Reinstein v. Watts , 84 Me. 139 ( 1891 )

Emery, J.

The undisputed facts are these: The plaintiff was a wholesale clothing dealer in Boston. It was a part of his business to cut and trim garments and send them out to different shops to bo made up and returned to him. The defendant had a shop in Norridgewock where he carried on the business of taking in such garments, making them up and returning them to the clothing dealers. At one time the defendant, either in person or through an agent, applied to the plaintiff for garments to be sent him to make up and return as above described. The prices for making were agreed to, and from time to time thereafter several lots of such garments were sent by the plaintiff to the defendant to be thus made up and returned. As each lot was started from Boston for Norridgewock an invoice thereof was sent by mail by the plaintiff and was received by the defendant before the arrival of the garments at Norridgewock. On the top of each invoice was the printed word "NOTICE” in large letters and under this word, among other items, was the following printed item:

"The maker to pay all expenses for freight and other charges, and the goods to be at his risk against loss by fire or otherwise, until returned to us.”

The defendant received the garments into his shop and proceeded to make them up. While engaged in this work and before he had returned all the garments a fire destroyed his shop and also the last two lots of garments sent by the plaintiff.

There was no evidence contradictory of the above and the defendant did not deny having received the invoices and read the notice on them as above stated.

The plaintiff brought an action of assumpsit to recover the value of the garments he had intrusted to the defendant and which the defendant had not sent back to him. His declaration, among several counts, contained one on a special contract of bailment to the defendant to receive, make up, and return at his own risk. The plea was the general issue. Upon these pleadings and the above undisputed evidence, the presiding justice directed a verdict for the plaintiff, and the defendant excepted.

We think the defendant’s acceptance of the garments to make up and return, under the distinct notice in the previous or contemporaneous invoice, that they were "to be at his risk against loss by fire or otherwise until returned,” constituted an acceptance by him of those terms of the bailment to him, no agreement to the contrary being shown. Such notice and acceptance of the bailment under it, are clear and undisputed evidence of the contract declared on, of a contract by the defendant to assume the risk of loss by fire and to be accountable in all events for the return of the garments. Harmon v. Salmon Falls Mfg. Co. 35 Maine, 447 ; Maker v. Maker, 74 Maine, 104 ; Grace v. Adams, 100 Mass. 505 ; Kirkland v. Dinsmore, 62 N. Y. 71; Fonseca v. Steamship Co. 153 Mass. 553.

The intrusting the garments by the plaintiff to the defendant to be made up for a given price, constituted a consideration on the plaintiff’s part for the contract on the defendant’s part to re-deliver at all hazards. The parties to a bailment locatio opens faciendi may lawfully make such a stipulation a part of the contract. Story on Bailments, 426 a. The bailor may decline to make the bailment unless the bailee will so stipulate, and if the bailee does so stipulate in order to secure the bailment to him and does thereby obtain it, such bailment is a valid consideration for the stipulation.

There was at the trial some conflict of evidence as to whether the plaintiff also verbally notified the defendent before any garments were sent, that they would be at the defendant’s risk, if sent. The defendant only contended, however, that nothing at all was. said about such risk or insurance prior to the receipt of the invoices. In our view of the case, it is immaterial whether such prior verbal notice was given or not and the exclusion of evidence on that question was not prejudicial to the defendant. The written notice was undisputed.

Exceptions overruled.

Peters, C. J., Walton, Virgin, Foster and Haskell, JJ., concurred.