source: Caselaw Access Project

author: Robertson, Ch. J. McCunn, J. (dissenting.)

license: Public Domain

text:
    William T. Wilkins, plaintiff, vs. William P. Earle et al. defendants.
    1. The liability of an innkeeper, for all property of his guests brought into his inn, without his knowledge, and particularly without notice of their value or nature, cannot be unlimited. Per Robertson, Ch. J.
    2. It is such negligence, in a guest who brings to an inn, other or more articles, or of more value, than are necessary for traveling purposes, not to give notice thereof to the innkeeper, that it relieves the latter from all liability for them in case of loss.
    3. In the rooms of the defendants’ inn notices were posted, requiring “ all packages of value” to “ be properly labeled and deposited in an iron safe, kept in the office for that purpose.” The plaintiff, as guest at such inn, laid a sealed envelope, with his name in pencil thereon, which contained legal tender notes, bank bills, checks, &c. and other negotiable instruments, of’the value of $22,000, upon a counter in the office, and desired a clerk to put it in the safe. Upon such clerk asking what it was, the plaintiff answered, “ money,” without stating the amount. No receipt or check was given; the clerk informing the plaintiff that they gave no checks, but required the guests to describe their packages, before delivery. The clerk deposited the package in the safe, which he locked. It was stolen the same night from such safe.

      Held. 1. That the limitation, by the statute of 1855, “ regulating the liability of hotel keepers,” of the liability of innkeepers, for valuables in their inns, upon their providing a place of safe keeping for such valuables, and giving the notice it requires, did not change, in any respect, any other relation or duty of the parties to each other, affecting such liability.
    2. That the obligation of the guest to notify the innkeeper of the nature and extent of his charge, remains the same after as before the passage of that statute.
    3. That the defendants had a right, in the notice published by them, under the statute, to require valuables deposited in their safe to be “ properly labeled,” which included some such specification of the contents as would indicate their general nature and value.
    4. That the package, in this case, having no other mark upon it than the owner’s name in pencil, was not “ properly labeled,” as required by the notice; and that the plaintiff, in limiting his reply to the clerk’s question as to its contents, to the word “ money,” without stating any amount or value, did not disclose enough to induce any extra precaution, or charge, for taking care of it, and did not change the defendants into bailees, so as to make them responsible as such.
    5. That the defendants were not liable to the plaintiffs for the entire amount deposited in their safe, but only for the amount of money necessary to defray the plaintiff’s ordinary traveling expenses, (found by the jury to be $1000,) contained in such package. (McCunn, J. dissenting.)
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 25, 1865;
    decided June 27, 1865.

      This was an action against the defendants as innkeepers, in ' the city of New York, to recover a sum of money alleged to have been lost by the plaintiff at the inn of the defendants, he being at the time a guest therein. The complaint alleged that the plaintiff, on the 20th of April, 1863, was a guest in the defendants’ inn, and had in his possession money, promissory notes, &c. of the value of about #22,000, and that the said money, &c. being in the safe in the office of said inn, provided by the defendants for the safe keeping of money, &c. belonging to the guests thereof, where the same had been duly deposited for safe keeping, “ the said defendants and their servants, not regarding their duty as innkeepers as aforesaid, did not keep the said money and property safely, as they were bound by their duty as innkeepers to do, but on the contrary thereof, so negligently and carelessly behaved and conducted themselves in that behalf, that while the said plaintiff was such guest in the said inn,” &c. “ the said money and property were, by and through the negligence and default of the said defendants and their servants in that behalf, taken, &c. and thereby became wholly lost to the said plaintiff,” &c..
    The material allegations were put at issue by the answer.
    The action was tried before the honorable the chief justice, and a jury, in June, 1864.
    The following facts appeared in evidence : On the 20th of April, 1863, the plaintiff came to New York, and went to the defendants’ hotel, registered his name, and asked for a room. A room was assigned to him, in which was posted up a printed “ Notice to guests,” containing the following, among other things : “ Guests are also cautioned against leaving money or valuables in their rooms, as the proprietors will not be responsible for them. All packages of value should be properly labeled, and deposited in an iron safe, which is kept in the office for that purpose. Guests will please comply with the above requests, or the proprietors are relieved in case of loss from all responsibility, by the following law of this state,” which was followed by a printed copy of the act of 1855, “ to regulate the liability of hotel keepers.” "

