George A. Ames & Co. v. Melendy

The opinion of tlie court was delivered by ROWELL, J. That bailees of the character the plaintiffs were, may, by special contract, enlarge or restrict the obligation that the law would otherwise impose upon them by reason of the bailment, is beyond question. Wells v. Steam Navigation Co., 2 N. Y. 204; Dale v. See, 51 N. J. Law, 378-14 Am. St. Rep. 688. It is evident in this case that the pleader did not intend to declare upon the undertaking that the law would imply from the bailment, else lie would have alleged negligence, with a per quod. But he declares upon a different undertaking, which must be taken for present purposes as a special undertaking; and it is one that could have been broken by the plaintiffs without negligence on their part, as it is declared upon as absolute and un [556] conditional, and therefore the allegation of negligence is not essential to the assignment of a good breach of it. If it should turn out on trial that the parties did not enter into the special contract declared upon, but only into such a contract as the law implied, the plaintiff’s rights can then be fully' protected. Judgment affirmed and cause remanded.