after discovery of the facts.59 Though the cases with one exception involve the woman's lack of chastity, it is said that the law "is in this respect impartial between the sexes.” 60 The decisions thus far have not much admitted as a defence misconduct other than a lack of chastity, when occurring prior to the engagement. Neither acts of gross immodesty,61 nor the fact that the plaintiff "has in some respects violated the criminal law" have been held a defence.62 So the possession of a strain of negro blood,63 or of a disreputable brother,64 or mother,65 or of vulgar manners and a habit of swearing 66 is no excuse. There must, however, be some limit to the right of the possessor of a dirty past to inflict it upon an ignorant partner. A former professional burglar

69 Young v. Murphy, 3 Bing. N. C. 54; Beach v. Merrick, 1 C. & F. 463; Irving v. Greenwood, 1 C. & P. 350; Espy v. Jones, 37 Ala. 379; Smith v. Hall, 69 Conn. 651, 38 Atl. 386; La Porte v. Wallace, 89 Ill. App. 517; Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422; Williams v. Fahn, 119 Ia. 746, 94 N. W. 252; Edmonds v. Hughes, 115 Ky. 561, 74 S. W. 283; Snowman v. Wardwell, 32 Me. 275; Garmong v. Henderson, 114 Me. 75, 85, 95 Atl. 409, 115 Me. 422, 99 Atl. 177; Goddard v. Westcott, 82 Mich. 180, 46 N. W. 242; Markham v. Herrick, 82 Mo. App. 327; Stratton v. Dole, 45 Neb. 472, 63 N. W. 875; Budd v. Crea, 6 N. J. L. 370; McKane v. Howard, 202 N. Y. 181, 95 N. E. 642; Goodal v. Thurman, 1 Head, 209; Foster v. Hanchett, 68 Vt. 319, 35 Atl. 316, 54 Am. St. Rep. 886.

o McKane v. Howard, 202 N. Y. 181, 95 N. E. 642, 643. The court adds: "In Baddeley v. Mortlock, 1 Holt, 151, an action for breach of promise of marriage, the woman was the defendant and it was held, 'If a woman improvidently promise to marry a man, who turns out upon inquiry to be of bad character, she is not bound to perform her promise."" It may be ob

served that this authority hardly supports the position that a single slip on the part of the man prior to the engagement would justify a breach of the engagement, as it undoubtedly would justify a breach if the situation of the parties were reversed.

61 In Colburn v. Marble, 196 Mass. 376, at p. 381, 82 N. E. 28, 124 Am. St. Rep. 561, the court says: "Conduct of this kind prior to the engagement never has been held to justify a breach of promise." It has been sometimes held that evidence of this sort, though not an absolute bar to recovery, is admissible in mitigation of damages, but the criticism of such decisions in Colburn v. Marble, supra, seems sound.

62 Colburn v. Marble, 196 Mass. 376, 381, 82 N. E. 28, 124 Am. St. Rep. 561; Berry v. Bakeman, 44 Me. 164.

63 Van Houten v. Morse, 162 Mass. 414, 38 N. E. 705, 26 L. R. A. 430, 44 Am. St. Rep. 373.

64 Sherman v. Rawson, 102 Mass. 395.

65 Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385.

