Ross v. Clark

Richardson, Judge, delivered the opinion of the court. The plaintiff sued the defendant for the value of a bull alleged to have been loaned to the defendant and not returned. It may be inferred from the bill of exceptions that the defendant borrowed a bull belonging to the plaintiff, which has not been returned; but it does not appear when the bailment was made, nor that the time has expired for which it was made, nor whether a demand was ever made, nor whether the animal was dead or lost, or had ever been claimed or converted by the defendant. In the case of a gratuitous loan, the borrower is bound to take proper care of the thing borrowed, and to restore it at the proper time; and if no particular time is agreed on, it is his duty to return it in reasonable time; and, as the loan is exclusively for his benefit, he is bound to extraordinary diligence and is responsible for slight neglect in relation to the thing loaned. But the lender can not at his pleasure convert a loan into a sale without showing any thing more; and, to authorize him to recover the value of the thing loaned, it must appear that it has been lost or destroyed by the borrower’s negligence, or that he has converted it to his own use. Where however a demand is made, the party must return the property or give some account how it is lost. When the circumstances show a loss by the defendant’s negligence or establish a conversion, a demand is not necessary, but generally when the defendant in the first instance became lawfully possessed of the goods and the plaintiff' does not show an actual conversion or assumption of property by the defendant, he must prove a demand and refusal. (2 Saund. 1160; 1 Chitt. Pl. 180.) If the borrower fails in his duty to return the 'thing loaned in a reasonable time, that fact by itself will [551] not entitle tbe lender to recover its value in money. The second instruction therefore given by the court was erroneous. Judge Napton concurring, the judgment will be reversed and the cause remanded. Judge Scott not sitting.