Andrews v. Keith

Holmes, J. We must assume that the defendant left the horse to be boarded at the plaintiff’s stable at a certain rate per week, and without further agreement or explanation. On that state of facts, of course she could stop her liability at any time, but it does not follow that she could do so as she attempted to do by a simple announcement to that effect, coupled with a refusal to take back the horse. Suppose that she had been the owner of the horse, which, for the decision of the case, we must assume that she may have been, although it seems likely that she was not; and, to make the case simpler, suppose that the bailment had been only for custody, it is clear that if she had wanted to [560] stop her liability she would have had to do her half towards ending the bailment. She could not have refused to take the horse from the plaintiff’s hands, and yet have repudiated liability for the custody accepted at her request. It would not have been an answer to this action to say that the plaintiff might have turned the horse into the street, or tried jbo find a pound. Preston v. Neale, 12 Gray, 222. When the object of the bailment is a living thing, which must be fed, the right to recover the necessary expenses of preserving the object follows the right to recover for keeping it. Preston v. Neale, ubi supra. See Harter v. Blanchard, 64 Barb. 617; Handford v. Palmer, 5 Moore, 74, 79. When nothing is said about the title, it does not matter whether the bailor owns or only has possession of the thing. The principle is the converse of that stated in Stiff v. Keith, 143 Mass. 224, 225. If the bailee wishes to end his responsibility under a bailment terminable at will, he must restore the possession to the person whom, by accepting the bailment, he admitted to be entitled to it. So if a bailor wishes to do the same thing, he must accept the possession which, by making the bailment, he has affirmed properly to belong to him. It does not necessarily follow from our decision that, in a case like the present, the plaintiff could have kept silent after the defendant’s refusal to receive the horse, and have charged her for more than a reasonable time without taking any further steps. There is no such question before us. The amount to be paid in case the judge’s ruling was wrong is agreed upon. The judge ruled that the plaintiff could recover nothing for the keep of the horse after he was notified-that the defendant refused to pay. This, in our opinion, was wrong. See Dale v. Brinckerhoff, 7 Daly, 45, 46. Judgment for the plaintiff for $ISO.50.