Rollo's Museum

THE BAILMENT CASES.

As the boys were slowly coming up the lane, towards the house, they saw Mary and Lucy in the garden. They went round into the garden to see what they were doing.

They found them seated upon a bench in a pleasant part of the garden; it was the same bench were Rollo had once undertaken to establish a hive of bees. Mary was teaching Lucy how to draw pictures upon lilac leaves, and other leaves which they gathered, here and there, in the garden.

The boys came up and asked to see what the girls were doing. The girls did not say to them, as girls sometimes do in such cases, 'It is none of your concern,-you go off out of the garden, we don't want you here.' They very politely showed them their leaf sketches,-and the boys, at the same time, with equal politeness, offered them some of their raspberries. In the course of the conversation, as they sat and stood there, Rollo said to his sister,

"Henry lost my fish, Mary, and ought he not to pay me?"

"Your fish?" asked Mary.

"Yes," said Rollo, "I caught a fish in a dipper."

"And how came Henry to have it?"

"O, I let him have it, to catch another. He made me."

Henry had some secret feeling that he had not done quite right in the transaction, though he did not know exactly how he had done wrong. He did not make any reply to Rollo's charge, but stood back, looking somewhat confused.

"Ought he not to pay me?" repeated Rollo.

"It seems to be a case of bailment," said Mary.

"O yes," said Rollo, who now recollected his father's conversation on that subject some days before.

"And so, you know, the question," continued Mary, "whether he ought to pay or not, depends upon circumstances."

"Well," said Rollo, who began to recall to mind the principles which his father had laid down upon the subject, "it was for his benefit, not mine, and so he ought to pay."

All this conversation about bailment, and about its being for his benefit, not Rollo's, was entirely unintelligible to Henry, who had never studied the law of bailment at all. He looked first at Mary, and then at Rollo, and finally said,

"I don't understand what you mean."

So Mary explained to him what her father had said. She told him, first, that whenever one boy intrusted his property of any kind to the hands of another boy, it was a bailment; and that the question whether the one who took the thing ought to pay for it, if it was lost, depended upon the degree of care he took of it, considered in connection with the question, whether the bailment was for the benefit of the bailor, or the bailee.

"What is bailor and the bailee?" said Henry.

"Why, Rollo bailed you his fish," said Mary. "Rollo was bailor, and you bailee."

"No," said Henry, "he only gave me back my dipper, and the fish was in it."

Mary asked for an explanation of this, and the boys related all the circumstances. Mary said it was an intricate case.

"I don't understand it exactly," said Mary. "You returned him his property which you had borrowed, and at the same time put into his hands some property of your own. I don't know whether it ought to be considered as only giving him back his dipper, or bailing him the fish."

"I did not want the fish," said Henry.

"No," said Mary. "It is a knotty case. Let us go and ask father about it."

"O, I don't want to go," said Henry.

"Yes, I would," said Mary. "I'll be your lawyer, and manage your side of the question for you; and we will get a regular decision."

"Well," said Henry, reluctantly. And all the children followed Mary and Lucy towards the house.

They found Rollo's father in his room, examining some maps and plans which were spread out upon the table before him. When he saw the children coming in, he asked Mary, who was foremost, what they wanted. She said they had a law question, which they wanted him to decide.

"A law question?" said he.

"Yes," she replied; "a case of bailment."

"O, very well; walk in," said he.

There was a sofa at one side of the room, and he seated the children all there, while he drew up his arm-chair directly before them. He then told them to proceed. Rollo first told the whole story, closing his statement by saying,

"And so I let him have my fish; and that was a bailment, and it was not for my benefit, but his, and so he ought to have taken very especial care of it. But he did not, and lost it, and so he ought to pay."

"But we maintain," said Mary, "that the fish was not bailed to Henry at all. Rollo only gave him back the dipper, and, though the fish was in it, still the fish did not do Henry any good, and so it was not for his benefit."

"It seems to be rather an intricate case," said her father, smiling.

Henry looked rather sober and anxious. The proceedings seemed to him to be a very serious business.

