§ 898. 2. We now come to the consideration of the case of Locatio custodial, or deposits for hire; and bailees of this class are responsible, like other bailees who receive a reciprocal benefit from the bailment, for ordinary care and diligence, and are responsible only for ordinary negligence.1 Of this class are agistors of cattle, warehousemen, forwarding merchants, and wharfingers.2 As the general rules applicable to bailments of locatio operis faciendi, first considered, are also applicable to these contracts, it will not be necessary to restate them here, except in some particulars.

1 Duncan v. Blundell, 3 Stark. 6; Hayselden v. Staff, 5 Ad. & El. 161; Duffit v. James, cited 7 East, 480; Basten v. Butter, 7 East, 479; Bracey v. Carter, 12 Ad. & El. 373; Moneypenny v. Hartland, 1 C. & P. 352; 2 C. & P. 378; Broom v. Davis, 7 East, 480, n.; Boorman v. Brown, 3 Q. B. 511.

2 Davis v. Maxwell, 12 Met. 286.

3 Sinclair v. Bowles, 9 B. & C. 92; Faxon v. Mansfield, 2 Mass. 147; Roberts v. Havelock, 3 B. & Ad. 404.

4 Robson v. Godfrey, 1 Stark. 275; Raymond v. Bearnard, 12 Johns. 274; Koon v. Oreenman, 7 Wend. 121; Dubois v. Del. & Hudson Canal Co., 4 Wend. 285; Linningdale v. Livingston, 10 Johns. 36; Burn v. Miller, 4 Taunt. 745; Hollinsead v. Mat-tier, 13 Wend. 276. See ante, Entire and Divisible Contracts, § 27.

5 Wilmot v. Smith, 3 C. & P. 453; Lovelock ». King, 1 Mood. & Rob.

§ 899. In respect to all bailees of this class, the rule is, that they are bound only to take reasonable and ordinary care of the bailment. They are not, therefore, liable for thefts, or destruction by vermin, or injury of any kind, unless it grow out of their negligence.3 Thus, where goods were stored for hire, and were injured by oil through the carelessness of the warehouseman, and were afterwards nearly ruined by a flood, against which he had taken all precautions, it was held that for the first injury he was liable, and not for the second.4 So, also, there is an implied engagement on the part of a forwarding merchant, that he will be vigilant and careful in receiving and forwarding goods intrusted to his care; and upon his refusal to receive goods consigned to him, he would be liable for any loss accruing therefrom.1 But if a warehouseman receive goods, and it prove that the bailor has no title, and they are taken from the custody of the warehouseman by the authority of the law, as the property of some third person, the warehouseman may, by showing such fact, avoid all responsibility in an action brought against him by the bailor for loss of the goods.2 Warehousemen are said not to be responsible beyond the actual value of the goods lost; and certainly not for such other damages as may be said to "reasonably and naturally arise or flow " from such loss, as is sometimes held to be the rule as to carriers.3

60; Bank of Columbia v. Patterson, 7 Crancb, 299; Robson v. Godfrey, 1 Stark. 275; 8. c. Holt, N. P. 236; Pepper v. Burland, Peake, 103; Wbeeden v. Fiske, 50 N. H. 125 (1870). See ante, Express and Implied Contracts.

1 Finucane v. Small, 1 Esp. 315; Cailiff v. Danvers, Peake, 114. See Cairns v. Robins, 8 M. & W. 258.

2 Platt v. Hibbard, 7 Cow. 497; 2 Story, Eq. Jur. § 814-816; Ross v. Johnson, 5 Burr. 2827; Garside v. Trent & Mersey Navigation Co., 4 T. R. 581; Forward v. Pittard, 1 T. R. 27; Story on Bailm. § 443-456; Gosling v. Birnie, 7 Bing. 339; Having v. Todd, 1 Stark. 72; Sidaways v. Todd, 2 Stark. 400; In the matter of Webb, 8 Taunt. 443; Cobban v. Downe, 5 Esp. 41; Foote v. Storrs, 2 Barb. 326; Clarke v. Spence, 10 Watts, 335; Blin v. Mayo, 10 Vt. 56.

