Dinsmore v. Abbott

• Decision Date: 31 December 1896
• Citation: 89 Me. 373,36 A. 621
• Parties: DINSMORE v. ABBOTT et al.
• Court: Maine Supreme Court

36 A. 621

89 Me. 373

DINSMORE

v. ABBOTT et al.

Supreme Judicial Court of Maine.

Dec., 1896.

(Official.)

Action by Thomas Dinsmore against J. Abbott and others. Verdict for plaintiff. Motion for a new trial. Motion sustained.

J. H. Greeley, E. W. Whitehouse, and W. H. Fisher, for plaintiff.

W. H. Fogler, for defendants.

WISWELL, J. The plaintiff left in the defendants' storehouse, with their consent, a quantity of beans, in bags. There was no agreement for compensation, and, so far as the case shows, neither of the parties expected that any compensation for the storage would be required. The defendants were not warehousemen. The storehouse was used by them for their own purposes, in connection with their business as retail traders. The transaction was therefore a gratuitous bailment.

The plaintiff alleges that the defendants refused to deliver to him the property stored, upon demand. The burden was upon the plaintiff, in the first instance, to prove such a refusal. If this had been done, he would have made out a prima facie case, and it would then have been incumbent upon the defendants to explain the cause of their refusal, such as by showing the loss of the property by theft or burglary, or its destruction by fire or otherwise. Then it would have been incumbent upon the plaintiff to show that the loss or destruction occurred by reason of the defendants' failure to exercise such a degree of care of the property as the law requires of a gratuitous bailee. The plaintiff did not prove such a refusal, nor whether he had received all of the property left in the storehouse or not. It appears that at one time he gave an order for all of these beans to a third party, who did take from the storehouse a portion of them, at least, but the case does not show whether he took them all or not.

Nor did the plaintiff introduce any evidence tending to prove a want of sufficient care upon the part of the bailees. The loss of the property was a sufficient excuse for the failure to return, unless the loss occurred through the fault or want of ordinary care of the defendants. Smith v. Bank, 99 Mass. 605.

The evidence for the defense was positive and uncontradicted that they did not have the property in their possession at the time of demand; that they had not used or disposed of it, with the exception of one bag, containing two bushels, which they were willing to pay for; and that, if the plaintiff had not received the property, it had been lost without their...