Deposit, kinds of. 1813. A deposit may be voluntary or involuntary; and for safe keeping or for exchange. NOTE.-In Edwards on Bailments, p. 47, it is said that "when chattels are delivered by one man to another to keep for the use of the bailor it is called a deposit; the essential characteristic of the contract is, that the keeping be gratuitous.”—Code of La., Art. 2900; Story on Bailments, Secs. 4-41; 2 Kent's Com., p. 560. In Hilliard on Torts, 2 Vol., p. 523, Sec. 3, it is said, that depositum is a deposit "without compensation or reward."-1 Pars. on Con., p. 572; McKay vs. Draper, 27 N. Y. (13 Smith), p. 256. In Hyatt vs. Argente, 3 Cal., p. 151, it was held "that one depositing securities to secure the payment of a debt or advancement thereon may agree that they may be sold at the option of the creditor, and that drafts upon the bailee, directing the payment thereof 'from the proceeds of the securities in his hands,'" gave authority to sell the deposited securities to meet the drafts. And an order to pay, "when in funds from the proceeds," is conclusive that other sales were to be made, and that a sale under such authority is good, without previous demand of payment or notice of the time and place of sale. "When personal property is pledged, mortgaged, hypothecated, or placed in trust upon terms and conditions, Courts of law will be governed by the language of the contract." When the contract is absolute on its face, the party asserting a condition or limitation must show it. A bailee who disclaims his relation to the bailor cannot claim the right to require a demand for the money before interest is charged against him.-Dickinson vs. Owen, 11 Cal., p. 71. In the case of a stakeholder, see Hardy vs. Hunt, 11 Cal., p. 343. When bailor's possession is obtained by fraud bailee may set up title in a third party against an action by bailor for the subject of the bailment.-Hayden vs. Davis, 9 Cal., p. 573. Warehouseman's statement to one about to take possession of goods in his possession by process that he has no charges on the goods is a waiver of the warehouseman's lien for charges.-Blackman vs. Pierce, 23 Cal., p. 508. Removal of goods from place agreed upon for them to be kept charges bailee with damages done, etc. St. Laskey vs. Davidson, 6 Cal., p. 643. The conversion of property found, without first making proper inquiry for the owner, is larceny.-Sec. 485 Penal Code, Cal. This note is upon the subject of bailment in general. deposit, 1814. A voluntary deposit is made by one giving Voluntary to another, with his consent, the possession of personal how made. property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary. NOTE.-See note to Sec. 1815, post. The finder of personal property is not compelled by law to take the same into his custody, but if he voluntarily assumes the charge of it the law imposes on him the duties of a depositary, so far, at least, that he is answerable for gross negligence.-Ed. on Bailm., p. 55. "Finder."Story on Bailm., Secs. 86, 87; Corey vs. Little, 6 N. Hamp., p. 213. In the civil law a voluntary deposit is where no such necessity exists for depositing as in making an involuntary deposit, but rests in consent or agreement. 1815. An involuntary deposit is made: tary 1. By the accidental leaving or placing of personal Involunproperty in the possession of any person, without negli- deposit, gence on the part of its owner; or, 2. In cases of fire, shipwreck, inundation, insurrection, riot, or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. NOTE.-Edwards on Bailm., p. 47, Chap. 2, says: "An involuntary deposit is a delivery of goods usually made under an emergency, such as shipwreck, fire, or flood, which leaves to the owner of them no time for deliberation or choice." He also says, that at the civil law, "sequestration," or the delivery of goods or property under a judicial order, or a deposit with an indifferent person, made by agreement of contestants, to await event of suit, to be delivered to successful party. Responsibility is not changed so long as it remains a naked deposit without reward.-Code La., Art. 2942; Story on Bailm., Sec. 46; 2 Hilliard on Torts, p. 523, Sec. 4. "A depositary is liable only for gross negligence, which is a question of fact for the jury."-Dorman vs. Jenkins, 2 Add. & Ell., p. 256; Jourdan vs. Reed, 1 Clarke, Iowa, p. 135. In case of finding property, the standard of gross negligence is applied.— Dougherty vs. Poregate, 3 Clarke, Iowa, p. 88. Gross negligence is held equivalent to fraud.-Tudor vs. how made. Same. Deposit for safe keeping, what. Lewis, 3 Met., Ky., p. 378. Deposit of bank bills with a banking company, unless special, creates a debt, not a bailment.-Woaz vs. Tuskegee, etc., 34 Ala., p. 58. Receiving claims to collect, though without compensation, requires the one so receiving to use ordinary diligence.-Moore vs. Gholson, 34 Miss., p. 372. What care must be taken considered.