3 Story on Bailm. § 444, and cases cited; Cailiff v. Danvers, Peake, 114; Knapp v. Curtis, 9 Wend. 60; Hatchett v. Gibson, 13 Ala. 587; Titsworth v. Winnegar, 51 Barb. 148; Brown v. Hitchcock, 28 Vt. 452; Cowles v. Pointer, 26 Miss. 253; Dimmick v. Milwaukee & St. Paul Railway, 18 Wis. 471; Neal v. Wilmington & Weldon Railroad, 8 Jones (N. C.)f 482; White v. Humphery, 11 Q. B. 43.

4 Powers v. Mitchell, 3 Hill, 545. See also Chenowith v. Dickinson, 8 B. Monr. 156.

§ 900. The implied contract of a bailee of this class may also be enlarged by express stipulations. Thus, where a warehouseman agrees to deposit cotton in a fire-proof building, and a loss of it occurs by reason of its not being so deposited, he will be liable, unless, indeed, the depositor, after the contract, consent that the goods be otherwise stored.4

§ 901. The liability of a warehouseman commences from the moment that the goods arrive at the warehouse, and the crane is applied to raise them into it; and if, while they are raising, the tackle break, and they be precipitated into the street, to their injury or destruction, the warehouseman is liable therefor, and not the common carrier, although he be upon the spot.5 A warehouseman is bound to deliver the goods intrusted to his care to the right owner, ana to retain them until they are demanded of him. If, therefore, either he or his servant, knowing or having the means of knowing the lawful owner,1 through inadvertence or negligence, deliver the goods bailed to a person not entitled to receive them, he will be responsible for all losses resulting thereby; 2 or if, through negligence, the goods are not delivered when called for by the consignor, and are afterwards destroyed by fire, he would be responsible.3 But if they are taken from his possession by authority of law, we have already seen that this is a good defence to any claim by the bailor.4

1 Hemphill v. Chenie, 6 Watts & Serg. 62. See Roberts v. Turner, 12 Johns. 232.

2 Burton v. Wilkinson, 18 Vt. 186.

3 Anderson v. North Eastern Railway Co., 4 Law T. (N. S.) 216; 6 H. & N. 914 (Am. ed.). For a full discussion of jus tertii, see Bigelow on Estoppel, 416-421, and cases cited, including the following: Cheesman v. Exall, 6 Exch. 341; Biddle v. Bond, 6 B. & S. 225 (1865); Shelbury v. Scotsford, Yelv. 23; Hardman v. Willcock, 9 Bing. 382, n.; Sheridan v. New Quay Co., 4 C. B. (N. S.) 618 (1858); Betteley v. Reed, 4 Q. B. 511; Thome v. Tilbury, 3 H. & N. 534 (1858); Sinclair v. Murphy, 14 Mich. 392 (1866); Lund v. Seamen's Bank, 37 Barb. 129 (1862); Wood-, ley v. Coventry, 2 H. & C. 164 (1863); McFerrin v. Perry, 1 Sneed, 314.

4 Hatchett v. Gibson, 13 Ala. 587.

5 Thomas v. Day, 4 Esp. 262; De Mott v. Laraway, 14 Wend. 225; Randleson v. Murray, 8 Ad. & El. 109. And see Merritt v. Old Colony & Newport Railway Co., 11 Allen, 83.

§ 902. The established rule in England is, that when an action is brought against depositaries for hire, to recover for a loss of or injury done to the bailment, the onus probandi of negligence is upon the plaintiff.6 In America, this doctrine has not met with entire approbation; and although it has been affirmed in some of the States, in others it does not obtain. The weight of authority, however, would seem to incline to the English rule.6

1 Parker v. Lombard, 100 Mass. 405 (1868), explaining the general rule laid down in other cases.

2 Lubbock v. Inglis, 1 Stark. 104; Story on Bailm. § 450; Leigh v. Smith, 1 C. & P. 638, 641; Willard v. Bridge, 4 Barb. 361.

