Mississippi Supreme Court (Division B) — October 18, 1924. (136 Miss. 632, 101 So. 690.) Bailment, § 25- stolen property redelivery to bailor. Where a person is in possession of property delivered for storage, and is notified that the property is stolen property, and a demand is made for its possession by the owner, which is refused, and the custodian is then notified not to deliver it to the person storing it, and the property is delivered to the person who first stored it, without request or notice to the owner to propound his claim or take appropriate proceedings, and the property is removed and cannot be found, and is a total loss to the owner, the bailee is liable to the owner for its value. [See annotation on this question beginning on page 149.] Headnote by ETHRIDGE, J. APPEAL by defendant from a judgment of the Circuit Court for Forrest County (Hall, J.) in favor of plaintiff in an action brought to recover the value of an automobile alleged to have been wrongfully delivered by defendant to a third person after notification that it was stolen property. Affirmed. The facts are stated in the opinion of the court. Messrs. Currie, & Smith, for appellant: Defendant could certainly not have delivered the car to plaintiff upon his mere demand, because it was under a contractual liability to deliver it to Laurence. Reed v. Reed, 13 Iowa, 5; Jensen v. Eagle Ore Co. 33 L.R.A. (N.S.) 695, note; Crawshay v. Thornton, 2 Myl. & Messrs. Deavours & Hilbun, for appellee: When defendant received notice that the car belonged to plaintiff and was stolen, and that the bailor, Laurence, was not the owner of the car, and was requested not to deliver the car to the bailor, and when defendant ignored this notice and declined to hold the property, and thereby caused it to be lost to plaintiff, he has a right of action against defendant for the value of the property so lost to him. 3 R. C. L. § 52, p. 130; 6 C. J. § 113, p. 1150; Cooley, Torts, 456; Nanson v. Jacob, 93 Mo. 331, 3 Am. St. Rep. 535, 6 S. W. 246; Dearbourn v. Union Nat. Bank, 58 Me. 273; Phillips v. Brigham, 26 Ga. 617, 71 Am. Dec. 227; Alabama & T. Rivers R. Co. v. Kidd, 35 Ala. 209; Bolling v. Kirby, 90 Ala. 215, 24 Am. St. Rep. 793, 7 So. 914. Ethridge, J., delivered the opinion of the court: The appellee sued the appellant for the value of a certain Buick car described in the declaration, the plaintiff alleging: That he had loaned his car to a certain person for a day or two to be used around Hattiesburg, Miss. That shortly thereafter he had information that said person intended to abscond with said car. That upon receiving such information he, the plaintiff, commenced a diligent search to locate his said car before said party carried out his purpose. That plaintiff did finally find the car stored in the garage of the defendant in Hattiesburg, Miss., in which garage said car had been stored by said person to whom the car had been loaned. Upon finding and identifying said car the plaintiff requested defendant to deliver to him. the possession of his said car, that defendant refused to so deliver said car to the plaintiff, and that plaintiff then notified defendant that said car so held in storage, and which was a Little Six Buick automobile, the same being No. 28,924, was the property of the plaintiff and not the property of the person who left it for storage at defendant's garage. That plaintiff served notice on the defendant and forbade it to deliver possession of said automobile to the said person who stored it, or to any one else, except to plaintiff. That in disregard of such instructions and the fact that defendant had notice that said automobile did not belong to the person who stored it and over the protest and objection of plaintiff, the defendant wrongfully delivered said automobile