Jenkins v. Bacon. itor. The bonds were subsequently delivered by the defendants to the plaintiff's wife upon her presentation of an order purporting to be signed by him, which was in fact a forgery. The defendants were held accountable for the value of the bonds, not on the ground of any want of due and reasonable care, but because they had disposed of them in a manner not authorized by the contract. The fact that their instructions were expressed in writing could add nothing to the duties required of them by their contract. They were held liable for the reason that they had no authority to do what the defendant in this case attempted to do; and because such a delivery to the wife was a violation of their trust. 99 In Stewart v. Frazier, 5 Ala. 114, the defendant had received money to be kept for the plaintiff, without compensation. No instructions had been given to the defendant to remit the money, but from kindness and the best intentions he undertook to remit it by the hands of a person "reputed to be an honest man.' The money was lost, and the defendant was held responsible, on the ground that it was a case in which the plaintiff was exposed to a risk to which he had not consented. The court say "the law would be the same if the public mail had been resorted to, instead of a private conveyance." They add that the question of gross negligence in the transmission of the money does not arise, as the defendant "had no authority to transmit, in any mode, either express or implied." As we have already remarked, if the defendant had delivered the bond by mistake to a person not entitled to receive it, he would make himself responsible, without regard to the question of due care, or degree of negligence. His duty was to keep the deposit; he could not dispose of it without the express or implied authority of the depositor. It will not be contended that the case shows any express authority for sending it by mail to the plaintiff's wife, and certainly none can be implied from the circumstances. In so doing, he subjected the plaintiff to a risk which he had not contemplated, and did an act not authorized by the terms of his trust. It was left to the jury to say whether, in the words of the presiding judge, it was "a disposition of the bond contrary to the original understanding," whereby the de fendant lost it. Jenkins v. Bacon. The result is that we find no error in the course of the trial in this part of the case. The fact that the plaintiff offered his wife as a witness to prove that she did not authorize or direct that the bond should be sent to her, would not have justified an inference by the jury that she was his agent during his absence at sea. The defendant therefore was not entitled to the second ruling which he requested of the court. The defendant's demurrer to the declaration for the alleged misjoinder of tort and contract was properly overruled. It is sufficiently averred in the declaration itself that the counts are for the same cause of action, and this averment removes the objection upon which the defendant relies. Gen. Sts. c. 129, § 2, cl. 5. The majority of the court, therefore, concur in the order, Exceptions overruled. MORTON, J. I am unable to concur in the opinion of the majority of the court. The general rule is well settled that a gratuitous bailee or unpaid agent is liable only for gross negligence. If the property intrusted to him is stolen or lost or injured without negligence on his part, he is not responsible. Foster v. Essex Bank, 17 Mass. 479. Whitney v. Lee, 8 Met. 91. Coggs v. Bernard, 1 Sm. Lead. Cas. 283 and notes. It seems to me that the result of the authorities is, that the gist of the action against such bailee, whether it be, in form, contract or tort, is the negligence of the defend. ant. The ground of the right to recover is that some wrongfu act of the defendant has caused the destruction or loss of the plaintiff's property. If it is lost by any casualty which does not involve negligence of the bailee, the loss is the bailor's. I am not able to see why this rule does not apply to a case like this, where the bailee undertakes to terminate the bailment or agency. He is not bound by a contract founded upon a sufficient consideration to continue it for any definite time. It is clear that he might terminate it at any time upon giving notice to the bailor. Cases may occur in which it would be justifiable for the bailee to terminate his agency, even without notice to the bailor, where, Jenkins v. Bacon. as in this case, such notice is impossible. There may be a change of circumstances which makes it necessary, or reasonable as a measure of prudence, for the preservation of the property, to substitute a new custodian. Suppose the bailment was of a horse, and the bailee's stable was burned, could it be held that he could not put the horse in the custody of some proper person, or that, if he did so, he would be regarded as an insurer of its safety? Suppose the bailee becomes bankrupt and an unsuitable person to have the charge of such property as has been intrusted to him, may he not, for the greater security of the property, commit it to the charge of some responsible person? Or suppose he is obliged to leave the country, so that he cannot retain the custody of the property, may he not deposit it with a suitable custodian at the risk of the bailor? Or suppose the property is fraudulently obtained from him by means of a forged power of attorney, or order purporting to be signed by the bailor, calculated to deceive the most prudent man, is the bailee liable for the loss? Other cases might