(223 Mich. 343, 193 N. W. 820.) has done it so improperly as to injure the article on which it is done is unjustifiable and the amount may be recovered for want of consideration. [See note on this question beginning on page 698.] Evidence of use of car - sufficiency. 2. That the gears on an automobile, which were in good condition when the car was placed in storage, were found stripped when the owner sought to take it out, and that the speedometer had stopped working and the tires showed additional wear, will carry to the jury the question of the use of the car by the bailee, although he and his servants deny such use. Trial instruction · loss caused by bailee. 3. Where an automobile placed in storage shows signs of use by the bailee, when taken out, and repairs made necessary by such use are improperly made, an instruction in an action to hold the bailee liable for the injury, which places upon the owner the burden of proving that the use was made by defendant or someone in his employ, with his permission or under his direction, and that the repair work was not done in a good and workmanlike manner, is as favorable as defendant is entitled to. [See 3 R. C. L. 151; 1 R. C. L. Supp. 775; 4 R. C. L. Supp. 176. See also note in 15 A.L.R. 697.] Trial directed verdict when refused. 5. A verdict cannot be directed for defendant if there is evidence which will support a finding for plaintiff. [See 16 R. C. L. 185; 2 R. C. L. Supp. 545; 26 R. C. L. 1068; 3 R. C. L. Supp. 1491; 4 R. C. L. Supp. 1694.] Pleading - adding count to cover claim improperly pleaded. 6. If a claim for a return of money paid for repairs improperly made in an action on the case is erroneous, a count in assumpsit may be added. Trial question for jury money improperly paid. 7. The jury must determine whether or not the money paid for repairs improperly made on an automobile may be recovered for want of consideration. ERROR to the Circuit Court for Houghton County (O'Brien, J.) to review a judgment in favor of plaintiff in an action brought to recover damages for injuries to his automobile, alleged to have been in good condition when left with defendant for storage. Affirmed. The facts are stated in the opinion of the court. Messrs. Galbraith & McCormack for appellant. Messrs. Anthony Lucas and Edward F. Le Gendre for appellee. Sharpe, J., delivered the opinion of the court: The plaintiff, a resident of Hancock, owned a Chalmers automobile (1910 model). In the fall of 1919 he left it in defendant's garage in Laurium for storage during the winter, and also to have the mud guards and hood painted. It is his claim that it was then in good working condition. When he went after it in the spring of 1920, the painting had not been done. He testified that when he went again, some weeks later, "they were taking the car apart. I says, 'What's the matter?" 'Oh,' he said, 'you stripped the gears last fall.' I says, 'If there is any gears stripped, you must have done it yourself. How could I come from Hancock up here with the gears stripped and didn't know anything about it?' 'Well,' I says, 'if the gears is stripped, fix it up.' They told me they could hardly get it from the warehouse to the garage." He further testified that he returned for the car on July 6; that he was then told it was all right, and paid defendant's bill for repairs-$40.71; that on his way home it "got out of gear; the lever fell out;" that he had to hold the lever in his hand, or it would get out of gear; that he took it back; that they advised him to use it a little longer; that he next drove it about the 1st of August; that when he had driven it half a block "the wheels fell down through, one wheel there, one of the gears, you know, fell down on the street;" that he telephoned defendant, and he sent a truck after it and took it to his garage; that he went after it again in two or three weeks, and defendant told him it was not ready-"we can't get the stuff.' He says, "The box is broke, and we can't get them kind of boxes any more; the company that used to make them is busted."" That he then took it to a garage in Red Jacket and had it repaired at a cost of $163.99. Plaintiff's claim is based on an allegation that his car was in good working condition when he left it with defendant in the fall of 1919 and that its after condition was due to its use while in defendant's possession and his failure to do the repair work properly. Plaintiff claimed the right to recover the $163.99 paid for repairs, the $40.71 paid to defendant, $125 for loss of the use of the car, $30 for damages to speedometer, $50 for depreciation in tires, due to such use, and $8 paid for towing the car to Red Jacket-in all, $417.70. The last three items were eliminated in the instructions of the trial court. His right to recover on the others was submitted to the jury, who found in his favor in the sum of $260. Defendant's motion for a directed verdict, having been reversed, was renewed, together with a motion for a new trial, and both denied. Defendant here reviews the judgment entered on the verdict on writ of error. 