in the form of a proceeding in garnishment.16 He may, at any rate, defend against an action for their recovery and be entitled to reimbursement by his bailor for the costs and expenses of such defense if reasonably incurred. The statutes of many States, also, now allow the bailee in such cases to interplead his bailor and the third party. Some authorities, indeed, claim that this may be done independently of statute.17 These authorities are too sweeping, however, in their generalizations. The common-law right of interpleader, indeed, only exists where there is "some sort of privity between all of the parties, of estate, title or contract." Parties claiming absolutely adverse rights, not founded in any privity of title or on any common contract, cannot be compelled to interplead.18

§ 22. Negligence-How Proved. A failure to return the chattel in as good a condition as it was in when received, or a failure to return it altogether, is of itself presumptive evidence of negligence or breach of duty on the part of the bailee. In order to make out a prima facie case, therefore, all that the bailor need prove is the delivery, the value of the article delivered, the condition in which delivered, the failure of redelivery or delivery in a damaged condition and the difference in the value of such article in its damaged and in its original condition, or, if it is not redelivered at all, its market value at the time and at the place where the delivery should have been made. The burden of proceeding is then upon the bailee, and it is for him to disprove the presumption of negligence, by proof of the specific cause of the loss which itself must not be suggestive of negligence. Even though the bailee prove that the goods were destroyed by the act of God, the public enemy, by fire, or by some cause exempted in the contract of bailment, he may still be held liable if his own negligence contributed to such loss or made such act operative. In such cases, except where the excuse given itself suggests negligence, however, the duty of pro

16 Kent's Comm. 568; Edwards on Bail., 2d ed., § 55.

17 See Lawson on Bail., § 23.

18 Edwards on Bail, 2d ed., § 55; Story's Eq. Pldg. 239.

ceeding shifts, and it devolves upon the bailor to prove such negligence. A hirer of a horse, for instance, who is sought to be held liable for the loss of the animal in a violent storm would prima facie exempt himself from liability by proof of the storm and its act of destruction. He could still, however, be held liable if the bailor could prove that he recklessly exposed the animal to the storm or that his lack of skill in handling the horse was really the proximate cause of the disaster. These facts, however, the bailor must prove. So, too, although proof that the goods were destroyed by fire, robbery, or by a bomb, would prima facie exculpate the ordinary bailee, the bailor may show that the negligence of the bailee contributed thereto and still hold him liable for the loss. So, too, as we have before stated, the excuse or defense of the bailee, must, in order to throw the burden of proceeding upon the shoulders of the bailor, show a cause of loss which is not itself suggestive of negligence. Where, for instance, a car of goods was injured in transit and the bill of lading exempted the carrier from all liability except that occasioned by his own negligence, the court held the mere proof that the goods had been injured while the car was "being switched" did not constitute a defense or shift the burden of proceeding, since switching, unless negligently done, does not ordinarily result in injury to the goods carried. In the case of the common carrier of goods, who is an exceptional bailee, an insurer of the goods carried and not liable for negligence merely, some authorities hold that the duty and burden is upon the carrier or bailee to show both that the goods were destroyed or injured by the excepted cause, and that his own negligence did not contribute thereto.19 But even in these cases an exception to the exception seems to be made where the goods are proved to have been lost or destroyed by the public enemy, or by the act of God,20 and the general rule that he who relies on negligence must prove negligence, seems to be 19 Greenleaf Evidence, vol. 2, § 219; Berry v. Cooper, 28 Ga. 543; Hinton v. Ry. Co., 72 Minn. 339.

20 Ry. Co. v. Reeves, 10 Wall. (U. S.) 176.

favored by the weight of authority in all cases whether the bailee be ordinary or exceptional.21

§ 23. Contributory Negligence. The contributory negligence of the bailor will, of course, preclude a recovery in all cases except where the negligence of the bailee is wanton, willful, and reckless, or so gross as to imply an utter disregard of consequences and a willingness to injure. A customer could, for instance, hardly recover damages for the theft of an overcoat which he chose to hang upon a peg near an open street door instead of giving the same into the custody of the defendant's servants whose business he knew it was to care for such article. And it may be stated as a general rule that "when the bailor or depositor not only knows the general character and habits of the bailee or depositary, but the place where, and the manner in which, the goods deposited are to be kept by him, he must be presumed to assent in advance that his goods shall be so treated; and if under such circumstances, they are damaged or lost, it will be deemed to be the result of his own folly and no recovery can be had."

