bailments, as known in English law, goes back to Roman days, and we find the various kinds of bailment dealt with in the Institutes of Justinian. It was not until tho year 1704, however, that any attempt was made to determine the exact nature of this form of contract and the law relating thereto. In that year a case came before the English Courts in which it was felt necessary to lay down some authoritative pronouncement of the general principles governing this form of contract and the law relating thereto. This was the famous case of Coggs v. Bernard, one of the most celebrated cases," Lord Haldane says, "ever decided at Westminster Hall as it lays down the first well-ordered exposition of the Engliih law on bailments." In this case, it was alleged that ''Bernard, the defendant, having undertaken, without pay, to safely remove several casks of brandy from one cellar to another, and lay them down safely in another, managed them so negligently that one of the casks was staved in, and the brandy became spilled on the ground." The plaintiff, Coggs, the owner of the brandy, sued the defendant, Bernard, ajid recovered damages. Lord Holt, in this case, in giving judgment, fully reviewed the history of the law on the subject, and stated the law of England as applicable to bailments very much as it is to be found in the Digest arm Institutes of Justinian, and his classification of the various kinds of bailments has been accepted as authoritative ever since.

" Mr. Toogood then wont on to deal with gratuitous bailments, and stated that the bailee must tako the same degree of care as an ordinary diligent man would take in the care of his own property. Ho could not escape liability even if he showed that he had kept the chattel in the same manner ss he kept like articles of his own, for he might be a careless man in looking after his own chattels, and the law required him, as a general rule, to measure up to the standard of the average man in these matters. He referred at some length to the recent case of Synions v. The Wellington Racing Club, and stressed that hotels, restaurants, theatres, dance committees, and similar bodies, taking charge of coats and wraps of' their guests, were liable under this judgment if their servants took delivery oi the articles, whether they are paid "for their services or not, but if a person simply hung his own hat and coat up in a hotel lounge himself, there could be no liability for loss attaching' to the proprietor.

The lecturer went on to outline the liability of bankers for safe custody of articles, and he emphasised tho fact that, although the bailment was gratuitous, a banker was liable for safe custody because he possessed skill and faculties that an ordinary person did not possess, and that the onus was on the banker as bailee to disprove negligence. If a banker received a reward for his services, he must exercise greater care than if ho acted gratuitously, and he must take the same care with the articles entrusted with him for safe custody as he did with his own valuables or securities. Mr. Toogood outlined a. banker's responsibility in regard to safe deposit locket's, and emphasise! tho principle that o. bunker was still liable for ncgli-

gence, unless he had a written indemnity exempting him from liability. He also mentioned the interesting case of Langtry v. The Union of London Bank, where the bank consented to judgment against itselt for £10,000 for valuables wrongfully delivered on a falsa order. The lecturer referred to several other classes of gratuitous bailments, and stated that in a case of a bailment by finding, a person finding an article and actually taking possession of it, is a bailee for the rightful owner, although he has a good title to it against all the world except the true owner. Mr. Toogood also gave a clear exposition of the law in regard to bailments for valuable consideration, and dealt with contracts of hire or custody, bailments for hire of chattels, hire and purchase agreements, contracts of hire of work and labour, pawns and pledges, and finally bailments to an auctioneer.

At the conclusion of his lecture, Mr. Toogood answered a number of questions, and was accorded a hearty vote of tnanks for his address, on the motion of Mr. Walter Green.