§ 3661. Liability of bailees. Although bailees without reward are liable only for gross negligence, the question of gross negligence depends in part upon the nature of the thing bailed. The test is to consider whether they have omitted that care which bailees without hire or mandataries of ordinary prudence usually take of property, of the nature of that in question. And liability depends upon the abuse of the thing hired, or such negligence in its use as brings responsibility upon the hirer. A bailee of mining stock is not liable for a sale of the bailor's stock, if he at all times holds and keeps for the bailor an equal number of shares of equal value, and replaces whenever called upon. If the bailee of personal property sell it in violation of his authority, the owner may, as a general rule, ratify the sale and demand the proceeds. § 3662. Several defenses. In an action to recover securities pledged with defendants, the defendants in their answer may deny knowledge, etc., sufficient to form a belief whether the securities belonged to plaintiff; and also aver that the securities were delivered to them by plaintiff as collateral to debts yet unpaid.10 The defendant answers to the complaint: That he is not now, and was not at the time mentioned in the complaint, or at any time, a common carrier.1 5 Tracy v. Wood, 3 Mason, 132. 6 Id. 7 See Jones on Bailm. 120; Reeves v. The "Constitution," Gilp. 579. 8 Atkins v. Gamble, 42 Cal. 86; 10 Am. Dec. 282. 9 Id. 10 Townsend v. Platt, 3 Abb. Pr. 325. 1 Forwarders and carriers distinguished. Place v. Union Express Co., 2 Hilt. 19. Forwarders remain liable as carriers so long as they retain the custody of the goods as such. Goold v. Chapin, § 3664. Denial of employment. Form No. 874. [TITLE.] The defendant answers to the complaint: That he did not undertake nor agree to carry the said goods to ..... and that said nor to deliver them there to ... never paid him, nor agreed to pay him any reward, for such service. Boxes of poultry packed in 3665. Negligence and delay. ice were delivered by the plaintiff to a carrier by steamboat, and his clerk signed a receipt for them, stating their contents. The boat was delayed by fog, no attention was paid to the poultry, and it was spoiled. Plaintiffs had long sent poultry by defendant's boat, who, when delayed, had often forwarded the same by rail. It was held that defendants were liable.2 A common carrier is not only responsible for negligence, but is an insurer against loss not occasioned by the act of God, the public enemies, or the fault of the party suffering the loss.3 When loss occurs, the burden of proof is upon the carrier to show that it resulted from one or the other of these excepted cases. An injury to a passenger without his fault is prima facie proof of negligence on the part of the carrier. § 3666. Denial of receipt of goods. [TITLE.] Form No. 875. The defendant answers to the complaint: That said... never delivered to him the said goods mentioned in said complaint, and that he never received the same, or any of them. The defendant answers to the complaint: That he denies, on his information and belief, that said goods were lost to the said and denies that he was 20 N. Y. 259; 75 Am. Dec. 398; compare, however, Johnson v. New York Cent. R. R. Co., 31 Barb. 196. 2 Peck v. Weeks, 34 Conn. 145. 3 Bohannan v. Hammond, 42 Cal. 227. Yeomans v. Contra Costa S. N. Co., 44 Cal. 72. negligent in and about the transporting, storing, or unloading of the same. The defendant answers to the complaint: That the goods mentioned in the complaint were delivered by the plaintiffs to, and received by, the defendants, upon a special contract between them, whereby it was provided that [state terms of contract]. § 3669. Effect of special contract. A common carrier may, by special contract, restrict or modify his common-law liability as an insurer of goods received for transportation. Or the carrier may contract that he shall have the benefit of any insurance effected by or on account of the owner. The validity of an express contract between the owner of goods and a carrier, limiting the general responsibility of the latter, is undoubted.8 § 3670. The same express company. A receipt given by an express company, and limiting their liability at the time of the delivery of them for carriage, is not a defense in an action for the loss of such goods, unless knowledge of the contents of the receipt is brought home to the plaintiff. The Adams Express Company gave receipts for goods, "value under fifty dollars, unless otherwise herein stated;" it was held that this did not exempt them from liability beyond that amount for goods lost by their want of ordinary care.10 A parcel worth six hundred and seventy-five dollars was lost in transportation by the Adams Express Company. Their agent had given a printed receipt containing a stipulation that in no event "shall the 6 Merc. Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Meyer v. Harnden's Express Co., 24 How. Pr. 290; and see § 1976, ante. 7 Merc. Mut. Ins. Co. v. Calebs, 20 N. Y. 173. 8 The New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344; Transportation Co. v. Bloch, 86 Tenn. 392; 6 Am. St. Rep. 847, and note; Falkenau v. Fargo, 55 N. Y. 642; S. C., 44 How. Pr. 325. 9 Belger v. Dinsmore, 51 Barb. 69. 10 Orndorff v. Adams Express Co., 3 Bush. 194; 96 Am. Dec. 207. 11 holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured" by the company, “and so specified in this receipt." The value of the parcel was not made known to the company, and it was not specially insured; it was held that the company was not liable for more than fifty dollars, with interest. It seems to be the prevailing rule that although common carriers may limit their responsibility by an express contract, they can not do so by a mere notice, even when the notice is brought to the knowledge of the person with whom they deal, unless it is also clearly and unequivocally assented to by them.12 But he may qualify his liability by general notice, as to the manner of delivery, or that information shall be given of the value of any article if it exceeds a certain sum, and that an additional price must be paid therefor.13 If the defense is the operation of a peril of a class excepted, the answer should specify what the particular peril was, so that the plaintiff may meet it.14 Where the complaint is ex contractu, and does not allege prepayment, an allegation that the plaintiff had notice of the condition on which the defendant received them, and delivered them with knowledge of it is enough.15 § 3671. Title to goods. The master of a vessel is entitled to prove that the goods which he failed to deliver at a certain place according to agreement belonged to a third party, who had forbidden such delivery, and that plaintiff had obtained possession of such goods by fraud.16 11 Brehme v. Adams Express Co., 25 Md. 328. 12 See Rawson v. Penn. R. R. Co., 48 N. Y. 212; 8 Am. Rep. 543; Blossom v. Dodd, 43 N. Y. 264; 3 Am. Rep. 701; Buckland v. Adams Express Co., 97 Mass. 125; 93 Am. Dec. 68; The New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344; Cal. Civil Code, § 2174; and see § 1947, ante. 13 See 2 Greenl. Ev., § 215; Orange County Bank v. Brown, 9 Wend. 115; Hopkins v. Westcott, 6 Blatchf. 64; Gorham Mfg. Co. v. Fargo, 45 How. Pr. 90; Hendricks' Ex'r v. Thornton, 45 Ga. 305; Cal. Civil Code, § 2176. 14 Woodworth v. McBride, 4 Wend. 227. 15 Wyld v. Pickford, 8 Mee. & W. 443. 16 Hayden v. Davis, 9 Cal. 573. The defendant answers to the complaint: I. That the goods mentioned in the complaint were a dangerous and explosive substance known as nitro-glycerine, which the plaintiff then well knew, but which the defendant did not know, and could not reasonably be expected to know. II. That the plaintiffs did not inform the defendant of the destructive nature of the goods, and negligently delivered the same to the defendant in bulk, and thereby induced the defendant to believe that the same might be placed in with other goods, casks, and boxes, without danger or injury. III. [State special contract, if any, which was thereby violated.] CHAPTER III. BY AGENTS, EMPLOYEES, AND OTHERS. 3673. Denial of negligence in sale. [TITLE.] Form No. 879. The defendant answers to the complaint, and alleges: That he was not negligent in and about selling said goods, but sold the same with due diligence, and for as large a price as he could obtain. $3674. Factor. A factor whose discretion in making sales is not limited by instructions is not, by selling forthwith, made liable for misfeasance, where it appears that he acted in consonance with the general opinion of dealers in the article at the time.1 § 3675. Denial of negligence in giving credit. [TITLE.] Form No. 880. The defendant answers to the complaint: That he sold said goods to one A. B., who was a merchant at .... .., in good standing and credit, for the sum of 1 Millbank v. Dennistoun, 10 Bosw. 382. |