— Part
II.
Gratuitous Bailment.
533
or damage to the chattel with which he has been intrusted by its owner. His liability then depends upon the terms of the contract (x). Consequently, if the bailee, in assuming possession of the chattel, expressly undertakes to keep it safely, he enlarges the measure of his responsibility, and by virtue of his express agreement may even make himself an insurer of it (a). Yet such a bailee's responsibility is limited in some respects. For though his undertaking to keep the chattel intrusted to him safely binds him to keep it safely against all perils and answer for accidents or theft (6), yet he will not be liable in the case of casualties happening by an act of God, such as fire or tempest, or by the King's enemies (e), and it is immaterial whether the contract is verbal or in writing {d)
^i^gt. i.
Deposit.
.
1084. The bailee must return the chattel bailed to the bailor on Return demand, otherwise he may be sued in detinue or trover, and he is ^^^^^ further liable for damages occasioned by loss of use during the period for which it is detained (e). He is equally responsible for it, notwithstanding it is no longer in his possession or custody, or in that of anyone over whom he can exercise control, if he parted with it without just cause (/). But he is excused if his failure to return it arises from its loss or destruction without any default on his part
{g).
1085. Where a customer leaves valuables with his bankers (li) any other trader to retain his plates or chattels, upon which the trader may have worked, it is not always easy to say whether the bailment is gratuitous (depositum) or one for reward to the bailee (locatio custodice). Although no specific charge for keeping is made, it may well be for safe custody, or allows a printer or
that
the
custodian
gets
indirectly
some consideration
service, either in being allowed to continue to
account, or in the prospect of future work
(i).
for
the
keep the customer's
As a general
rule,
(x) Trefftz v. Canelli (1872), L. R. 4 P. C. 277, 281 ; Kettle v. Bromsall (1738), Willes, 118, 121. (a) Jones on Bailments, p. 43, where Southcote^s Case (1601), 4 Co. Rep. 83 b, is discussed. (6) Kettle v. Bromsall, supra. (c) Coggs v. Bernard (1703), 2 Ld. Raym. 909, at p. 918. {d) Ibid, at p. 915. (e) Nyherg v. Handelaar, [1892] 2 Q. B. 202 ; Granch v. White (1835), 1 Bing. (N. c.) 414, 420 Cullen v. Barclaij (1881), 10 L. R. Ir. 224. Wilkinson (/) Jones V. Dowle (1841), 9 M. & W. 19, per Parke, B., at p. 20 V. Verity (1871), L. R. 6 C. P. 206. {g) Taylor v. Caldwell (1863), 3 B. & S. 826, per Blackburn, J., at p. 838. (h) Gihlin v. McMullen (1869), L. R. 2 P. C. 317, where bankers with whom the plaintiff's testator had deposited for safe custody a box (of which he kept the key) containing railway debentures, which were stolen hj the bankers' cashier, who had the keys of the strong room, were found to be gratuitous bailees, as were the bankers in Scott v. National Bank of Chester Valley (1874), 10 Canada L. J. (n. s.) 182 while those in Re United Service Co., Johnston's Cla,im (1871), 6 Ch. App. 212, were held to be bailees for reward. See also title Bankers and Banking, For forms applicable to deposit of valuables with bankers, pp. 627 et seq., post. yee Encyclopsedia of Forms, Vol. II., p. 471. (i) Bullen v. Swan Electric Engraving Co. (1906), 22 T. L. R. 275, ^er Walton, J., at p. 277, affirmed (1907), 23 T. L. R. 258. See also title Press and Printing.
of
Deposits with ^^^^^^^^
