60 Miss. 330 | Miss. | 1882
delivered the opinion of the court.
Appellee Hall placed in the iron safe of appellant Caldwell the sum of thirty-five dollars. It was contained in an open box, and to it and from it Hall added and withdrew at his pleasure; so that at one time he had on deposit as much as seven hundred dollars.
The money was never mingled with Caldwell’s, nor was any receipt given for it, nor any entry of it made upon his books.
His book-keeper, who carried the key of the safe, sometimes used small portions of it in making change, always dropping into the box tickets showing the amounts so withdrawn, and always replacing them within a few days. His habit in this regard was known to and acquiesced in by both the depositor and the depositary. Some months after the date of the original deposit Caldwell’s safe was robbed, without any fault or negligence on his part. His own money was lost along with that of Hall and other depositors.
Caldwell was not a banker, but a merchant, and the deposits belonged to friends and customers to whom he had not made himself liable. The day before the robbery, his book-keeper used fifteen or twenty dollars of Hall’s money, which, not having been replaced, he paid to Hall after the robbery.
This suit is brought by Hall to recover the balance of the sum stolen. The right to recover is rested upon the statement testified-to by Hall, but denied by Caldwell, that at the time of the first deposit, it was understood and agreed between the parties that the money was to be used by Caldwell in his business, if he so desired, and that it was received on this basis. It is not claimed that Caldwell actually then became the borrower of the money, and that the relation of creditor and. debtor then arose, but that Caldwell became a bailee of the money, with an agreement to return it in specie, or to use
This irregular and anomalous character of bailment, well defined and recognized in the Roman or continental law, is alluded to rather than distinctly announced by the common-law writers. In our system of jurisprudence it is treated as a sale rather than a bailment, and this seems to be its proper aspect, since its practical eifect must always be to operate a transfer of title where chattels are deposited, and to create the relation of lender and borrower where money is involved. In the one case it is a sale, with the right in the purchaser to return the thing delivered or its equivalent in kind, though not in specie. In the other it is a deposit of money with the understanding that it is to be surrendered on demand, but with the right in the receiver to use and replace it if he desires. If A. delivers to B. a quantity of flour or wine or cotton with the agreement that the latter may use it at his pleasure, and return its equivalent in the*same species of goods, this is nothing more or less than a purchase, with the right in the buyer to pay in a particular manner; and if the goods are neither returned in specie, nor paid for in the manner contracted for, an action of assumpsit may be maintained for \their money value. The result is the same where the thing delivered is money. It follows, therefore, that in the common law the idea of bailment in this class of cases is lost in that of á purchase, where the thing deposited is a chattel, and in that of debtor and creditor where it is money. Schouler on Bail. 5, 7, 75, 73 ; Edw. on Bail. 136-186 ; Story on Bail, sect. 283.
In order for this suit to be successfuly maintained, such a state of facts must be shown as will warrant the idea that Caldwell, when the money was deposited, became at once the debtor of the depositor; and, testing the case by Hall’s own testimony, it is evident that such was not the contemplation nor agreement of the parties. The true aspect of the case, uuder the facts testified to by him is this: the money was
Reversed and remanded.