§ 24. Measure of Damages. The measure of damages for a redelivery of the chattel after the appointed time is the loss which arises from the delay and is usually the value of the use or the rental value of the article, although, if it was desired for a particular purpose or use and the bailee knew of that fact at the time of entering into the contract of bailment, damages based upon the loss of that particular use and of the profits thereof, could, if reasonably provable, be recovered in an action of assumpsit. In an action brought to recover damages for the loss or destruction of the article, the measure will be the market value of the article at the time and place when and where it should have been delivered with interest thereon, and if there is no market at the place, then the value at the nearest market, plus the cost of transportation; or, if the article is one which has no market value, then the reasonable cost of its reproduction. If the

21 Clark v. Barnwell, 12 Howard 272; Lamb v. Camden Ry. Co., 46 N. Y. 271; Kansas Co. v. Reynolds, 8 Kan. 419.

article is damaged, the measure will be the difference between the value of the goods in the condition when bailed and in the condition when redelivered, and at the time and place of redelivery. Where the bailee is wrongfully deprived by the bailor of the possession of the goods during his term, or the contract for a bailment is broken and the goods are never delivered to the bailee, the measure will be the value of the use of the article or its rental value for the period for which the latter is deprived of the use and possession thereof; or, if it is to be used for a particular purpose from which profit could be made, and the fact was known to (or from the nature of the transaction, should have been known to) the bailee at the time of entering into the contract of bailment, then the measure is the value of those profits provided that they can be proved with a reasonable degree of certainty and the article could not have been elsewhere readily obtained. If the goods are regularly. sold upon the market, the measure of damages is the difference between the market value of such goods at the place of delivery at the time when actually delivered, and at the time when they should have been delivered.

§ 25. Compensation of Bailee. Except in the case of near relatives and others similarly situated who are wont to render services to one another gratuitously, the mere asking of another to render valuable services implies a promise of reasonable compensation therefor. This presumption applies to all bailments where work and labor is to be performed on the article bailed or the same is to be transported. In addition to this the bailee of all classes is entitled to recover his actual and necessary and useful disbursements which have been incurred while protecting the property from all but the ordinary dangers of the trust. In the absence of a contrary agreement, the bailee must bear all the ordinary expenses of his trust such as the feeding or the shoeing of a horse; but, the extraordinary expenses, such as the charges of a veterinary surgeon, or legal expenses incurred while necessarily defending the property from seizure, confiscation, or other similar loss, must be

borne by the bailor. Where, however, the extraordinary expenses are made necessary by the carelessness or other breach of duty of the bailee, reimbursement, of course, cannot be had, nor can the bailee hold the bailor liable for expenses which have been incurred while retaining the property in his possession for the purpose of enforcing his lien and after the original bailment has been terminated.

§ 26. Expenses of Care and Custody-The Right and Duty to Incur. In the absence of a special agreement to the contrary, the ordinary expenses of the care and custody, such as the feeding and stabling of a horse, are, as we have before seen, borne by the bailee, while those that are unusual or extraordinary, such as the furnishing of medicine to, or the obtaining of the services of a veterinary surgeon for, a horse or other animal, are chargeable to the bailor. Where such are needed and there is no opportunity to communicate with the bailor, or where the delay would be so great as to result in injury to the animal or bailed article, the bailee becomes an agent by necessity, of the bailor, and may, when necessary, pledge his credit to a reasonable amount. The failure to obtain such aid, indeed, would often be a failure of duty and of the due care which the relationship requires of the bailee. The criterion of reasonableness is generally a personal one, and is the answer to the question, "Would the bailee, if an ordinarily prudent and careful man, have incurred the expense if the property had been his own and he himself had been required to pay the bill?" Generally speaking, it will be deemed unreasonable to incur an expense greater than the value of the article or animal sought to be saved. The owner or bailor also should, if possible, be first consulted. Whether a bailee for hire shall pay the expenses of repairs necessary to keep the thing hired in repair and fit for use depends entirely upon the custom of the trade or business or special contract, though, of course, in all bailments for hire, there is, in the first place and in the absence of knowledge or notice to the contrary, an implied agreement that the