1. The right to a directed verdict is based on the claim that there was no evidence that the car had been used by defendant or any person in his employ. While there was no di sufficiency. rect proof of usage, and such use was denied by defendant and his employees, we are persuaded that under the testimony an issue of fact for the jury was Evidence-of presented. Plain- use of cartiff's testimony, if believed, establishes the fact that the car was in good working condition when he left it with defendant. He also testified that the speedometer was then "working all right," and that when he took it away it would not work at all; that the tires were worn down a little more than when he left it. "There was more of the fabric showing. . . . I found out the tires were worn out a good deal more than when I put the car there. There were lots of scratches around the doors, and one of the seats, one of the small seats, was ripped a little, and someone went to sew it up, and I found some thread and needle in the box under the seat, and I am sure I never had the use of that myself; never had no needles there, and there was none there when I bought the car neither, I know. I never saw a torn spot in the seat. . . I looked, and I see it was ripped a little. The thread was sticking out in the cushion." This testimony, if believed, clearly established the fact that some person had used the car during the time it was in defendant's possession. The charge imposed the duty on the plaintiff to prove that either the defendant himself, "or someone in his employ, with his permission, or under his direction, used that car. drove it during the time when it was supposed to be in the storage warehouse," and that the repair work "was not done in a good, workmanlike manner." This was as favorable to the defend Trial-instrucant as he was en- tion-loss titled to, under the caused by bailee. law applicable to a bailment for the mutual benefit of the parties. It is also contended that the declaration did not set up a cause of action. It alleges the contract made with defendant to store and paint a part of the car; that it was defend Complaintinjury by bailee -cause of action. (223 Mich. 343, 193 N. W. 820.) ant's duty to take reasonable and proper care of it; that defendant, disregarding such duty, did wrongfully and unlawfully use and allow the car to be used, whereby it became seriously damaged; and that the repair work was not properly done. We think it sufficiently stated a cause of action. In 6 C. J. 1152, the rule is thus stated: "The bailor may sue in case, where the subject-matter of the bailment has been misused by the bailee, or where a loss or injury to the property has occurred from the latter's neglect. In fact, case may be brought for any breach by the bailee of duties implied by law from the existence of the relation of bailor and bailee, and if the duty alleged to have been violated is one that arises out of the relation, it is no objection to an action in case that the performance of the duty has been expressly stipu Trial-directed verdict-when refused. lated for." The motion for a directed verdict was properly denied. 2. Counsel urge that the court erred in permitting, a recovery for the item of $40.71 paid by plaintiff to defendant for repairs. The court instructed the jury that, to entitle plaintiff to recover for this item, he must prove that it "was received by Mr. Dupont unjustifiably and wrongfully, and that it was paid in order to avoid trouble with Mr. Dupont, and was really paid under duress." It is plaintiff's claim that, when he made this payment, he asked the defendant's son, in the presence of the defendant: "Is this car all right?' He says, 'Yes, sure;' so I paid him everything that they asked for." The use of the word "duress" was unfortunate. There is no proof that defendant required the payment of this sum as a condition precedent to the delivery of the car to plaintiff. There is proof, however, that it was paid for repair work which in no way benefited the plaintiff; in fact, resulted in greater damages to the car when it was afterwards driven. -receiving pay If so, the demand and acceptance of payment was unjustifiable, and re- Work and labor covery might be for repairs had for want of con- -recovery. sideration therefor. improperly made Murphy v. McGraw, 74 Mich. 318, 41 N. W. 917. We have no doubt, after reading the entire charge, that the jury understood they should allow this item to plaintiff only in the event that they found it was paid on the assurance of defendant that the work done made "the car all right," and that such assurance was not true. There can be no question but that plaintiff might recover if the work done on the car, and for which payment was made, in no way improved the condition of the car, but, on the contrary, caused it to be more greatly damaged when it was afterwards driven. The claim of the defendant was before the jury, and we doubt not was forcibly urged by counsel. It is said that this item could only be recovered in an action of assumpsit. The allegation in the declaration relative to it is specific, and the claim itemized in the bill of particulars filed. If not recoverable in an action of trespass on the case, a count in assumpsit might have been added. Under adding count to circuit court rule PleadingNo. 