-1 Pars. on Cont., p. 574; The William, 6 Rob. Adm., p. 316; 1 Pars. on Cont., p. 578. Right of possession sustains trover, but right of property must exist to sustain replevin; all which actions are under our "Practice Code" brought for "claim and delivery of personal property." At the civil law an involuntary deposit is called a necessary deposit, because the relation and contract is implied from pressing necessity.-La. Civ. Code, Sec. 2935. 1816. The person with whom a thing is deposited in the manner described in the last section is bound to take charge of it, if able to do so. NOTE. It is laid down in Ed. on Bailm., p. 47, that "the person receiving the goods to keep, impliedly stipulates that he will take some degree of care of them; but the degree of care is to be measured by the watchfulness with which he preserves his own property of a like kind." Foster vs. The Essex Bank, 17 Mass., p. 479: "He must observe good faith in keeping them as he keeps his own property.-See, also, 2 Hilliard on Torts, p. 524, 5, 6; Jenkins vs. Melow, 1 Sneed, p. 248. Liable for gross negligence only. See Lampley vs. Scott, 24 Miss., p. 528; Choteau vs. Steamboat Co., 20 Miss., p. 519; Kemp vs. Farlow, 5 Ind., p. 462; Dart vs. Lowe, 5 Ind., p. 131; 17 Ill., p. 170; Connor vs. Winton, 8 Ind., p. 315. It is a fact to be determined by the jury under all the circumstances of the case.-McNabb vs. Lockhart, 18 Geo., p. 495. 1817. A deposit for keeping is one in which the depositary is bound to return the identical thing deposited. NOTE.-A person receiving the goods to keep without recompense, and he in good faith keeps them as his own, is not answerable for their loss or injury. As he receives no benefit from the bailment, he is responsible only for bad faith or gross neglect.-See Bouvier L. Dict., Title "Bailment," p. 3. Ed. on Bailm., p. 35, gives Sir Wm. Jones' definition: "A delivery of goods in trust on a contract, express or implied, that the trust shall Deposit for exchange, 1818. A deposit for exchange is one in which the depositary is only bound to return a thing correspond- what. ing in kind to that which is deposited. NOTE. The deposit of the text is in the nature of a general deposit, and creates a debt rather than a bailment. Money deposited in a bank which mingles with other moneys there kept becomes a debt to be recovered with interest.-See Ed. on Bailm., p. 66. See, also, Sec. 1878, and note, post. ARTICLE II. OBLIGATIONS OF THE DEPOSITARY. SECTION 1822. Depositary must deliver on demand. 1823. No obligation to deliver without demand. 1824. Place of delivery. 1825. Notice to owner of adverse claim. 1826. Notice to owner of thing wrongfully detained. 1822. A depositary must deliver the thing to the must deliver on demand. Depositary person for whose benefit it was deposited, on demand, whether the deposit was made for a specified time or not, unless he has a lien upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice required by Section 1825. No obligation to deliver without demand. NOTE. The depositary must deliver the thing deposited to the person for whose benefit it was deposited, on demand, whether for specified time or not. Obviously, the depositary has no interest in the prolongation of the deposit, and therefore has no right to insist upon it. He may be entitled to compensation for the whole period originally agreed upon, but that is another matter. If he has a lien on the article or thing, or if there is another claiming to be owner, he may refuse, if forbidden, etc.-Bates vs. Stanton, 1 Duer, p. 79; Hardman vs. Wilcock, 9 Bing., p. 378; King vs. Richards, 6 Whart., p. 418. In other cases the depositary cannot dispute his depositor's title.-See Marvin vs. Ellwood, 11 Paige, pp. 365, 376; Gosling vs. Birney, 6 Bing., p. 339; Hall vs. Griffin, 10 id., p. 246; Kiernan vs. Sanders, 6 Ad. & El., p. 516. Or if the law so directs or claims possession otherwise.-Bliven vs. Hudson River R. R. Co., 35 Barb., p. 188; see Stamford Steamboat Co. vs. Gibbons, 9 Wend., p. 327; Edson vs. Weston, 7 Cow., p. 278. Depositary must give prompt notice to depositor of proceedings adverse to his interests.-Scranton vs. Farmers' and Mech. Bk., 24 N. Y., pp. 424, 427, by Sutherland, J.; see "Redelivery," Ed. on Bailm., p. 83. 1823. A depositary is not bound to deliver a thing deposited without demand, even where the deposit is made for a specified time. NOTE.-See Phelps vs. Bostwick, 22 Barb., p. 314; Downes vs. Phoenix Bank, 6 Hill, p. 297; Brown vs. Cook, 9 Johns., p. 361, on the question of demand and term deposits. Demand and refusal, effect of.—Ed. on Bailm., p. 87. Refusal after demand is a conversion, etc. After demand bailee answerable for loss.-Id., pp. 87, 88; Brown vs. Hotchkiss, 9 Johns. R., p. 361; May vs. Hawes, 13 East, p. 197; Sargeant vs. Gile, 8 N. Hamp. R., p. 325; Armory vs. Delamire, 1 Str., p. 504; Fisher vs. Cobb, 6 Vt. Rep., p. 622; Sutton vs. Buck, 2 Taunt. R., p. 302; Miller vs. Adsit, 16 Wend., p. 335; White vs. Webb, 15 Conn., p. 302. |