Rapid Safety Fire Extinguisher Co. v. Hay-Budden Manufacturing Co. , 75 N.Y.S. 1008 ( 1902 )

Ebeedmae, P. J. (concurring).—

It may be conceded that, as a general rule, under the ordinary obligation of a bailee to return the article hired, he is not liable for failure to return, if before the time arrived the article was destroyed without his fault, and that this is only another way of saying that an obligation expressed in such language carries with it an implied condition that the article to be returned shall be in existence at the time when the obligation to return arises. Young v. Leary, 135 N. Y. 578.

But the parties may, by express contract, vary the rule. In the case at bar the contract expressly provides for liability in case of destruction. The word “ destroyed ” is used without limitation and hence it is difficult to see why destruction by fire should constitute an exception. True, either party might have insured against loss by fire. But when it is considered that it was the business of the plaintiff to hire out fire extinguishers to a large number of persons in different localities and in each instance would have had to effect separate insurance unless protection against loss by fire could be secured by some special provision in the contract of bailment, it seems but reasonable to conclude that the contract in this case contemplated to cast the burden of loss in case of destruction by fire upon the bailee.

The case of Coldwell-Wilcox Co. v. Sullivan, 3 App. Div. 359, does not help the defendant here, because the defendant in that case was sought to' be held liable upon a special agreement to insure the property, hut which agreement the referee found was never made and which finding the Appellate Division refused to disturb on conflicting evidence.

I concur in the views expressed by Mr. Justice Giegerich and in the conclusion that the judgment should be affirmed with costs.