to said person who had stored it in defendant's garage, and said person, after secretly and clandestinely securing possession of said automobile, absconded and left the country with it, and although plaintiff has made diligent search and inquiry he has been wholly unable to locate his said automobile, wherefore he brings suit and demands judgment in the sum of $500. The defendant filed a plea of the general issue. The plaintiff's testimony supported the declaration, he testifying expressly that he notified the defendant that the automobile was stolen and that it was the plaintiff's property, and not the property of the person storing it in defendant's garage, and that he notified the defendant not to deliver his said automobile to the person so storing same. The defendant testified that the said named person came to the tiff and placed the car in the garage garage in company with the plainas his automobile for the purpose of having the same repaired; that defendant issued a ticket to said of the defendant by which the deperson under the practice and rule. fendant had duplicate checks, one of which was delivered to the person storing the automobile and the other attached to the car; that defendant's rule was that it would not deliver any automobile to any person who did not have such duplicate check but would deliver it to whoever presented the duplicate check. The contents of the check, or whatever it was, do not appear in 'the record other than as stated. Issue was submitted to the jury on proper instructions and the jury returned a verdict for the plaintiff. The facts are therefore established in accordance with the plaintiff's declaration. It is contended by the appellant, (136 Miss. 632, 101 So. 690.) who was defendant below, that defendant was entitled to a peremptory instruction under a rule stated in the brief of appellant as follows: "A bailee by executing a receipt to the bailor for the bailed property admits the right of possession in the bailor, and is thereafter estopped from denying what has been thus admitted. The bailee cannot thereafter avoid the force of his own agreement by showing title in a third party." This quotation is an excerpt from 33 L.R.A. (N.S.) 695, which cites. Reed v. Reed, 13 Iowa, 5. In such known to the bailee before he deliv- Affirmed. Suggestion of error overruled November 24, 1924. ANNOTATION. Rights and liability of bailee where there is an adverse hostile title. ciples in relation to bailment, and does not purport to be exhaustive of the various specific classes of bailments. 1. As between bailor and bailee. a. In general. "Bailment" is a term of very wide signification. In its broad sense it constitutes any delivery of personal property in trust for a lawful purpose. A contract inter partes is not essential to a bailment. It is the element of lawful possession, however created, with a duty to return the property at the request of the bailor, or at a designated time, or when the object of the bailment has been accomplished. The ordinary contract of bailment constitutes an admission by the bailee of the bailor's title to the subject-matter of the bailment, which as a general rule, operates to estop the former from denying the title of the latter for the apparent purpose of gaining some advantage to himself. As hereinafter pointed out, there are many exceptions to the rule of estoppel which so limit the rule as practically to devest it of any operative function, where without the connivance or fraud of the bailee, there is a demand upon him for the property, by a third person claiming under an adverse hostile title, paramount to that of the bailor. However, the general premise upon which the duties and liabilities of the bailee to the bailor are adjudicated rests upon the ground of the estoppel of