25 Tex. 655 | Tex. | 1860
This suit was instituted by the appellee, as administrator of the estate of one James P. Haynes, to recover from the appellant the value of two pieces of land scrip, which were deposited with the appellant by James P. Haynes m his lifetime. The testimony shows that the land scrip was placed in the hands of Wilson, the appellant, for safe keeping merely. The transfers on the land scrip showed that it was owned by James P. Haynes, and one William P. King, and one W. Y. Lacy. It appears that before the institution of this suit William P. King died, and that after his death, but also before the institution of this suit, the surviving wife of William P. King demanded the land scrip from Wilson, who delivered it to her. Mrs. King afterwards married one Johnson, and died. Johnson was a witness on the trial of this cause, and testified that he had possession of the land scrip, and that he held it as the property of the estate of his deceased wife, formerly Mrs. King. There was proof of a demand made by the appellee from the appellant, for the redelivery of the scrip before the institution of the suit. The judge charged the jury as follows: “If you are satisfied from the testimony that the plaintiff1 s intestate, Mr. Haynes, delivered the scrip described in the petition to defendant, that plaintiff's intestate owned a part of said scrip, and that defendant failed or refused to deliver the same to the said Haynes or to plaintiff as his administrator upon a demand for the same, you will find for plaintiff the value of his interest in said scrip. ■ If you do not find all the above facts; find for defendant.” The jury found for the plaintiff the sum of two hundred and eighty-five dollars. The defendant moved for a new trial, and the court required the plaintiff to remit the sum of' one. hundr
We are of opinion that there is no error in the judgment of which the appellant can complain. Upon the delivery of the land scrip by Haynes to Nelson, Nelson became the bailee of the scrip. His responsibility was that of a depositary, who assumes to keep the property delivered to him, without reward, and to redeliver the same to the bailor according to the contract. The general rule undoubtedly is, that the depositary is bound to redeliver or restore the chattels bailed to the bailor. But the law is not so clearly and accurately settled as could be desired, as to what are the duties and rights of bailees in cases where the chattels bailed are claimed by some third person who asserts a title superior to that of the bailor. The case more analogous to the present than any other which we have been able to find, is that of May and another v. Harvey, reported in the 7t-h volume of the new edition of East’s Reports, 109. The case was originally reported in 13 East., 199. In that case Taylor, who afterwards became a' bankrupt, was indebted to one Harvey. Taylor executed an assignment of a lease to Harvey, and the lease was deposited with Harvey’s son. The assignees of Taylor demanded the lease from Harvey. It was shown that the son was acting as the agent and under the direction of the father. The lease had been originally assigned to Taylor by one Bridge, and Taylor, who was examined asa witness at the trial, said that to save the expense of a counterpart of the lease, it. had been agreed between Bridge and himself, that the lease should remain for both of them in the hands of the defendant’s son: but it did not appear that this agreement was communicated to the son at the time the lease uns deposited with him. When the assignees of Taylor demanded the lease from Harvey he made no objection that it had been deposited by Taylor and Bridge jointly, but claimed the right to hold the lease as a security for his debt against Taylor, by virtue of Taylor’s assignment of it to him; which assignment appeared to have been antedated. There was verdict for the assignees. There was a motion to sot aside the verdict and enter a nonsuit, on the ground that the lease had been
We think it quite clear that upon the delivery of the scrip in this case by Haynes to Nelson, Nelson became bound to redeliver the scrip upon demand to his bailor, and that he could not excuse himself for a failure or refusal so to redeliver, without showing beyond dispute that lie had delivered the scrip to the true owner ; and this he has failed to do, because it is not shown that Mrs. King to whom the scrip was delivered by Nelson was the true owner. It is argued in behalf of the appellant that inasmuch as the transfers on the scrip showed that William P. King was a part owner of it, he might reasonably conclude that it was deposited with him for the benefit of all parties in interest, and that he should hold the scrip subject to the demand of any one or all of the parties interested. The law will not permit the bailee to indulge in such implications. If the scrip has been placed in his hands by all the part owners of it, without any special agreement as to whom it should be delivered by the bailee, the rule of law is well settled that the bailee could only acquit himself of responsibility by redelivering the scrip on the joint demand of all the persons making the deposit. Edwards on Bailments, 85.
It is contended, however, that although the appellant may he liable for a breach of his contract, his bailor is only entitled to
The verdict of the jury was excessive, but it was reduced by the remittitur to a sum less than the plaintiff below might properly have recovered, upon the evidence. We are of opinion, therefore, that the judgment of the court below be affirmed, and that the appellee recover of the appellant &c., the amount of the judgment rendered in the court below, less the amount remitted.
Judgment affirmed.
