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cause of action.

refused.

(223 Mich. 343, 193 N. W. 820.) ant's duty to take reasonable and If so, the demand and acceptance of proper care of it; that defendant, payment was undisregarding such duty, did wrong- justifiable, and re- Work and labor

-receiving pay fully and unlawfully use and allow covery

might be for repairs the car to be used, whereby it be- had for want of con- -recovery.

improperly made came seriously damaged; and that sideration therefor. the repair work was not properly Murphy v. McGraw, 74 Mich. 318, 41 done. We think it sufficiently stated N. W. 917. We have no doubt, after

a cause of action. reading the entire charge, that the Complaintinjury by bailee

In 6 C. J. 1152, the jury understood they should allow rule is thus stated : this item to plaintiff only in the

“The bailor may sue event that they found it was paid in case, where the subject-matter of on the assurance of defendant that the bailment has been misused by the work done made "the car all the bailee, or where a loss or injury right," and that such assurance was to the property has occurred from not true. There can be no question the latter's neglect. In fact, case but that plaintiff might recover if may be brought for any breach by the work done on the car, and for the bailee of duties implied by law which payment was made, in no way from the existence of the relation of improved the condition of the car, bailor and bailee, and if the duty but, on the contrary, caused it to be alleged to have been violated is one

more greatly damaged when it was that arises out of the relation, it is

afterwards driven. The claim of Trial-directed no objection to an

the defendant was before the jury, verdict-when action in case that

and we doubt not was forcibly urged the performance of the duty has been expressly stipu

by counsel. It is said that this item lated for.” The motion for a di

could only be recovered in an action rected verdict was properly denied.

of assumpsit. The allegation in the 2. Counsel urge that the court

declaration relative to it is specific, erred in permitting a recovery for

and the claim itemized in the bill of the item of $40.71 paid by plaintiff particulars filed. If not recoverable to defendant for repairs. The court

in an action of trespass on the case, instructed the jury that, to entitle

a count in assumpsit might have

been added. Under plaintiff to recover for this item, he must prove that it “was received

circuit court rule Pleading

adding count to by Mr. Dupont unjustifiably and

No. 22 (191 N. W. cover claim wrongfully,

and that it was

xvii) it may be pleaded.

added after judgpaid in order to avoid trouble with

ment. The amount paid is not in Mr. Dupont, and was really paid under duress." It is plaintiff's claim dispute.

dispute. Whether defendant was

liable for its repayment was a questhat, when he made this payment, he asked the defendant's son, in the

tion for the jury under the proofs. presence of the defendant:

“ 'Is

We may, and do,
treat the amend- for jury-money

Trial-question this car all right?' He says, “Yes, sure;' so I paid him everything that

ment as here made, improperly

paid.

in order to sustain they asked for." The use of the word “duress" was

the judgment. Johnson v. Muskeunfortunate. There is no proof that

gon County, 195 Mich. 722, 162 N. defendant required the payment of

W. 341; Peacock v. Detroit, G. H. & this sum as a condition precedent to

M. R. Co. 208 Mich. 403, 8 A.L.R. the delivery of the car to plaintiff.

669, 175 N. W. 580. There is proof, however, that it was

Finding no reversible error, the paid for repair work which in no

judgment is affirmed. way benefited the plaintiff; in fact, Wiest, Ch. J., and Fellows, Mcresulted in greater damages to the Donald, Clark, Bird, Moore, and car when it was afterwards driven. Steere, JJ., concur.

ANNOTATION.

Recovery back of amount paid to bailee for repairs of no benefit to bailor.

Assumpsit for money had and received lies to recover back money paid on a contract, the consideration of which has failed. 2 R. C. L. 788. The reported case (LAPLANTE v. DUPONT, ante, 694) seems to be one of first impression on the right to recover, on the ground of want of consideration, an amount paid to bailee for repairs of no benefit to the bailor. If the repairs are of some value, though they do not satisfy the express or implied undertaking of the bailee, it would

seem an action for damages for breach of the contract would be the appropriate remedy, assuming that payment had been made in justifiable ignorance of the defects.

For liability of one contracting to make repairs for damages for improper performance of the work, see annotation in 1 A.L.R. 1654.

For duty and liability of garage keeper to owner of car, see annotation in 15 A.L.R. 681. L. S. E.

JOHN M. MILLER, Appt.,

V.
BANK OF HOLLY SPRINGS.

Mississippi Supreme Court (Division A) – February 12, 1923.

(131 Miss. 55, 95 So. 129.)

