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to an action on his bond for the same the third person a bond conditioned neglect of duty. Lower Alloways for the sale of such goods and the apCreek v. Moore (1835) 15 N. J. L. 146. plication of the proceeds on plaintiff's

In Farnum v. Kennebec Water Dist. debt. The sale was apparently made (1909) 95 C. C. A. 355, 170 Fed. 173, by defendant, and plaintiff sued him, in affirming a judgment for defendant alleging the delivery of the goods to in an action on quantum meruit by a defendant by C. for sale, and paycontractor who had been prevented ment of the proceeds upon the indebtfrom completing his contract, but who edness due plaintiff. It was held that had been paid the monthly estimates a judgment for defendant was concluprovided for by the contract, the court sive, in a subsequent action brought remarked that the judgment would not by plaintiff against defendant on the be a bar to any suit which plaintiff bond. might bring in the nature of tort for In Ibester v. Ray (1896) 26 Can. S. a breach of the contract, or for any C. 79, affirming (1895) 22 Ont. App. portion of the percentage of the esti. Rep. 12, which reversed in part (1894) mates, retained until completion of the 24 Ont. Rep. 497, an action was contract as provided therein, if there brought on a note made by a firm and was any such portion unpaid.

indorsed by defendant, who alleged In an action by a collector of excise that he indorsed without consideraagainst his deputy on his bond, it was

tion, for plaintiff's accommodation, held in Chapman v. Brainard (1796) Judgment was rendered in his favor 2 Root (Conn.) 375, that the action and in favor of plaintiff against the was not barred by a judgment for de

firm. Plaintiff subsequently sued defendant in a former action, brought fendant on the judgment against the against him by plaintiff on book debt, firm, and on other notes executed by in which, by agreement of the parties,

the firm, alleging that he held himhe presented all his claims and de

self out as a member of the firm. mands for excise which he might or

Though holding that the former judgcould make by the condition of the

ment was not conclusive in his favor, bond, the court saying that a judgment in an action of book debt was no

as to his nonliability on the notes sued bar to an action on bond.

on in the second action, the court held In Edwards v. Baker (1888) 99 N.

that it was conclusive as to his nonC. 258, 6 S. E. 255, it appeared that, liability on the note sued on in the plaintiff having attached goods in the former action, and that there could be hands of C. as the goods of his debtor, no recovery against him on the judythe debtor and defendant executed to ment.

A. Mc. T.

E. L. TREVATHAN, Admr., etc., of Ellen Kierce, Appt.,


Kentucky Court of Appeals - February 13, 1917.

(Kierce's Admr, v. Farmers Bank, 174 Ky. 22, 191 S. W. 644.) Bailment — wrongful delivery — liability.

1. Where bailment is made of an article owned by two persons, either of them may instruct the bailee not to deliver the thing bailed to the other, even though they are husband and wife, and if the bailee agrees to this, and, in violation of this instruction and his agreement, does deliver the thing to one bailor, his liability will be the same as though he delivered it to a stranger.

[See note on this question beginning on page 1196.]

(Kierce's Admr. v. Farmers Bank, 174 Kv. 22, 191 8. W. 644.) - deposit of papers in bank.

care, and is answerable only for gross 2. A bank which permits customers negligence or bad faith. to place valuable papers in a box un

[See 3 R. C. L. 99, 100.] der its control, kept for the use and


gross negligence - deliv. accommodation of customers, occupies

ery of paper to bailor. to persons depositing such papers the

4. A bank which, after accepting relation of bailee without compensa

papers from a man and wife for safe

keeping, and receiving notice from tion.

her not to deliver them to him because (See 3 R. C. L. 94-96.]

he is drinking, may be found guilty of - liability of gratuitous bailee.

gross negligence or bad faith in case 3. A bailee holding a bailment for

it so delivers them to him, so that he

obtains money on them and squanders the sole benefit of the bailor is obligated only to the exercise of slight [See 3 R. C. L. 99 et seq.]