the bailee to deny that the bailor had title at the time of the bailment. United States. McCullough v. Roots (1857) 19 How. 349, 15 L. ed. 681; The Idaho (1877) 93 U. S. 575, 23 L. ed. 978; H. K. Porter Co. v. Boyd (1909) 96 C. C. A. 197, 171 Fed. 305; Rosenfield v. Express Co. (1871) 1 Woods, 131, Fed. Cas. No. 12,060. Alabama. Knight v. Bell (1853) 22 Ala. 198; Calhoun v. Thompson (1876) 56 Ala. 166, 28 Am. Rep. 754; Powell v. Robinson (1884) 76 Ala. 423; Young v. East Alabama R. Co. (1885) 80 Ala. 100; Jackson v. Jackson (1893) 97 Ala. 372, 12 So. 437; Riddle v. Blair (1906) 148 Ala. 461, 42 So. 560. Arkansas. 20 Ark. 583. California. Estes v. Boothe (1859) Palmtag v. Doutrick (1881) 59 Cal. 154, 43 Am. Rep. 248; Dodge v. Meyer (1882) 61 Cal. 405; Wetherly v. Straus (1892) 93 Cal. 283, 28 Pac. 1045; Davis v. DonohoeKelly Bkg. Co. (1907) 152 Cal. 282, 92 Pac. 639; Bondy v. American Transfer Co. (1911) 15 Cal. App. 746, 115 Pac. 965. Colorado. Jensen v. Eagle Ore Co. (1910) 47 Colo. 306, 33 L.R.A. (N.S.) 681, 107 Pac. 259, 19 Ann. Cas. 519. (1866) 14 Mich. 392. Missouri. Pulliam v. Burlingame (1883) 81 Mo. 111, 51 Am. Rep. 229; Mohr v. Langan (1901) 162 Mo. 474, 85 Am. St. Rep. 503, 63 S. W. 409; Swallow v. Duncan (1885) 18 Mo. App. 622; Cole v. Wabash, St. L. & P. R. Co. (1886) 21 Mo. App. 443; Dougherty v. Chapman (1888) 29 Mo. App. 233; Sherwood v. Neal (1890) 41 Mo. App. 416; Oehmen v. Portmann (1910) 153 Mo. App. 240, 133 S. W. 104. New Jersey. Hampton v. Swisher (1818) 4 N. J. L. 66; Hendricks v. Mount (1820) 5 N. J. L. 738, 8 Am. Dec. 623; Wheeler & W. Mfg. Co. v. Brookfield (1904) 70 N. J. L. 703, 58 Atl. 352. New York. Aubery v. Fiske (1867) 36 N. Y. 47; Bliven v. Hudson River R. Co. (1867) 36 N. Y. 403; Barnard v. Kobbe (1874) 54 N. Y. 516; Western Transp. Co. v. Barber (1874) 56 N. Y. 544; Holbrook v. Wight (1840) 24 Wend. 169, 35 Am. Dec. 607; Marvin v. Ellwood (1844) 11 Paige, 365; Sedgwick v. Macy (1897) 24 App. Div. 1, 49 N. Y. Supp. 154; Cook v. Bartlett (1906) 115 App. Div. 829, 100 N. Y. Supp. 1032; Eytinge v. Atlantic Transport Co. (1914) 160 App. Div. 635, 145 N. Y. Supp. 1054; Gruel v. Yetter (1899) 27 Misc. 494, 58 N. Y. Supp. 373; Leoncini v. Post (1891) 37 N. Y. S. R. 255, 13 N. Y. Supp. 825; Van Winkle v. United States Mail S. S. Co. (1862) 37 Barb. 122; Welles v. Thornton (1865) 45 Barb. 390; Gerber v. Monie (1869) 56 Barb. 652; Vosburgh v. Huntington (1862) 15 Abb. Pr. 254; Bates v. Stanton (1852) 1 Duer, 79; Hayes v. Kedzie (1877) 11 Hun, 577; Barnard v. Kobbe (1869) 3 Daly, 35. Freeman v. Perry (1860) 25 Tex. 611; Texas Standard CottonOil Co. v. National Cotton-Oil Co. (1897) Tex. Civ. App. 40 S. W. 159. Vermont. Burton v. Wilkinson (1843) 18 Vt. 186, 46 Am. Dec. 145. Virginia. Tancil v. Seaton (1877) 28 Gratt. 601, 26 Am. Rep. 380. West Virginia. Kelly v. Patchell (1872) 5 W. Va. 585. Wisconsin. Nudd v. Montayne (1875) 38 Wis. 511, 20 Am. Rep. 25. England. Thorne V. Tilbury (1858) 3 Hurlst. & N. 534, 157 Eng. Reprint, 581; Rogers V. Lambert [1891] 1 Q. B. 318-C. A.; Ex parte Davies (1881) L. R. 19 Ch. Div. 86C. A.; Biddle v. Bond (1865) 6 Best & S. 225, 122 Eng. Reprint, 1179, 3 Eng. Rul. Cas. 573; Cheesman v. Exall (1851) 6 Exch. 341, 155 Eng. Reprint, 574; Hardman v. Willcock (1832) 9 Bing. 382, note, 131 Eng. Reprint, 659, note; Sheridan v. New Quay Co. (1858) 4 C. B. N. S. 618, 140 Eng. Reprint, 1234; Wilson v. Anderton (1830) 1 Barn. & Ad. 450, 109 Eng. Reprint, 855; Ross v. Edwards (1895) 73 L. T. N. S. 100 - P. C. - Some of the earlier authorities, which are no longer followed, state the rule without qualifications. Thus in Bacon's Abridgment, 358, title Bailments (a), is it said that the bailee of goods must not deliver them to the true owner, since the bailee cannot pretend to remove or alter the |