sion and rule grew that no negligence whatever could be contracted against, and that the earlier cases had so held.27 Whether the innkeeper or public warehouseman is prohibited from contracting against the results of any degree of negligence no matter how slight, that is to say, whether he will be treated as the ordinary bailee for hire in such respects and will be allowed to do so is a matter of some doubt and has not as yet been clearly decided. One thing is sure, and that is, that for such a contract there must be a special consideration and a valid meeting of the minds; for like the common carrier, the innkeeper is bound to accommodate all who may apply, and like the carrier, he is allowed to charge only a reasonable rate. It will perhaps also be noticed in this connection, that the statutes which have exempted the innkeeper from liability for valuables not placed in his safe after due notice, and except when destroyed by his negligence, have usually, if not always, used the general word "negligence" and not the words "gross negligence". These statutes, no doubt, evidence the legislative policy upon the question, and will, perhaps, serve as a guide to the courts. There can, indeed, be little reason why the carrier should be any more precluded from contracting against slight negligence and lack of ordinary care than the innkeeper or the warehouseman. The innkeeper's liability as an insurer, at any rate, was imposed for the selfsame reason as was that of the common carrier. The common carrier is denied the privilege of contracting against his slight and ordinary negligence which is conceded to the ordinary bailee, because of the fact that his complete control over the goods makes it absolutely impossible for the shipper to watch or to trace them over the many miles of tracks and into the different cars, and fraud and deception on his part as to the amount of the negligence and the real cause of the loss is extremely easy. The right may well have been denied also because, although the shipper has the legal right to insist upon carriage without any limitation

27 Cox v. Central Vermont Ry. Co., 170 Mass. 129; Ogdensburg, etc. R. R. Co. v. Pratt, 22 Wall. 123.

of liability, that right can only be enforced by legal process and the threat of the use of the carrier of the power to inconvenience and delay would occasion the entering into many contracts into which the shipper would not otherwise have entered. This last consideration is as applicable to innkeepers as it is to common carriers. We should here also notice that in the case of the innkeeper and of the common carrier a special consideration is, or should be, necessary for every contract which seeks to limit liability, and a meeting of the minds also should always be necessary thereto. The consideration for the primary contract of transportation or that furnished by the entrusting of the goods to him and the receipt and agreement to transport at a reasonable rate, or the entering or receipt into the inn, are not enough, for these obligations are placed upon them by the law and are implied from the relationship themselves, and, unlike the ordinary bailee, they must accept the goods. or the person and incur the liability whether they desire

to or not.

§ 31. Actions, Forms Of. Both the bailor and the bailee can enforce their rights by an appropriate action. Each is entitled to a fulfillment of the terms of the contract of bailment and each is entitled to the possession which the contract gives to him. If the bailment is the subject of an express agreement, and unless that agreement imposes a greater duty or liability upon the bailee than the law in the absence of such an expression would imply, a breach thereof can be remedied or redressed either in an action of tort or of contract, for in such case the express contract imposes no greater obligation than the law itself would imply and impose. If, however, the expressed duty and obligation is greater than that which without such expression would have been implied from the relationship, an action on the contract will alone be sustainable and the law of contracts rather than the law of bailments will apply. In every case, also, where one commits a tort on the goods of another, by which he gains a pecuniary profit, as if he wrongfully takes the goods and sells them, or otherwise

applies them to his own use, the owner may waive the tort and charge him in assumpsit on the common counts as for goods sold, or money received. In every case where the bailee has negligently destroyed or lost the bailed article the bailor may maintain an action of trespass, and he may sue in case where the subject matter of the bailment has been misused by the bailee. If the bailee refuses to return the goods at the end of the bailment, an action of trover, replevin, or detinue, may be maintained, and the same actions may be maintained at the termination of the bailment against third persons into whose hands the goods have been wrongfully given, or who have wrongfully taken the same. It must, however, be remembered that in order to maintain the actions of trover, detinue, and replevin, and of trespass de bonis asportatis, the plaintiff must have a right to the immediate possession of the bailed article and that, therefore, although no prior demand of the goods or formal termination of the bailment is necessary where goods are wrongfully detained by the bailee when the period for redelivery has been definitely fixed in the contract of bailment or when the goods have been converted by the bailee to his own use, or used in a manner totally repugnant to the terms of the bailment, in all other cases a prior demand and formal termination of the bailment is necessary. So, too, it has been held that on account of the necessity of a right to the immediate possession in the plaintiff as a foundation for the actions, the bailor may not, while the bailment lasts, maintain trespass, replevin, detinue or trover against one who has wrongfully taken the goods from his bailee and that these actions can, during the pendency of the bailment, be maintained by the bailee only. The bailor, however, may, with the consent of his bailee, terminate the bailment and thus pave the way for the actions; or, if the possession of the third party or the wrongful use or conversion is a result of the fraud or collusion of his bailee, he may consider the bailment terminated and bring the action, as this fraud or collusion gives to him the immediate right of possession; and the same is true in the case

of a commodatum provided the period of the bailment is indefinite and can be terminated by the bailor at any time. In all other cases, where the term is uncertain, it is probably true that, although the bailor may terminate the relationship at his pleasure, the right must first be exercised and a notice of his election to consider the bailment terminated must first have been given to his bailee before trover or detinue can be brought by him against the third party.28 Since, also, before such time and at the time of the taking or of the wrongful act he had no right to the immediate possession, he is precluded from bringing the actions of trespass de bonis asportatis and replevin in the cepit altogether. In order to maintain these actions, indeed, it is necessary to allege and to prove, both a right to the immediate possession and a wrongful taking. He may however sue in case for the injury to his reversionary interest if any there be. Soper v. Sumner, 5 Vt. 274.

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CHAPTER II

LOST ARTICLES AS BAILMENTS

§ 32. The Finder of Lost Articles. The finder of a lost chattel which is not buried nor imbedded in the soil becomes the owner thereof as against all of the world but the true owner. Towards the latter, except where a reward is offered, and on account of which he takes possession of the article, he assumes the relationship of a gratuitous bailee. He is liable only for gross or willful negligence, or for a use of the property which is injurious to the same. A reasonable use is probably accorded to him; but if he make a profit thereby, he is liable to account to the true owner therefor when such owner is discovered. He is entitled to reimbursement for necessary expenses incurred in the preservation of the property and perhaps for his time and labor,1 although he is not entitled to a reward for finding it if there be no promise of such reward by the owner upon which he has acted, nor has he a lien on the chattels for such expenses. except, perhaps, in the case of goods saved from the seas.2 The reasons given for these rules are "that it may be that the owner did not desire to have his property disturbed, or, if lost, preferred to find it himself." "Much of the stock in this country," says one authority, "is permitted to run at large; and if every animal lost or appearing to be lost, can be taken up and the owner legally charged for all trouble and expenses thereby incurred, the business of finding the cattle would certainly become profitable, and persons might be largely involved in debt without their knowledge or consent." Even for necessary expenses incurred in the preservation of the chattel, as the services of a veteri

1 Chase v. Corcoran, 106 Mass. 286; Reeder v. Anderson, 4 Dana (Ky.) 193; Preston v. Neale, 12 Gray (Mass.) 222; See Watts v. Ward, 1 Ore. 86, 62 Amer. Dec. 299.

2 Edw. on Bail., 2d ed., §§ 20, 23.

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