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APPEAL by plaintiff from a judgment of the Circuit Court for Hickman County in favor of the defendant bank in an action brought to recover the amount alleged to be due on three certain land notes. Reversed.

The facts are stated in the opinion of the court.
Messrs. M. T. Shelbourne and J. M. being that no part of the proceeds
Brummal, Jr., for appellant.

of the notes was applied to the payMr. E. T. Bullock for appellees.

ment of the insurance debt. Carroll, J., delivered the opinion of In an amended petition a recovery the court:

was sought upon the ground that the This guit was brought by the ad proceeds of these notes were deposiministrator of Ellen Kierce to re ted in the bank to the credit of the cover from the Farmers Bank of Co joint account of Ellen and Pat lumbus, $2,025.79, alleged to be due Kierce, with instructions not to alon account of the principal sum of

low Pat Kierce to check it out; but three land notes of $466.67 each, that the bank permitted the money dated March 17, 1909, together with

so deposited to be withdrawn on interest thereon, executed by George

checks bearing the signatures of Higgerson to Ellen and Pat Kierce

Ellen and Pat Kierce, which signaas the purchase price of a tract of tures were made, as the bank knew, land owned by Ellen Kierce. The by Pat Kierce alone, and without any suit was based on the ground that authority from Ellen Kierce to sign these three notes, which were really

her name to the checks. owned by Mrs. Kierce, were deposi


On the trial of the case there was ted with the bank, and the cashier a judgment for the bank, and the notified that the notes were deposi- administrator appeals. ted for the express purpose of apply

The basis of the suit is to be found ing the proceeds of their collection

in the following evidence of Mrs. to the payment of a note due by the

Trevathan, who was a daughter of Kierces to the Union Central Life

Pat and Ellen Kierce, in which she Insurance Company. That he was relates a conversation that she says instructed not to allow Pat Kierce to

took place in October, 1909, between withdraw any of the notes, or sell

herself and J. P. De Boe, the cashier or dispose of them in any manner. of the Farmers Bank: That when they were collected the

I went to the Farmers Bank of proceeds were to be applied to the Columbus; introduced myself to the payment of the insurance debt.

cashier, Mr. J. P. De Boe; told him That, in violation of this agree that I was Mrs. Trevathan; that I ment and the instructions given to was Mrs. Kierce's daughter, and that him, the cashier permitted Pat my mother had sent me there to see Kierce to withdraw the notes and se if my father had tried at any time cure the proceeds thereof, the result to collect any money or interest in


I says:

any way on the land notes that were in November, 1909, and died in Febplaced there on the sale of some land ruary, 1910, and that from the bein March before that. He studied a ginning of her illness until her death minute, and says: “No, he never she was unable to transact any busihas."

"Father has been ness, and did not sign any checks. drinking very heavily lately, and George Higgerson, the purchaser mother was afraid he had tried to of the land in payment for which he draw the interest on it or something executed the three notes, paid by his of the kind, and she sent me here to check to Pat and Ellen Kierce on tell you that, if he did, not to let him November 24, 1909, $466.67 in satishave any of the money, not to let faction of one of the notes, and this him have any of the interest, or any- check, as appears from the records thing on the note." He says: "Tell of the Farmers Bank, was on that her to rest easy, I won't let him have day deposited in the bank to the them.” I says: “Nor nobody else; credit of an account in the name of he may try to borrow money on the Ellen and Pat Kierce. The other outside and give them as security." two notes he paid by a check payable I said: “She placed this note here to Ellen and Pat Kierce for $900, on to meet a mortgage on the home February 7, 1910. Neither this place, and if he gets the money they check nor its proceeds were deposiwill lose their money, and not be able ted in the Farmers Bank to the credto pay the mortgage off that is on it of the account of Ellen and Pat their home.” He says: "Her and Kierce. Pat both told me that when they put The cashier, De Boe, testified that them in. You tell her to rest easy; the Farmers Bank never at any time I will attend to it.” I says: "Mr. had for collection the notes executed De Boe, is my notice lawful and le- by Higgerson to the Kierces. He gal; could he handle those notes by said he did have a conversation with my notification, or had my mother Mrs. Trevathan some time in Octobetter come in person and serve no- ber, 1909, in which she told him not tice on the officers in order to give to pay out any more money on the proper notice, in order that in the checks of Pat Kierce, but that he did event pa should come, or anybody not have any conversation with her come and try to get them?" He in which she asked him to hold the says: “Your notice is all right; tell