3 Stevens v. Boston & Maine Railroad, 1 Gray, 277; Meyer v. Chicago & N. W. Railway Co., 24 Wis. 566. And see Jeffersonville Railroad v. Cotton, 29 2nd. 498. But he is not responsible for loss of goods by fire without his fault, after a reasonable time had elapsed from his offer to deliver them, although he had previously refused to do so. Carnes v. Nichols, 10 Gray, 369.

4 Burton v. Wilkinson, 18 Vt. 186. And see Stiles v. Davis, 1 Black, 106; Welles p. Thornton, 45 Barb. 390.

5 Finucane v. Small, 1 Esp. 316; Harris v. Packwood, 3 Taunt. 267; Marsh v. Home, 5 B. & C. 322; Story on Bailm. § 278, 339, 410, 454, 529.

6 See ante, § 886. In Cass v. Boston & Lowell Railroad, 14 Allen, 448, the Supreme Court of Massachusetts held that in an action of contract (whatever be the rule in an action of tort), the warehouseman must prove that the loss of the goods was without his fault, and the burden is on him to make out such defence. Bigelow, C. J., however, dissented in an able opinion, holding that the same rule obtained in both class of actions, and that in both the burden of proving negligence was on the plaintiff, as a necessary ground of his action. See also McCarthy v. Wolfe, 40 Mo. 520; 5 Am. Law Rev. 205 (1871). The English rule was denied in Platt v. Hibbard, 7 Cow. 501, but this case was subsequently overruled in Foote v. Storrs, 2 Barb. 329. In this case the court say: "In the case of Piatt v. Hibbard, 7 Cow. 497, tried before Walworth, circuit judge, at the Clinton Circuit, in January, 1827, the learned judge, in his charge to the jury, said that 'when property intrusted to a warehouseman, wharfinger, or storing and forwarding merchant, in the ordinary course of business, is lost, injured, or destroyed, the weight of proof is with the bailee to show a want of fault or negligence on his part; or, in other words, to show the injury did not happen in consequence of his neglect to use all that care and diligence on his part that a prudent or careful man would exercise in relation to his own property.' That was an action against the defendants, as warehousemen, for property destroyed by the burning of their warehouse; and as the jury, notwithstanding the charge, found a verdict for the defendants, and the plaintiffs moved for a new trial in the case, the soundness of the charge of the learned judge could not be brought in question. It was not approved, nor, indeed, adverted to by the court in giving judgment. By refusing to grant a new trial, the inference is that they were satisfied with the verdict. Although the reporter added a note, questioning the charge of the circuit judge, the case has, nevertheless, been cited elsewhere, as an authority for the rule which casts the burden upon the bailee of establishing an excuse, upon proof of loss of the goods. See Clark v. Spence, 10 Watts, 335. But the rule in this State is believed to be otherwise. In Schmidt v. Blood, 9 Wend. 268, it was expressly ruled that with respect to warehousemen the onus of showing negligence rests on the owner. The liability of a wharfinger is not distinguishable from that of a warehouseman. Both are bound only to take common and reasonable care of the commodity intrusted to them. Story, Bailm. 450 to 457, § 444 to 452. We are not aware of any adjudged case that makes a wharfinger liable for slight neglect, or that attempts to put him upon the footing of a common earner. The reason and policy of the law, with respect to the liability of the latter for all injuries except such as arise from the act of God and the public enemy, are inapplicable to the former. In all cases where a defendant is bound only to ordinary care, and is liable only for ordinary neglect, the plaintiff cannot recover upon the mere proof of loss of the articles intrusted to the bailee. He must give some evidence of a want of care in the bailee, or his servants." See also Schmidt v. Blood, 9 Wend. 268. In Bush v. Miller, 13 Barb. 482, it is said that the bailee must give some account of the property before he can call upon the plaintiff to prove negligence. In Pennsylvania the English rule does not obtain. See Logan v. Mathews, 6 Barr, 417. And see also Clark v. Spence, 10 Watts, 335; Tompkins v. Saltmarob, 14 S. & R. 275; Beckman v. Shouse, 5 Rawle, 179. In Tennessee the English doctrine is held. Runyan v. Caldwell, 7 Humph. 134. See also Story on Bailm. § 278, 339, 410, 454, 529; Beardslee v. Richardson, 11 Wend. 25; ante, § 885.