Bank - loss of saving stamps - burglary liability.

1. In a case where a bank had on special deposit war savings stamps of one of its customers for safe-keeping, which had been placed in the bank's vault instead of in its safe, where its money was kept, and such customer, on learning from the public press that many banks in the country were being burglarized and United States war savings stamps and Liberty bonds of their customers stolen therefrom, informed said bank that he desired to move said war savings stamps to another bank for safekeeping, because he was afraid to have said stamps remain in its vault, and thereupon said bank agreed that if said depositor would permit his said stamps to remain with it, they would be placed in its safe where its money was kept, which was burglar proof, which proposition said depositor accepted, and said bank violated said agreement by permitting said stamps to remain in its vault, which was burglarized and said stamps stolen therefrom, while its safe where it kept its money was not. Held, said agreement is a special and not a general contract of bailment, and based on a sufficient consideration, and therefore said bank is liable to said depositor for the loss suffered by him.

[See note on this question beginning on page 703.] power to guard valuables.

ury notes, or other valuable thing," is 2. A bank whose charter confers the authorized to receive for safe-keeping, power on it “to receive on deposit in as special deposits, valuables of its any sum not less than $1 in value of customers. gold or silver coin, bank notes, treas

[See 3 R. C. L. 450; 1 R. C. L. Supp.

829.] Headnotes by ANDERSON, J.

(131 Miss. 55, 95 So. 129.) Contract consideration, sufficien- doing anything which he has the right су.

to do, whether there be any actual 3. There is a “sufficient considera- loss to him or actual benefit to the tion" for a promise if there be any party making the promise; and such benefit to the promisor, or any loss, consideration is sufficient, even though detriment, or inconvenience to the it be inadequate. promisee, or if the person to whom [See 6 R. C. L. 654; 2 R. C. L. Supp. the promise is made refrains from 173; 4 R. C. L. Supp. 432.]

APPEAL by plaintiff from a judgment of the Circuit Court for Marshall County (Roane, J.) in favor of defendant in an action brought to recover the loss of war savings stamps, alleged to have been caused by breach of its agreement to put them in a burglar-proof safe. Reversed.

The facts are stated in the opinion of the court

Messrs. Wells, Stevens, & Jones, for There was a sufficient consideration appellant:

to support the contract in question. Defendant, having failed to keep its Odineal v. Barry, 24 Miss. 20; Byrne agreement to place the stamps in its v. Cummings, 41 Miss. 192; Magee v. safe, was liable to plaintiff for their Catching, 33 Miss. 672; Turner v. loss.

Brown, 3 Smedes & M. 425; Lawson, Tallahatchie Compress & Storage Co. Contr. 2d ed. § 98. v. Hartshorn, 125 Miss. 662, 17 A.L.R. Defendant cannot be heard to say 974. 88 So. 278; 4 Elliott, Contr. 3 that the act of receiving plaintiff's 3100; 40 Cyc. 431; 27 R. C. L. 999; 6 securities was ultra vires. C. J. 1111; Wiley v. Locke, 24 L.R.A. First Nat. Bank v. Graham, 100 U. (N.S.) 1117, 19 Ann. Cas. 241 and S. 701, 25 L. ed. 751, 1 Am. Neg. Cas. notes, 81 Kan. 143, 105 Pac. 11; Morti- 588; Elon College v. Elon Bkg. & T. mer v. Otto, 206 N. Y. 89, 99 N. E. 189, Co. 182 N. C. 298, 17 A.L.R, 1205, 109 Ann. Cas. 1914A, 1121, 2 N. C. C. A. S. E. 6; Pattison v. Syracuse Nat. 85; McCurdy v. Wallblom Furniture & Bank, 80 N. Y. 82, 36 Am. Rep. 589. Carpet Co. 94 Minn. 326, 102 N. W. Mr. Lester G. Fant, for appellee: 873, 3 Ann. Cas. 468; Sawyer v. Wil- If bonds are stolen the bank is rekinson, 166 N. C. 497, L.R.A.1915B, lieved of any liability, provided that 296, 82 S. E. 840.

the burglary is not made possible by The relationship between plaintiff gross negligence of the bank. and his bank was that of bailor and Wylie v. Northampton Nat. Bank, bailee.

