Clapp v. Nelson , 12 Tex. 370 ( 1854 )

Hemphill, Ch. J.

This is an action for the recovery of specific chattels which the plaintiff alleged he had loaned for a day or two to the defendant, and which the said defendant, although the time for the loan had expired, had failed and refused to deliver or return to the plaintiff.

The defendant demurred, on the ground that there was no allegation in the petition, that demand had been made of the property sued for. The demurrer was sustained and the plaintiff appealed.

We are of opinion that the judgment, sustaining the demurrer, was erroneous. The plaintiff’s allegations about the loan or the time for which it was made, are not very definite and precise, but they are sufficiently definite to authorize proof of the facts. He alleges property in himself about ten days before the commencement of suit, and that he had made a loan for a day or two, the term for which had expired. The phrase, a day or two, is rather indefinite; but I presume a jury, with the facts before them, would have but little difficulty in determining whether the property had been detained longer than a day or two or not. Whether a demand should be made, in cases of bailment, previous to suit, depends upon the stipulations as to time for the return of the property. The return must be made at the time contemplated in the contract. If the property be detained beyond that period, no demand would be necessary in order to sustain an action for its recovery. It is not one of the obligations of the lender, that he shall at the expiration of the loan go after and bring back his property, but it is the duty of the borrower to restore it according to his stipulations. If no time is fixed for the return, then a demand might be necessary as a prerequisite to the action. In this case it is averred that the time for the loan had expired. If such were the fact, and the demurrer admits its truth, it was the duty of the defendant to have restored the property, and he cannot justify its detention on the ground that no demand was made for its restoration. (Story on Bailments, Sec. 257 & 259.) Judgment reversed and cause remanded.

Eeversed and remanded.