Green v. Hollingsworth

• Decision Date: 20 April 1837
• Citation: 35 Ky. 173
• Parties: Green v. Hollingsworth.
• Court: Kentucky Court of Appeals

35 Ky. 173

Green v. Hollingsworth.

Court of Appeals of Kentucky.

April 20, 1837

FROM THE CIRCUIT COURT FOR GREENUP COUNTY.

Messrs Morehead and Brown for appellant.

Mr Hord for appellee.

OPINION

ROBERTSON CHIEF JUSTICE

Hollingsworth having obtained a verdict and judgment against Green, in an action of detinue, for a gold watch--several errors are assigned by Green, as arising from instructions, and refusals to instruct the jury, on the trial.

The liability of a bailee for the loss of the thing bailed depends upon the degree of care that he was bound to take of it; and that depends upon the manner and intent of the bailment. Whether any liability results from a given state of facts, or not, must be decided by the Court; the facts must be found by a jury.

Tho' a sale upon an illegal consideration, is void, the delivery of the property sold does not constitute a bailment. The law will help neither party in such case.

A simple dposit, with an implied permission to use the thing thus bailed; th bailee is not liable for a loss, unless guilty of gross negligence, or of a violation of duty in failing to return it.

A mere loan; more than ordinary care is required of the borrower.

One who borrows any article, is bound to return it at the time stipulated, or, if no time is fixed, in a reasonable time and whether it had become his duty to return it, or not, when a loss occurred, is a question of fact to be found by a jury. The court can not say, as a matter of law, that a party who had received his friend's watch, with an implied permission to wear and use it, was bound to return it within three weeks; nor that he incurred any responsibility by carrying it in his pocket upon a hunting excursion; tho' if it were lost, thro' neglect, he would be liable.

If there was a loan, without any express agreement, and the borrower failed to return it, upon demand, or claimed the property as his own, he will be liable for any loss of it occurring without the agency of the owner.

It appears from the bill of exceptions, that, the parties being intimate acquaintances and cordial friends, and both being in a jocund mood on a public occasion, whilst Hollingsworth was a candidate for the Legislature, Green said to him, in the hearing and presence of several persons--" give me your watch, and I will vote for you, and do all I can to assist you in your election; " whereupon, Hollingsworth handed the watch to him, without the chain; and Green having fastened a twine string and a key to it put it in his pocket and they shortly afterwards separated, Green still retaining the watch; about three weeks after which, Green, being on a hunting excursion, with the watch in his pocket, said, on his return home, that he had lost it in the woods; and, having afterwards engaged others to assist in searching...