119 U. S. 361, 30 L. ed. 455, 7 Sup. Ct. National Safe Deposit Co. v. Stead, Rep. 268. 250 Ill. 584, 95 N. E. 973, Ann. Cas. In a special deposit no title passes 1912B, 430; Mayer v. Brensinger, 180 to the bank, but the bank holds as a Ill. 110, 72 Am. St. Rep. 196, 54 N. E. bailor of the depositor. 159; Jones v. Morgan, 90 N. Y. 4, 43 Fogg v. Tyler, 39 L.R.A.(N.S.) 847 Am. Rep. 131; Cussen v. Southern and note, 109 Me. 109, 82 Atl. 1008, California Sav. Bank, 133 Cal. 534, Ann. Cas. 1913E, 41. 85 Am. St. Rep. 221, 65 Pac. 1099; 6 A special deposit is deemed gratuC. J. 1127.

itous if it is accepted for the accomThe contract of bailment has been modation of the depositor, and without enlarged by special agreement guard- any undertaking by him, expressed or ing against theft and loss by theft, implied, to pay or do anything as comand the defendant is bound not only pensation or reward for keeping the by the legal relationship imposed by deposit. the law of bailment, but by the spe

Merchants Nat. Bank v. Guilmartin, cific undertaking assumed, and by the 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831; circumstances and situation of the First Nat. Bank v. Ocean Nat. Bank, parties.

60 N. Y. 278, 19 Am. Rep. 181; First First Nat. Bank v. Graham, 100 U. Nat. Bank v. Graham, 79 Pa. 106, 21 S. 699, 25 L. ed. 750, 1 Am. Neg. Cas. Am. Rep. 49; 3 R. C. L. 187. 588.

While unquestionably a bank would Messrs. E. M. Smith, E. C. Wright, be liable for the loss of a special deand D. M. Featherston, also for ap- posit for safe-keeping, but without repellant:

ward, through its gross negligence, yet unless it was guilty of gross negli- were kept, had been burglarized and gence it is not liable for the loss of

said stamps stolen therefrom. At such a deposit.

the conclusion of the evidence there Merchants Nat. Bank v. Guilmartin,

was a directed verdict in favor of 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831,

appellee, and judgment accordingly, 93 Ga. 503, 44 Am. St. Rep. 182, 21 S. E. 55; Foster v. Essex Bank, 9 Am.

from which appellant prosecutes Dec. 168 and note, 17 Mass. 479, 1 Am.

this appeal. Neg. Cas. 502; First Nat. Bank v. A reversal is asked upon that acOcean Nat. Bank, 60 N. Y. 278, 19 Am. tion of the court. Therefore, the Rep. 181; Lloyd v. West Branch evidence must be treated as proving Bank, 15 Pa. 172, 53 Am. Dec. 581, 1 every fact favorable to appellant's Am. Neg. Cas. 574; Scott v. National

case which it either proves or tends Bank, 72 Pa. 471, 13 Am. Rep. 711; First Nat. Bank v. Graham, 79 Pa. 106,

to prove. So considering the evi. 21 Am. Rep. 49; First Nat. Bank v.

dence, appellant made the following Rex, 89 Pa. 308, 33 Am. Rep. 767; Whit

case: Appellee had in its bank a ney v. First Nat. Bank, 55 Vt. 155, 45 Corliss safe, in which it kept its Am. Rep. 598, 1 Am. Neg. Cas. 582; money, Liberty bonds of its cusIsham v. Post, 38 Am. St. Rep. 780, tomers, and other valuables. In adnote; Merchants' Nat. Bank v. Carhart, dition, it had a steel-lined vault in 51 Am. St. Rep. 101, note; Gray v. which it kept as special deposits the Merriam, 32 L.R.A. 771, note.

war saving stamps of its customers, The bank does not undertake to ex

as well as other valuables. In June, ercise any greater care in the preservation of special deposits than the

1918, appellant purchased through depositor has reasonable right to sup

appellee United States war saving pose is exercised in keeping the bank's stamps of the maturity value of property of like description.

$1,000, which he left on special de United Soc. v. Underwood, 9 Bush, posit with appellee for safe-keeping. 609, 15 Am. Rep. 731; Preston v. These stamps were placed by an Prather, 137 U. S. 604, 34 L. ed. 788, officer of the appellee in its said 11 Sup. Ct. Rep. 162, 1 Am. Neg. Cas.

vault. In the summer or early 599.

fall of 1919 the vaults of a good As a general rule a bank is not liable for loss of a special deposit for

many banks over the country were which it receives no compensation, by

being burglarized, and United the theft of its cashier or other sery

States Liberty bonds and war savant, provided it has not been guilty ing stamps stolen therefrom. APof negligence in any respect.

