Page:Harvard Law Review Volume 10.djvu/529

Rh premises, and Partridge was solely liable. The defendant Partridge was a coach-maker, and the plaintiff, knowing all the facts, left his carriage under Partridge's care. The rent being in arrears, the landlord, as he was legally entitled to do, seized the plaintiff's carriage and was about to sell it. Thereupon the plaintiff, in order to release his carriage from the seizure, paid a sum equal to the rent, and brought suit to recover the amount so paid, not from Partridge. only, but from all the defendants. It was objected that only Partridge was liable.

The court sustained a recovery against all three, and the learned author, by reason of his doctrine of unjust enrichment, agrees with them. I should agree with the conclusion as to Partridge, but on grounds neither of enrichment nor of restitution, and I should disagree as to the other two.

The defendant Partridge was a bailee of the carriage, and there. fore under a contractual obligation to care for it. His omission to protect it from seizure was a breach of that obligation, precisely analogous to a breach by failure to protect it from storm which to his knowledge was imminent. Indeed, in the actual case, his omission was the more culpable, since his own wrong-doing had brought about the danger. It is as if he had wrongfully diverted a watercourse from some neighbor's land, and had then omitted to protect the carriage from the effects of the water so diverted. The damage which the plaintiff suffered from the breach was precisely the amount of rent which he had to pay in order to save his property. Therefore the plaintiff should be allowed a recovery from Partridge upon his contract of bailment to the extent of his payment. The doctrine of restitution cannot apply, because, while the plaintiff suffered a loss and Partridge received a benefit, nothing passed from him to Partridge and there was nothing for Partridge to restore, and the plaintiff's recovery is only by way of damages. The doctrine of unjust enrichment is unnecessary, because there is already a remedy through well recognized principles of contract.

The discussion so far indicates a reason for agreeing with the learned author in his conclusion that the defendant Partridge is liable, but for disagreeing with his ratio decidendi. A discussion of the relations of the other defendants will perhaps make clearer the difference of view, although it should properly accompany the consideration of the next case.