However, Rollo's father spoke to him in a very kind and good-humored tone, so that, before long, he began to feel at his ease. After hearing a full statement of the case, and all the arguments which the children had to offer on one side or the other, Rollo's father began to give his decision, as follows:-

"I think that Rollo's giving Henry the dipper, with the fish in it, was clearly a bailment of the fish; that is, it was an intrusting of his property to Henry's care. It is clear also that Henry took pretty good care of it. He tried to avoid losing it. He took as much care of it, perhaps, as he would have done of a fish of his own. Still, he did not take very extraordinary or special care of it. The loss was not owing to inevitable accident. If the bailment was for Rollo's benefit, the care he took was sufficient to save him from being liable; but, if it was for his own benefit, then all he did was at his own risk; and the loss ought to be his loss, and he ought to pay for it."

"But I don't see," said Mary, "that he was to blame in either case."

"O, no," said his father; "he was not to blame for losing the fish, perhaps. That is not the point in these cases. It is not a question of who is to blame, but who ought to bear a loss, for which perhaps nobody is to blame.

"And you see," he continued, "that it is reasonable that the loss should be borne by the person who was to have derived benefit from the risk. If the risk was run for Henry's benefit, then he ought to bear the loss; which he would do by making Rollo compensation. If the risk was run for Rollo's benefit, then Rollo ought to bear the loss himself."

"Yes, sir," said Rollo; "and it certainly was for Henry's benefit, for he was trying to catch another fish for himself,-not for me. I had no advantage in it."

"That is not so certain," replied his father. "It depends altogether upon the question, who had a right to the dipper at that time. If Henry had a right to the dipper, then he might have even poured out the water, fish and all; or he might have kept the fish in, to accommodate Rollo. On the other hand, if Rollo had a right to the dipper then, and he let Henry have it, as a favor to him, then, in that case, the bailment was for Henry's benefit."

"Well, sir," said Henry, "I had a right to the dipper, for it was mine; and so it was for his benefit, and I ought not to pay."

"No, sir," said Rollo; "he had let me have it, and I let him have my basket."

"I only lent it to him," said Henry.

"But you lent it to me for the whole walk," said Rollo, turning round to Henry.

"You must only speak to me," said his father. "In all debates and arguments, always speak to the one who is presiding."

"Well, sir," said Rollo, turning back to his father, again, "he lent it to me for the whole walk, and so I don't think he had any right to take it back again."

"That is coming to the point exactly," said his father. "It all depends upon that,-whether Henry had a right to reclaim his dipper at that time, after only lending it to Rollo. And that, you see, is another bailment case. Henry bailed Rollo the dipper. This shows the truth of what I said before, that a great many of the disputes among boys arise from cases of bailment. This seems to be a sort of doubled and twisted case. And it all hinges on the question whether Henry or Rollo had the right to the dipper at the time when Henry took it. For, as I have already explained, if Henry had a right to it, then his keeping Rollo's fish in it was for Rollo's advantage, and Rollo ought to bear the loss. But if Rollo had a right to keep the dipper longer, then he bailed the fish to him, in order to be able to let him have the dipper, for he could not let him have the one without the other; and so it was for Henry's benefit; and, as the loss was not from inevitable accident, Henry ought to bear it."

"Well, sir, and now please to tell us," said Mary, "who had the right to the dipper."

"Rollo," said her father.

"Rollo!" exclaimed several voices.

"Yes," replied Rollo's father. "There is a principle in the law of bailment which I did not explain to you the other day. It is this: Whenever a person bails a thing to another person, for a particular purpose, and receives a compensation for it, the bailor has no right to take it back again from the bailee, until a fair opportunity has been allowed to accomplish that purpose. For instance, if I go and hire a horse of a man to make a journey, I have a right to keep the horse until the journey is ended. If the owner of the horse meets me on the road, fifty miles from home, it is not reasonable, you see, that he should have the right to take the horse away from me there, on the ground that it is his horse, and that he has a right to him wherever he finds him. So, if one boy lends another his knife to make a whistle with, he ought not to take it away again, when the boy has got his whistle half done, and so make him lose all his labor."

"Why, it seems to me he ought to give it back to him," said Rollo, "if it is his knife, whenever he wants it."

"Yes," replied his father, "he ought to give it up, no doubt, if the owner claims it; and yet perhaps the owner might do wrong in claiming it. Though I am not certain, after all, how it is in case a thing is lent gratuitously."

"What is gratuitously?" said Rollo.

"Why, for nothing; without any pay. Perhaps the bailor has a right to claim his property again, at any time, if it is bailed gratuitously, though I am not certain. I will ask some lawyer when I have an opportunity. But when a thing is let for pay, or bailed on contract in any way, I am sure the bailor ought to leave it in the hands of the bailee, until the purpose is accomplished; or, at least, until there has been a fair opportunity to accomplish it.