66 Berry v. Bakeman, 44 Me. 164; Grant v. Cornock, 16 Ont. App. 532.

or one guilty of other serious crimes surely cannot maintain an action against one who in ignorance of his past has promised to marry him, and who refuses to do so on discovering the facts.67 If a man had shown himself prior to the engagement a man of brutal and violent temper, who had struck and abused women of his family, might not the woman who had accepted him ignorantly be excused from keeping her promise though she could not prove that he had struck anybody since the engagement,68 and had made no representations to her that he had the disposition of a lamb?69 Though the parties to such a contract cannot be held by mere implication to warrant much, they must each be held to warrant the minimum that the other could reasonably expect. In the cases it is generally assumed that the defendant must make out a case of fraud and that mere silence will not constitute fraud, though concealment or a statement so partial as to be deceptive will; 70 but there seems no reason why the parties should not be held as warrantors. The analogy of the law of sales, bailments and of master and servant supports this. Nor should the warranty be confined to chastity. It may well be said generally that whatever misconduct in the party who brings the action tends necessarily to destroy the confidence essential to the marriage relation, may properly absolve the other party from his obligation and be a defence, if it was unknown to him when the contract was made, or occurred subsequently, and if when made known to him he refuses to fulfil the promise."1 Failure to break an engagement

67 In Gross v. Hochstim, 72 N. Y. Misc. 343, 130 N. Y. S. 315 (an action by the man against the woman), the court held an allegation that the plaintiff had obtained money upon the false statement that it was for his employers, imputed "dishonesty to the plaintiff of so grave a character that it would in my judgment justify the defendant in her refusal to marry the plaintiff." It does not appear in the report whether the dishonesty occurred before or after the engagement. Apparently the court thought this point immaterial.

68 See Leeds v. Cook, 4 Esp. 256. 69 As to the right to annul actual marriage because of concealed facts, see Lyon v. Lyon, 230 Ill. 366, 82 N. E. 850, 13 L. R. A. (N. S.) 996; Allen v. Allen, 85 N. J. Eq. 55, 95 Atl. 363; Sobol v. Sobol, 88 N. Y. Misc. 277, 150 N. Y. S. 248.

70 See cases in this section passim and especially Van Houten v. Morse, 162 Mass. 142, 38 N. E. 705, 26 L. R. A. 430, 44 Am. St. Rep. 373.

71 Berry v. Bakeman, 44 Me. 164,

166.

promptly on discovery of facts justifying that course, is an election to continue the engagement.72 The effect of physical incapacity or ill health on a contract to marry is elsewhere considered.73

72 See cases in this section passim.

73 See infra, § 1943.

A bailment without reward for the care of the bailor's goods.

1038

When the warehouseman is justified in delivering, and his liability for mis

Warehouseman is liable for the non-existence or misdescription of goods. .

1055

Limitations of innkeepers' liability in regard to guests' property.
Innkeepers' obligations in regard to guests' comfort and safety..

1069

1070

1032. Definition of bailment.

rightful possession of Rarely the situation

A bailment may be defined as the goods by one who is not the owner. may arise (as by finding) without the volition of the owner. In such a case the law of contracts does not govern the rights of the parties; but in most bailments the goods have either been delivered by the bailor to the bailee, or have been retained by the bailee (as where a seller continues in possession) under some agreement expressed or implied in fact. Even in such cases the mutual rights of the parties are often, if not usually, so inadequately fixed by their agreement, that rules of law not based on the agreement though not inconsistent with it must be called upon to supply the deficiency.1 In the main, however, the mutual rights of the bailee and bailor may be said to be governed by agreement. But the rights of either bailor or bailee in respect to the bailed property against third persons depend upon the law of property, and are not within the scope of this treatise.

Though possession of real property may be delivered by the owner to another, the term bailment is not applied to such a transaction. The law of real property has preserved its separate rules.

§ 1033. Kinds of bailment.

Lord Holt, borrowing his terminology somewhat from the Roman Law, divided bailments into six classes,2

1. Depositum, a gratuitous bailment of goods to be kept for the bailor.

2. Commodatum, a bailment of goods to be used by the bailee without charge.

3. Locatio rei, a bailment for hire paid to the bailor of goods to be used by the bailee.

4. Vadium, a bailment to secure a debt; a pledge.

5. Locatio operis faciendi, a bailment for reward paid to the bailee where goods are to be kept, or carried, or have something done to them by him.

1 For a discussion of how far such rules may be considered, part of the contract, see supra, §§ 22a, 615.

2 Coggs v. Bernard, 2 Lord Raym. 909.