notes, or the money on them. That her to rest easy; I will attend to it he did not know that they owed the for her." That was the conversation Union Central Life Insurance Combetween me and Mr. De Boe; that pany anything. That he had never was in October, a few weeks before collected anything on the notes, but she took sick.

that Pat Kierce, when he collected Q. You never told the cashier of the money on the first note, put the the bank not to cash any checks is- check in the bank; that Ellen and sued by your father and mother? Pat Kierce had a joint account in the

A. I told him to take care of the bank, and no money was drawn out land notes; not to let him have any on this account, except on checks money on them; that was my in- signed by Ellen and Pat Kierce. structions.

He said that the bank had a box Q. I will ask you if you ever told in which customers were in the habit Mr. De Boe, cashier of the bank, not

of putting papers, and that these to cash any checks drawn on that

Higgerson notes were placed in that bank signed by Ellen and Pat

box for safe-keeping.

That Pat Kierce?

Kierce got the notes and gave them A. No, I didn't tell him that.

to Higgerson, and that he had no The evidence also shows that Pat right to prevent him from doing so. Kierce was in the habit of drinking that he had no instructions from excessively; that Ellen Kierce was

any person not to let him have the stricken with a serious illness early notes. Their customers who put

papers in


(Kierce's Admr. v. Farmers Bank, 17! Ky. 22, 191 8. W. 644.) notes or papers in the box had the

This box was under the control of right to come there and get them the bank, and kept by it for the use out when they wanted to.

and accommodation of its customers. There was filed with the evidence So that, as to all of the cashier a copy of the joint papers


papers placed in deposit of bank account of Ellen and Pat this box by the cusKierce, covering the entire period tomers of the bank, involved in this suit, and it appears it occupied the relation of a bailee from this account that on November without compensation, and held the 24, 1909, $466.67 was deposited to papers solely for the accommodation the account of Ellen and Pat Kierce. of the bailor. This deposit was the proceeds of one The duties of a bailee without of these notes, paid on that day by compensation and for the mere acHiggerson. The other two notes, as commodation of the bailor have been is shown by the evidence of Higger- laid down in many cases by this and son, were paid by his check to Ellen other courts. The liability of the and Pat Kierce for $900 on February bailee in bailments like this is very 17, 1910, but the bank records do not well set forth in 5 Cyc. 186, where it show that this amount, or any part is said: “Where the bailment is one of it, was deposited to the credit of which is for the sole benefit of the Ellen and Pat Kierce, although the bailor, it is uniformly held that the check of Higgerson was made pay bailee is obligated only to the exerable to them.

cise of slight care,

-liability of De Boe further testified that this and is only answer- gratuitous $900 check, after it had been in- able for gross negdorsed with the signatures of Ellen lect or bad faith.” Supporting this and Pat Kierce, which signatures, rule are: Green v. Hollingsworth, 5 we may assume, were made by Pat Dana, 174, 30 Am. Dec. 680, 1 Am. Kierce alone, was delivered to him. Neg. Cas. 771; United Society of That he had no distinct recollection Shakers v. Underwood, 9 Bush, 609, of what disposition was made of this 15 Am. Rep. 731; Ray v. Bank of $900 check, and did not remember Kentucky, 10 Bush, 344; Dunn v. whether or not Pat Kierce had an Kyle, 14 Bush, 134; Kowing v. Manindividual account in the bank, but ly, 49 N. Y. 192, 10 Am. Rep. 346; if he did, the proceeds, after the in- Jenkins v. Bacon, 111 Mass. 373, 15 dorsement of the check, were placed Am. Rep. 33, 1 Am. Neg. Cas. 781.