be supposed. In all such cases, I think, the liability of the bailee depends upon the question whether his act was negligent or wrongful. If he did what men of ordinary prudence would do under the same circumstances, he has performed all the duty which is imposed upon him by the nature of his undertaking; he is guilty of no negligence by which the bailor's property is injured, and ought not to be held liable for it. I am of opinion, therefore, that in the case at bar it should have been left to the jury to decide whether it was negligence in the defendant, under the circumstances of the case, to attempt to terminate his agency by sending the bond to the plaintiff's wife. and that the instruction to the effect that if he lost it by a dis position of it contrary to the original undertaking, he was liable without regard to the degree of care shown, was erroneous. The effect of the ruling is to hold the defendant liable to the same extent as if he were bound by a contract, upon a sufficient consideration, to continue the custody of the bond until the plaintiff's return. It excludes from consideration all inquiry as to the cirumstar.ces which induced him to change the place of deposit. In my opinion, it was a question of fact for the jury to determine, Bangs v. Brewster. whether, under the circumstances, the defendant was guilty of negligence in undertaking to send the bond to the plaintiff's wife, or in the mode he adopted in sending it. The case of Heugh v. London & North Western Railway Co. L. R. 5 Ex. 51, sustains the views I take of the rights and duties of gratuitous bailees. It differs from several cases decided by this court in holding that railroad companies, after the transit of goods sent by them is terminated, are mere gratuitous bailees. Lichtenhein v. Boston & Providence Railroad Co. 11 Cush. 70. Hall v. Boston & Worcester Railroad Co. 14 Allen, 439. Cass v. Boston & Lowell Railroad Co. Ib. 448. These cases were decided upon the ground that the defendants therein were warehousemen, and bound to the duties and obligations of that relation. way Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. They do not present the case of a mere gratuitous bailee, and, it seems to me, do not decide the question involved in the case at bar. Nor HIRAM B. BANGS vs. INHABITANTS OF BREWSTER. A master mariner, whose domicil of origin was in the town of A., left A. in 1867 and went to sea with his wife, intending to make his home in the town of B. In pursuance of this intent, he in 1868 sent his wife to B., where she boarded at her father's house, and in July 1869 he arrived at B. himself. Held, that in May 1869 his domicil was in B. CONTRACT to recover the amount of a tax assessed by the defendants on the plaintiff, for the year 1869, and paid by him under protest. At the trial in the Superior Court, before Brigham, C. J., the following facts appeared: The plaintiff was born in Brewster, and continued to reside there until 1867. He was a shipmaster, and arrived at Brewster from a voyage in July 1867. In the following October, he became engaged to marry a woman who resided in Orleans, and previous to the engagement and until the marriage he made temporary visits to her in Orleans. In November he married her in Chelsea, went from Chelsea with his wife on November 12 on Bangs v. Brewster. board his ship which lay at Boston, and thence to sea, first to San Francisco, and then to Liverpool. On his arrival in Liverpool, in December 1868, he sent his wife, who was expecting to be confined, to her father's house in Orleans. She arrived there in February 1869, and the plaintiff himself arrived in port and went to Orleans in the July following. He and his wife boarded at her father's about one month, and then went to Chelsea, where he established himself. The plaintiff testified "that on his arrival home in Brewster, in 1867, he found his father dead, his father's house, where he made his home when ashore, burned, and his friends scattered, that having children, but no wife, he determined to abandon his domicil in Brewster, and told one of the assessors of Brewster that he must not tax him again; and that, upon his engagement to be married, he determined to make Orleans his home, and continued in that determination until after May 1, 1869." The defendants introduced evidence tending to contradict the plaintiff, and to show that he did not intend to make Orleans his home; and they contended that even if the jury should be satisfied that the plaintiff intended to make Orleans his home, as he testified, he had not shown such a personal presence in Orleans as would authorize the jury to find that he acquired a domicil there. The defendant asked the judge to instruct the jury as follows: "If the plaintiff only went to Orleans for temporary visits to his intended wife, previous to November 1867, when he went to sea, his subsequent sending of his wife to Orleans, where she boarded at her father's house, the plaintiff himself not going there until after May 1, would not justify the jury in finding a change of domicil to Orleans." "The plaintiff would not lose his residence in Brewster until he had gone to Orleans with a fixed purpose to make that his home." The judge declined so to instruct the jury, and instructed them as follows: "The facts alone considered, that the plaintiff only went to Orleans for temporary visits to his intended wife, previous to November 1867, when he went to sea, and subsequently sent his wife to Orleans, where she boarded at her father's house, the plaintiff himself not going there until after May 1, would nɔt |