22 (191 N. W. cover claim xvii) it may be pleaded. added after judg improperly Trial-question ment. The amount paid is not in Whether defendant was dispute. liable for its repayment was a question for the jury under the proofs. We may, and do, treat the amend- for jury-money ment as here made, improperly in order to sustain the judgment. Johnson v. Muskegon County, 195 Mich. 722, 162 N. W. 341; Peacock v. Detroit, G. H. & M. R. Co. 208 Mich. 403, 8 A.L.R. 669, 175 N. W. 580. paid. Finding no reversible error, the judgment is affirmed. Wiest, Ch. J., and Fellows, McDonald, Clark, Bird, Moore, and 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. 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. 2. A bank whose charter confers the power on it "to receive on deposit in any sum not less than $1 in value of gold or silver coin, bank notes, treas Headnotes by ANDERSON, J. ury notes, or other valuable thing," is authorized to receive for safe-keeping, as special deposits, valuables of its customers. [See 3 R. C. L. 450; 1 R. C. L. Supp. 829.] Contract су. (131 Miss. 55, 95 So. 129.) consideration— sufficien 3. There is a "sufficient consideration" for a promise if there be any benefit to the promisor, or any loss, detriment, or inconvenience to the promisee, or if the person to whom the promise is made refrains from doing anything which he has the right to do, whether there be any actual loss to him or actual benefit to the party making the promise; and such consideration is sufficient, even though it be inadequate. [See 6 R. C. L. 654; 2 R. C. L. Supp. 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 appellant: Defendant, having failed to keep its agreement to place the stamps in its safe, was liable to plaintiff for their loss. Tallahatchie Compress & Storage Co. v. Hartshorn, 125 Miss. 662, 17 A.L.R. 974. 88 So. 278; 4 Elliott, Contr. § 3100; 40 Cyc. 431; 27 R. C. L. 999; 6 C. J. 1111; Wiley v. Locke, 24 L.R.A. (N.S.) 1117, 19 Ann. Cas. 241 and notes, 81 Kan. 143, 105 Pac. 11; Mortimer v. Otto, 206 N. Y. 89, 99 N. E. 189, Ann. Cas. 1914A, 1121, 2 N. C. C. A. 85; McCurdy v. Wallblom Furniture & Carpet Co. 94 Minn. 326, 102 N. W. 873, 3 Ann. Cas. 468; Sawyer v. Wilkinson, 166 N. C. 497, L.R.A.1915B, 296, 82 S. E. 840. The relationship between plaintiff and his bank was that of bailor and bailee. National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N. E. 973, Ann. Cas. 1912B, 430; Mayer v. Brensinger, 180 Ill. 110, 72 Am. St. Rep. 196, 54 N. E. 159; Jones v. Morgan, 90 N. Y. 4, 43 Am. Rep. 131; Cussen v. Southern California Sav. Bank, 133 Cal. 534, 85 Am. St. Rep. 221, 65 Pac. 1099; 6 C. J. 1127. The contract of bailment has been enlarged by special agreement guarding against theft and loss by theft, and the defendant is bound not only by the legal relationship imposed by the law of bailment, but by the specific undertaking assumed, and by the circumstances and situation of the parties. First Nat. Bank v. Graham, 100 U. S. 699, 25 L. ed. 750, 1 Am. Neg. Cas. 588. Messrs. E. M. Smith, E. C. Wright, and D. M. Featherston, also for appellant: There was a sufficient consideration to support the contract in question. Odineal v. Barry, 24 Miss. 20; Byrne v. Cummings, 41 Miss. 192; Magee v. Catching, 33 Miss. 672; Turner v. Brown, Smedes & M. 425; Lawson, Contr. 2d ed. § 98. Defendant cannot be heard to say that the act of receiving plaintiff's securities was ultra vires. First Nat. Bank v. Graham, 100 U. S. 701, 25 L. ed. 751, 1 Am. Neg. Cas. 588; Elon College v. Elon Bkg. & T. Co. 182 N. C. 298, 17 A.L.R. 1205, 109 S. E. 6; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 36 Am. Rep. 589. Mr. Lester G. Fant, for appellee: If bonds are stolen the bank is relieved of any liability, provided that the burglary is not made possible by gross negligence of the bank. Wylie v. Northampton Nat. Bank, 119 U. S. 361, 30 L. ed. 455, 7 Sup. Ct. Rep. 268. In a special deposit no title passes to the bank, but the bank holds as a bailor of the depositor. Fogg v. Tyler, 39 L.R.A. (N.S.) 847 and note, 109 Me. 109, 82 Atl. 1008, Ann. Cas. 1913E, 41. A special deposit is deemed gratuitous if it is accepted for the accommodation of the depositor, and without any undertaking by him, expressed or implied, to pay or do anything as compensation or reward for keeping the deposit. Merchants Nat. Bank v. Guilmartin, 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181; First Nat. Bank v. Graham, 79 Pa. 106, 21 Am. Rep. 49; 3 R. C. L. 187. While unquestionably a bank would be liable for the loss of a special deposit for safe-keeping, but without reward, through its gross negligence, yet |