to his credit. At any rate, neither The principle of these cases is also 012"

this $900 check, nor any part of it, laid down in 3 R. C. L. pp. 99-104. was ever credited to the joint ac Applying to the facts of this case count of Ellen and Pat Kierce. the duty imposed upon the bank as What became of the money collected

a bailee without compensation, we on the check, the record does not think there was sufficient evidence show

to take the case to

Evidence-gross There is no evidence in the record the jury upon the negligencethat these notes, or any of them, theory that the delivery of were placed in the bank for collec- bank, in letting Pat tion, or as a special deposit, and the Kierce have possession of these uncontradicted evidence of the cash notes, was guilty of bad faith and ier is that they were not placed in gross negligence. If the testimony the bank either for collection, or as

of Mrs. Trevathan is true, the casha special deposit. It does, however, ier was instructed not to permit Pat

appear that some time previous to Kierce to have possession of these ed " October, 1909, these three notes had notes for any purpose, and he prom

been placed by the Kierces in a box ised to observe these instructions.

that the bank had for the accommo But in violation of the instructions net dation of its customers, and in which he permitted Pat Kierce to take pos

papers might be placed by them. session of the notes and collect them.

paper to bailor,

It is true that $466.67, the pro- that if they believe from the eviceeds of one of the notes, was placed dence that these notes had been by Pat Kierce on deposit in the bank placed for safe-keeping in the bank to the credit of the account of Ellen by the Kierces, and, while they were and Pat Kierce; but it appears that in the bank and before any of them he drew all this money out on checks had been paid, Mrs. Kierce, through to which the names of Ellen and Pat her agent, notified the cashier not to Kierce were signed by himself. The permit Pat Kierce to get possession $900 received on the other notes, so of the notes, or any of them, or refar as this record shows, was all paid ceive any money on any of them, and to him, or at any rate, came into his he agreed to this, and that, in violapossession, What part of the pro- tion of these instructions and his ceeds of these notes was applied to agreement, the cashier of the bank the use or benefit of Mrs. Kierce permitted Pat Kierce to take possesdoes not appear, nor does the fact sion of the notes or the proceeds, that Pat Kierce was her husband al- they should find for the administrater the duty the bank was under to tor the amount of the notes with inobserve the instructions given by terest, less whatever sum received Mrs. Trevathan.

by Pat Kierce from the proceeds of We think there can be no doubt these notes was applied to the use or that where a bailment is made of an benefit of Ellen Kierce. The conarticle owned by two persons, or a verse of this instruction should be note payable to two persons, either given if requested. one of them may instruct the bailee

The parties may also file such not to deliver the amended pleadings as they desire. Bailmentthing bailed to the

Wherefore, the judgment is reother bailor, and if versed, with directions for a new liability. he agrees to do

trial in conformity with this opinion. this, and, in violation of these instructions and his agreement, the bailee does deliver the thing to one

NOTE, of the joint bailors, the liability of the bailee will be the same as if he had delivered the thing bailed to a

The reported case (TREVATHAN V.

FARMERS BANK, ante, 1180), is of instranger.

terest as bringing out the point that We do not, of course, express any

the liability of a gratuitous bailee does opinion upon the merits of the case,

not invariably depend upon want of or as to the weight that should be attached to the evidence of Mrs.

due care on his part, but that if he Trevathan, or as to whether she

deals with the subject of the bailment gave to the cashier the instructions in a manner not warranted by his inrelated by her. We merely say that

structions, and it is lost or damaged, her evidence and the other admitted he is liable therefor. In such a case, facts made out a state of case en- however, he may escape liability, if titling the plaintiff to go to the jury his act has been ratified by the bailor under proper instructions, and such with full knowledge of the circuminstructions were not, as we think, stances. For full discussion of this given.

point, see subd. V. of annotation on On another trial, if there be one, page, 1225, on “Duty and liability of the jury should be told, in substance, gratuitous bailee or mandatary."

wrongful delivery

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