pellant, learning of this fact through Merchants Nat. Bank v. Guilmartin, the public press, approached Mr. 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831; Fort, who was the active president Foster v. Essex Bank, 17 Mass. 479, 9

of appellee bank as well as a diAm. Dec. 168, 1 Am. Neg. Cas. 502;

rector therein, and stated to him Smith v. First Nat. Bank, 99 Mass. 605, 97 Am. Dec. 59, 1 Am. Neg. Cas. 523;

that, in view of these burglaries, Scott v. National Bank, 72 Pa. 471,

he was uneasy about his war sav13 Am. Rep. 711; First Nat. Bank v. ing stamps remaining in appelRex, 89 Pa. 308, 33 Am. Rep. 767. lee's said vault, and therefore deAnderson, J., delivered the opin- bank for safe-keeping. Mr. Fort in

sired to remove them to another ion of the court:

response stated that if appellant Appellant, John M. Miller, sued

would permit his stamps to remain appellee, Bank of Holly Springs, in

in appellee bank, he would, in order the circuit court of Marshall county

to assure their safety, put them in for the value of United States war the Corliss safe, where the money saving stamps owned by him of the of the bank was kept; and in this maturity value of $1,000, which ap- connection stated that it would take pellee held as a special deposit, and a burglar twenty-four hours to get failed to return to appellant on de- into said Corliss safe. Thereupon mand because of the fact that its appellant agreed that the stamps bank vault, where said stamps should remain on deposit with ap(131 Miss. 55, 95 So. 129.) pellee upon condition that they were said contract was one of special put in that safe. In November bailment, with sufficient considera1919, appellee's vault was burglar- tion to support it, and appellee, havized, and the appellant's stamps ing violated its terms, is liable to stolen therefrom, appellee having appellant for the loss suffered by failed to place them in its Corliss him as the result of such breach, safe as agreed, which was not bur- and that whether appellee was negglarized, and therefore appellant's ligent or

ligent or not in

not in handling said loss was caused by appellee's breach stamps has no bearing on the quesof its agreement.

tion of its liability to appellant. Appellee contends that under the Was said contract based on a sufprovisions of its charter the action ficient consideration in law? If it of its officers in receiving special was, appellee is liable to appellant deposits of this character was ultra for his loss, regardless of the facts vires, for the reason that its charter that it took the same care of appeldid not authorize it to receive that lant's stamps that it did of its own character of deposits. Section 4 of and those of its other depositors, appeilee's charter, among other and regardless of whether such powers, confers on appellee (quot- care constituted negligence or not, ing its language): “That said com- for the contract was binding accordpany shall be authorized to receive ing to its terms. on deposit, in any sum not less than The evidence shows that appel$1 in value of gold or silver coin, lant was a regular customer of apbullion, bank notes, Treasury notes, pellee, not only as a special deposior other valuable thing." (Italics tor, but as a general depositor with ours.)

a checking account. The court We are of the opinion that United knows, and will take judicial notice States war saving stamps come of what is a matter of common within the language as well as the knowledge, that receiving and keep

intent and purpose ing for their customers special deBank-power to guard valuables.

of appellee's char- posits of valuables of the character

ter. “Other valu- here involved is a large and very able thing" is very broad and com- important part of the business of prehensive. It is sufficient to in- banks; the main purpose being to clude anything of value which is induce such depositors to keep with ordinarily deposited with banks for them their surplus moneys

on safe-keeping. And, furthermore, checking, time deposit, and savings appellee's managing officers so con- accounts. In fact, a bank refusing strued its charter, and in dealing its customers such facilities for with its customers acted on such the safe-keeping of their valuables construction; therefore, if there would be at a great disadvantage in were any ambiguity in its charter competing with other banks furin that respect, such construction nishing such means. would control as between appellee There is a sufficient consideraand its customers relying thereon. tion for a promise if there be any

Appellee contends that said con. benefit to the promisor or any loss, tract of deposit was without con- detriment, or incon

Contract-consideration moving to it; therefore venience to the sideration

sufficiency. it held said deposit merely as a promisee. The congratuitous bailee, and is not liable sideration to be sufficient in law to appellant for its loss unless such need not be adequate. The considloss was caused by appellee's negli- eration is sufficient if the person to gence, and, there being no evidence whom the promise is made refrains of such negligence, the action of from doing anything which he has the trial court in directing a verdict the right to do, whether there be for appellee was authorized. On the any actual loss to him, or actual other hand, appellant contends that benefit to the party making the

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