Page:Harvard Law Review Volume 9.djvu/160

132 132 HARVARD LAW REVIEW. lord and tenant between them for two reasons : first, because the contract has nothing to do with real estate. This is shown by the exactly analogous case of an agreement for board and lodging with a designation of the particular rooms to be occupied. In such a case it was held that " the technical relation of landlord and tenant is not created between the parties. The lodger acquires no inter- est in the real estate. If he is turned out of the rooms before the time expires, he cannot maintain ejectment, and while he remains the hotel-keeper cannot get his pay by distraining as for rent in arears." Wilson v. Martin, i Denio, 602; White v. Maynard, iii Mass. 250.^ The second reason is found in the agreement on the part of the company, either expressed in the contract or impHed from the nature of the business, to guard the safe. This agree- ment fully establishes between the parties the relation of bailor and bailee, and it is this that is recognized by the courts as their legal relation. In the case of Roberts v. The Stuyvesant Safe-Deposit Company (123 N. Y. 57), where the point was specifically passed upon, this is distinctly stated by the court to be the relation between the par- ties. In defining the liability of the company under it, the court cites the case of Jones v. Morgan (90 N. Y. 4). The latter case very aptly illustrates the contract relations and liabilities of the company, from the fact that the nature of the contract upon which action was brought is so entirely similar to that of the one existing between a safe-deposit company and its depositors. It is interest- ing, therefore, to consider it in detail. The defendant owned a building in the city of New York. Under an agreement with the plaintiff, who desired to store for safe-keep- ing certain household furniture, a space was allotted to her in said building, and the defendant assured her that her goods would be safe and would be guarded day and night. The allotted space was enclosed by wooden partitions with a door, upon which were two locks, the key of one of which was kept by the plaintiff. Most of the property was stolen by those in charge of the building. In an action to recover damages, it was held that the contract between the plaintiff and the defendant was one of bailment; that the de- fendant was liable as warehouseman, and was bound to exercise 1 In the last particular, in the case of a safe-deposit company, the mode of procedure against the property of a depositor for arrears of rent is regulated in some States by statute. N. Y., L. 1875, c. 613, art. 15, as amend. 1886, c. 498; Mass., L. 1887, c. 89.