The Hawaiian gazette., 1889-10-08

I tractor non-delivery of the gold +
: plaintiff.
I The PLAINTIFFS counsel, c. Creigh
, ton, contends that the facts Great,
r the relation of creditor and debto
, between plaintiff and defendant
The specific chattel was not to b,
returned, but gold was to be givel
r for silver. 1t was therefore a LOAF
and not a bailment citing Pattisor
rs. Syracuse, Nat. Bank, SO n. Y.
50 Benjamin on Sales, Sec. >, note
i; Hilliard on Sales, Chap.
Smiths Mere. Law, p. sol, n; Story
on Bailments, Oh. l; Edwards OF
Bailments, Oh. l; Jones on Bail
ments, p. 1-S6; > Parsons Corts, p.
$500.
If it was bailment the defend
ant is responsible for negligence
keeping plaintiffs money in a
drawer for eight days is gross neg
ligence.
The defendants counsel, p. Neu-
mann: This is gratuitous bail
ment. The defendant took the
same care of plaintiffs money that
he did of his own and his relatives
money, and there is no negligence
shown by plaintiff on whom the
burden rests.
The bailment was for the benefit
of the bailor and only gross negli-
gence will make the defendant
liable when the loss is from acct
dent: citing Jones' Bailments, %;
Parsons Conts., SO, %; Lloyd Us.
Vest Branch Bank, 10 Penn, 175;
Foster Us. ESSEX Bank, II Mass,
sol; Barker Us. Graham, 70 Penn,
LOG; COggs Us. Bernard, l Smiths
Leading Cases, p. 2S3; Kno,cles Us.
r. r. Co., IS Me-, 90; Smith Us.
Bank, SO Mass, COS; PAock Us.
Wells Fargo & Co., 100 Mass, 452.
By THE CoURT.-If this is con-
tract of bailment, 1 have TO doubt
that the law contended for by de-
PENDANTS counsel is correct, i. e.,
that when the deposit is for the
benefit of the bailor plaintiff) the
bailee (defendanD, if the service is
gratuitous, is liable in law for loss
by accident only in case gross neg
ligence or bad faith on his part is
shown.
But the difficulty here is to de-
eide whether this is a contract of
bailment, or of loan. In this case,
the plaintiffs specific silver was not
to be restored, but its nominal value
in gold. In Sir VIM. Jones' Essay
on Baiiments, PIP. "A and as, the
distinction is drawn, that if the
thing loaned is ''money, wine or
oil and ether things that may be
valued by number, weight or meas
ure, and a-e to be restored only in
equal value" "as the specific
things are not to be returned, the
ABSOLUTE property of them is. trans
fe=-ed to the borrower, who must
bear the loss of them if they be
les croyed," etc. On page los the
earned author says: "It may be
right also to mention that the dis
-inction before taken in regard to
oans between an obligation to re-
store the specific things and power
'r necessity of returning others of
equal value, holds good likewise in
he con ,ract of hiring and deposit
ng; in the first case it is a regular
in the second it becomes
| debt.
Eutum Us. Merry, Mason, 47s,
vas decided by Judge Story in {
S24. Here a. delivered cotton
arm to B. on a contract that the I
anne should be manufactured into !
'laids; B. was to find the filling,
nd was to weave as many yards of :
he plaids at fifteen cents per yard !
5 was equal to the value of the :
arm at sixty-five cents per yard. >
Held, that by delivery of the yarn ]
D B. the property thereof vested a
n him. The learned Judge says '
hat if the bailee is by the contract u
D return the specific article changed 2
y some process of manufacture a
LocdtiO operis faciendi," then it v
bailment, but here was COM Il
lutation of goods fer goods. "Cot-
IN yarn was here bargained for
lads to be delivered at future
me at certain stipulated prices" ;.
In the case before me, silver is =. -
OF to be manufactured into gold. p
-lchemy has not yet accomplished u
lis. But 500 gold coin was to be +,
wen in exchange for the 500 of u
liver coin. b
In Smith rs. Clark, 81 Wend., SO, v,
heat was delivered to miller to b
made into flour, he engaging TO b
oliver for every four bushels and W
fty-five pounds of wheat one bar n
i of superfne -four. Held that as al
Iere was no engagement to keep ~
Ie wheat distinct, or that the y
entical wheat should be returned :,
the form of -four it was a sale - -
Id not a 6dilnlent. =
When an article is delivered to sv
. manufactured or altered and the be
ecific thing is to be restored, it is W
It contract of sale, but regular tn
iImauf To11f;c 1v,o,.sz | m