The defendant had care of the plaintiff’s cask of brandy. He broke the cask and spilt the brandy.
Held: A bailment can exist notwithstanding that it is gratuitous, i.e. without consideration passing from the bailor to the bailee. The declaration that defendant was not a common porter and had been given nothing for his pains, was good, though there was no consideration. Gould J said: ‘The reason for the action is, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in the executing which he has miscarried by his neglect.’ The historical approach of the common law to the question of negligence found its inspiration in Roman law concepts, as in the case in the law of bailment. As to the setting up of a nominal contractual obligation to obviate difficulties in negligence: ‘Secondly it is objected, that there is no consideration to ground this promise upon, and therefore the undertakings is but nudum pactum. But to this I answer, that the owner’s trusting him with the goods is a sufficient consideration to oblige him to careful management. Indeed if the agreement had been executory, to carry these brandies from one place to the other such a day, the defendant had not been bound to carry them. But this is a different case, for assumpsit does not only signify a future agreement, but in such a case as this, it signifies an actual entry upon the thing, and taking the trust upon himself. And if a man will do that, and miscarries in the performance of his trust, an action will lie against him for that, though nobody would have compelled him to do the thing.’
Holt CJ said that there were six classes of bailment.
Lord Holt CJ, Powell J
(1703) 1 Sm LC (13th Ed) 175, [1703] 1 Salk 26, [1703] 1 Com 133, [1703] Holt KB 13, [1703] 2 Ld Raym 909, [1703] 3 Salk 11, [1703] 92 ER 107, [1703] 36 Digest (Rep 1) 32
Commonlii
England and Wales
Cited by:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Skelton v London and North Western Ry Co CCP 1867
The defendant’s railway lines crossed a public footpath. The lines were bounded by gates which swung to, as required by law, but were not as usual also fastened. The deceased stopped as one train passed, but then stepped out in front of another and . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – TRM Copy Centres (UK) Ltd and Others v Lanwall Services Ltd HL 17-Jun-2009
Each party contracted hire copiers to shops and offices. The claimant said that the defendant had interfered with their contracts by substituting their equipment. The defendants said that the claimants’ contracts were controlled by the 1974 Act, but . .
See Also – Coggs v Bernard ER 234 1738
The defendant assumpsit to take up a hogs-head of brandy in a cellar, and safely to lay it down in another cellar ; and he so negligently laid and put it down in the other cellar, that for want of care the cask was staved, and so much brandy lost. . .
See Also – Coggs v Bernard 839 1795
hogshead of brandy . .
See Also – Coggs v Bernard ER 837 1795
Casks of Brandy . .
Lists of cited by and citing cases may be incomplete.
Negligence, Agency
Leading Case
Updated: 29 November 2021; Ref: scu.216353