The discussion of contractual liability in case of a gratuitous bailment, and the consequent necessity of a consideration in such cases, is complicated by the fact that liability in bailment is not necessarily contractual. The English rule was that breach of common-law duty in bailment might give rise to an action in tort;1 while breach of an obligation extending beyond the common-law duty in bailment and arising out of a special agreement alone can not give rise to an action in tort, but the action must be in contract.2 The bailor might waive the tort and sue in assumpsit, since the relation originated in agreement,8 but he could not waive assumpsit and sue in tort if his action was based on a special contract and not on a breach of common-law duty.4 Accordingly, while liability is imposed upon the bailee without a special contract, this liability is not contractual and does not need a consideration, since it is not necessary to assume a contract.

61 Huntington v. Harvey, 4 Conn. 124.

62 Section 100, Negotiable Instrum-ments Law.

63 Mechanics' and Farmers' Savings Bank v. Katterjohn," 137 Ky. 427, 22 Am. & Eng. Ann. Cas. 439, 125 S. W. 1071.

1Turner v. Stallibrass [1898], 1 Q. B. 50.

2Corbett v. Packington, 6 Barn. & Cr. 268. See, A Difficulty in the Doctrine of Consideration, by Erwin Grueber, 2 Law Quarterly Review, 33.

3 Nelson v. Aldridge, 2 Stark. 435.

4 Corbett v. Packington, 6 Barn. & Cr. 268.

Certain duties and liabilities are imposed by law in bailments. If the bailment is for the sole benefit of the bailor, and the bailee performs, he must exercise the requisite amount of care and skill.5 What that degree of care and skill may be, is a matter that does not concern us here. He is liable for violation of his instructions, even if he uses due care after he has violated them,6 and still more, if he has failed to use due care.7 If the bailment is for the sole benefit of the bailee, he is liable if he makes use of the thing bailed in a manner different from that agreed upon, irrespective of his want of due care.8 While the liability thus arising is not contractual, it is sometimes explained as being contractual, and the possession of the chattel is said to be the consideration. If the bailment is for the sole benefit of the bailee, the surrender of possession of the thing bailed is evidently a consideration for an express promise by the bailee. B was in possession of two bills of exchange, to the possession of which A was entitled. B promised to apply the proceeds in a certain way if he could procure the bills to be discounted in consideration of A's permitting B to keep possession of such bills. This was held to be sufficient consideration for B's promise.9 Surrender of the possession of a chattel by A, an officer who has taken such chattel under a writ of attachment to B, is consideration for B's promise to redeliver it to A.10 These are all cases in which the bailee has received the chattel or the fund apparently for his own benefit under a promise to make a certain disposition thereof, and he is instead seeking to retain the chattel, or to restore it to its original form.

5 Arkansas. Baker v. Bailey, 103 Ark. 12, 145 S. W. 532.

Illinois. Skelly v. Kahn, 17 111. 170.

Missouri. Eddy v. Livingston, 35 Mo. 487, 88 Am. Dec. 122.

North Carolina. Bland v. Womack, 6 N. Car. (2 Murph.) 373.

Tennessee. Kirkland v. Montgomery, 31 Tenn. (1 Swan) 452; Jenkins v. Motlow, 33 Tenn. (1 Sneed) 248, 60 Am. Dec. 154.

Vermont. Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587.

Wisconsin. Jones v. Parish, 1 Pinn. (Wis.) 494.

6 Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33.

7 Tracy v. Wood, 3 Mason (U. S.) 132, Fed. Case No. 14,130; Colyar v. Taylor, 41 Tenn. (1 Coldw.) 372.

8 United States. Ross v. Southern Cotton Oil Co., 41 Fed. 152.

Iowa. Cullen v. Lord, 39 la. 302.

Kentucky. Kennedy v. Ashcraft, 67 Ky. (4 Bush.) 530.

New York. Buchanan v. Smith, 10 Hun 474.

Pennsylvania. Persch v. Quiggle, 57 Pa. St. (7 P. F. Smith) 247.

Wisconsin. Lane v. Cameron, 38 Wis. 603.

9 Hart v. Miles, 4 C. B. (N.S.) 371. See also Rutgers v. Lucet, 2 Johns.

Cases 92.

10 Clark v. Gaylord, 24 Conn. 484.

A, who owned some boilers and was in possession thereof, gave B permission to weigh them, which involved taking them apart, in consideration of which B agreed to return them in as good condition as when they were received. Such permission and transfer of possession was held to be sufficient consideration for A's promise.11 Even a gratuitous bailee acting for the sole benefit of the bailor must account for the property which comes into his hands, even if he has not expressly agreed to do so.12 In some cases the courts attempt to find a consideration on each side, so as to avoid the difficulties arising in the gratuitous bailment. A person or society which conducts an exhibition is said to be a bailee for hire, so as to be liable for breach of a covenant to keep an efficient police force on the grounds night and day,13 or for breach of a covenant to return the thing bailed.14 The same result would have been reached if it had been held to be a bailment for the sole benefit of the bailee. A different question might arise if the bailee had not retained the thing bailed. In such case, would the surrender of possession support an express promise to make a certain disposition thereof? In a gratuitous bailment for the benefit of the bailor, it was held that no action lay on an express promise to carry a sum of money and to deliver it, without also showing gross negligence on the part of the bailee.15 The bailee might take possession under the bailment and then tender the chattel to the bailor, refusing to perform the bailment. If such bailment were gratuitous, would not such tender relieve the bailee of liability under the express contract? A promise to perform work without any counter-promise for compensation is unenforceable while still executory,18 though if the promisor has done the work without complying with the terms of the contract, he is liable to the promisee for the damage caused by such non-compliance;17 and while this question is usually raised where A has promised to use B's materials to construct a building on B's land, the principle would apply where A has promised to perform certain work upon a chattel belonging to B. The bailor, in a bailment for the benefit of the bailee or a third person, may revoke his promise as long as it has not been so acted upon that the bailee would be prejudiced by such revocation. Thus if A has bailed money to B to deliver to C, A may revoke before such delivery.11 It seems doubtful, therefore, if there is a true contract in a gratuitous bailment. On analogy the bailee should be able to relieve himself of all liability as to the executory provisions by restoring the property to the bailor in such condition that the bailor is not injured by so much of the performance as has taken place. The authorities are too meager to enable us to say with confidence that this is the law.

11 Bainbridge v. Firmstone, 8 Ad. & El. 743.

12 Charlesworth v. Whitlow, 74 Ark. 277, 85 S. W. 423.

13 Vigo Agricultural Society v. Brum-fiel, 102 Ind. 146, 52 Am. Rep. 657, 1 N. E. 382.

14 Prince v. Alabama State Fair, 106 Ala. 340, 28 L. R. A. 716, 17 So. 449.

15Beardslee v. Richardson, 11 Wend. (N. Y.) 25, 25 Am. Dec. 596.

16Y. B. 11 Hen. IV 33, pl. 60; Elsee v. Gatward, 5 T. R. 143.

17 Elsee v. Gatward, 5 T. R. 143; McGee v. Bast, 29 Ky. (6 J. J. Mar.) 453.