"Wherefore I decide that, as Henry intended to let Rollo have the dipper for the whole expedition, and as he took Rollo's basket, and Rollo agreed to let him have some drink, as conditions, therefore, he ought not to have reclaimed the dipper. Since he did reclaim it, Rollo did perfectly right to give it up, fish and all; and as he did so, it was a bailment for the benefit of the bailee, that is, Henry. And of course it was at his risk, and, in strict justice, Rollo has a right to claim compensation for the loss of his fish. But then I should hope he won't insist upon it."

"Well, sir," said Rollo, "I don't care much about it now."

"You see, Henry," continued Rollo's father, "I haven't been talking about this all this time on account of the value of the fish, but to have you understand some of the principles you ought to regard, when any other's property is in your possession. So, now, you may all go."

"Well, uncle," said James, as the children rose from their seats, "haven't you got some great box that we can have for our cabinet?"

"Your cabinet?" asked his uncle.

"Yes, sir, we want to make a museum."

"Why, Rollo has got a cabinet. Jonas made him one."

"Yes, sir; but he wants his for himself, and we want one for our society."

"You may have mine, now," said Rollo; "I am not going to have one alone. I have concluded to let you have mine. Come."

So Rollo moved on, as if he wished to go. In fact, he had an instinctive feeling that his conduct in respect to the cabinet and the society would not bear examination, and he wanted to go.

But his father, afraid that Rollo had been doing some injustice to his playmates, stopped the children and inquired into the case. The children told him that they had formed a society, and had elected Jonas cabinet keeper; and that Rollo had afterwards said he meant to be cabinet keeper himself, and so would not let the society have his cabinet to keep their curiosities in.

"And did he first agree that the society might have it?"

"No, sir," said Rollo, decidedly; "I did not agree to any thing about it." He thought that this would exonerate him from all blame.

"Was not there a tacit agreement?" asked his father.

"A tacit agreement!" repeated Rollo. He did not know what a tacit agreement was.

"Yes," said his father, "tacit means silent; a tacit or implied agreement is one which is made without being formally expressed in words. If it is only understood by both parties, it is just as binding as if it were fully expressed. For instance, if I go into a bookstore, and ask the bookseller to put me up certain books, and take them and carry them home, and then he charges them to me in his books, I must pay for them: for, though I did not say any thing about paying for them, yet my actions constituted an implied agreement to pay. By going in and getting them, under those circumstances, I, in fact, tacitly promise that I will pay for them when the bookseller sends in his bill. A very large portion of the agreements made among men are tacit agreements."

The children all listened very attentively, and they understood very well what Rollo's father was saying. Rollo was considering whether there had been a tacit agreement that the society should have the cabinet; but he did not speak.

"Now, Rollo, did you consent to the formation of the society?"

"Yes, sir," said Henry, eagerly; "he asked us all to form the society."

"And was it the understanding that the museum was to be kept in the cabinet that Jonas made?"

"Yes, sir," said Rollo, rather faintly.

"Then, it seems to me that there was a tacit agreement on your part, that if the children would form the society and help you make the collection, you would submit to whatever arrangements they might make about the officers and the charge of the cabinet. You, in fact, bailed the cabinet to the society."

"Yes, sir," said the children.

"And as the bailment was for your advantage, as well as theirs, you ought not to have taken possession of the property again, until a fair opportunity had been afforded to accomplish the purpose of the bailment, that is, the collection of a cabinet by the society. So, you see, you fell into the same fault in respect to the society, that Henry did in regard to you in the case of the dipper."

The children were silent; but they all perceived the justice of what Rollo's father had said.

"And the society have a claim upon you, Rollo, for compensation for the disappointment and trouble you have caused them by taking away the cabinet."

Rollo looked rather serious.

"O, we don't care about it," said Lucy.

"Well," said his father, "if the society release their claim upon you, as you did yours upon Henry, very well. I hope, at all events, you will all go on pleasantly after this."

The children then went out, and Rollo, followed by the other boys, went to find Jonas, to tell him he might be cabinet keeper. They tried to tell Jonas the whole story, and about Rollo's giving the fish to Henry, and its being a bailment. But they could not make Jonas understand it very well. He said he did not know any thing about bailment, except bailing out boats-he had never heard of bailing fishes.