Morse v. Androscoggin Railroad , 39 Me. 285 ( 1855 )

Shepley, C. J.

— The plaintiff claims to recover damages for the injury and loss of the contents of a bos delivered to the defendants’ agent at Livermore Falls to be transported to Boston. It is denied, that he has such an interest in the property as will enable him to maintain the action. From the case, as presented, it appears, that Saroni & Good-heim, of Boston, caused some cloth to be cut and prepared to be made into coats, “ and sent it to the plaintiff, in Dix-field, to be made and finished and returned to said Saroni & Goodheim to Boston; and when made and finished they were accordingly left with and delivered to the depot master of the defendants to be so forwarded.” The coats appear to have been put into a box properly marked, and the plaintiff paid sixty-one cents for its carriage.

This was a species of bailment denominated locatio operis faciendi, where work is to be performed for a pecuniary recompense upon the thing delivered. In such case the property does not pass from the general owner to the workman, unless the thing is to be deprived of its original character and converted into something essentially different; as an ingot of gold into personal ornaments.

In this case the general property was in the owners of the cloth, while the plaintiff acquired a special property in it, to enable him to retain and protect it for the performance of the work to be done upon it. The plaintiff would not be liable to the general owners for the loss of it while in his possession, unless it was occasioned by his negligence or fault. He was responsible for ordinary care and diligence respecting it, while it was in his possession, and for its delivery to the common carrier to be returned. There is no testimony presented tending to prove any liability for its safe return by the carrier to the general owner. It cannot be presumed, that such a bailee would become an insurer to the general owner of the risks of transportation. When the plaintiff had performed Ms work, had properly enclosed the property, delivered it to the carrier and paid for its carriage, his whole duty had been .performed. Ills responsibility respecting it, and his special property in it terminated, when he ceased to have possession or any right to possession of it.

Having ceased to be bailee, and to have any special property In the coats before they were injured or lost, the plaintiff cannot maintain the action.

Plaintiff nonsuit.