      On the same evening, the plaintiff took the money and securities, alleged to have been lost, from an old and partially worn envelope, and placed it in a common buff envelope, went to the counter of the office, marked his name on it in pencil, and handed the package to a clerk in the office, named Howard, and asked him to put it in the safe. Howard asked what it-was. The plaintiff said it was “ money,” without stating the amount, or value. Howard then, in the plaintiff’s presence, procured the key of the safe, opened it, deposited the package, and locked the safe. The plaintiff asked him if he did not give checks. Howard replied that they did not; that a mistake had never occurred ; that they made the guests describe their packages-, before delivery. The plaintiff testified that one of the defendants was in the office at the time, and he thought Howard obtained the key from him. Early the next morning, before the defendants were up, Howard went to' the room of one of them, (W. P. Earle,) and asked him for the key of the safe, which was given to him. Shortly afterwards, when such defendant went down to his office, he found the safe locked, and that Howard had left, carrying away its key. which he subsequently sent back. The plaintiff’s package, and some others previously deposited in the same, were missing from such safe.
    The plaintiff, on the trial, proved the contents of the package, their value, and his ownership thereof, by his own' testimony. At the close of the plaintiff’s case, the defendants’ counsel moved to dismiss the complaint on the following grounds :
    I. That the statute regulating the liability of innkeepers did not enlarge, but rather limited it.
    II. That innkeepers were not liable for money only, where a guest had no baggage ; and in no case except for the necessary baggage of the guest, and such an amount of money as it was reasonable for him to have with him, having regard to the nature and extent of his journey, for his necessary and reasonable traveling expenses ; that the sum alleged to be lost was not for traveling expenses. The money for that purpose was in the plaintiff’s wallet, and no part of it was lost. Nor was any baggage lost, nor any thing which, as innkeepers, the defendants were bound to receive with the guest as such.
    III. That the loss was caused by the neglect of the plaintiff himself.
    IY. That the plaintiff should himself have deposited the . money in the safe.
    Y. That the plaintiff had not proved the delivery of his money to any person authorized to receive it, in the hotel of the defendants.
    The motion was denied, and the defendants' counsel excepted. At the close of the defendants’ testimony, they renewed their motion to dismiss the complaint on the same grounds as before urged ; and also on the following additional grounds :
    That the evidence proved that the plaintiff had not given notice to the party to whom he delivered the envelope at the hotel, that it contained a large amount of money; and the mode in which so large an amount of money was carried, simply being in a large letter envelope, with such notice, showed that the conduct of the plaintiff was disguised as to the nature of the valuable package, and was a fraud on the defendants, and the plaintiff could not recover.
    The court refused to dismiss the complaint; to which refusal the defendants’ counsel excepted.
    The jury found for the plaintiff $21,649.27, and responded to certain questions specifically submitted to them by the judge as follows :
    1. That the envelope and contents was forthwith, upon its delivery to a person in the defendants’ employment, deposited in "the safe provided by the defendants “ for the safe keeping of articles deposited by guests ” at their hotel; pursuant to the notice affixed by them in such hotel.
    2. That upon such delivery by the plaintiff, he did not abstain from communicating to the defendants, and the person so receiving the same, the nature and value of the contents of such envelope, with intent to conceal the same.
    3. That the person to whom the envelope, &c. was delivered, was actually authorized by the defendants to receive in their behalf, for deposit in the safe provided by them, pursuant to the notice, copies whereof were affixed throughout their hotel, articles of value received from guests for safe keeping.
    4. That $1000 was a reasonable sum of money for traveling expenses, for the plaintiff.
    The judge ordered the exceptions to be heard in the first instance at the general term.

      E. Pierrepont, for the plaintiff.
    I. All the questions of fact which could arise in the case, being found by the verdict of the jury in favor of the plaintiff, the court will not interfere with such finding.
    II. The principal proposition relied upon by the defendants appears to be that urged on the motion to dismiss the complaint, at the end of the plaintiff’s case, and when the testimony was closed, viz. that the statute of 1855 did not enlarge the liability of innkeepers, and that they were not liable for money only ; and in no case except for such an amount as was reasonable for the guest to have with him for his necessary and reasonable traveling expenses. The books do not show any case, so far as we can can find, where the courts have sustained this view. (1 Black. Com. 430. Calye’s case, 8 Coke, 38. 2 Kent’s Com. 593. Story’s Com. p. 306, § 470. Id. p. 309, § 473. Comyn’s Digest, action on case for negligence, B. 2. Edwards on Bailments, pp. 400, 403 and 407. Jones on Bailment, 94.) 1. “A delivery of the goods into the custody of the innkeeper is not necessary to charge him with them ; for although the guest doth not deliver them, or acquaint the innkeeper with them, still the latter is bound to pay for them, if they are stolen or carried away ; even although the persons who stole them of carried them away are unknown.” (Story’s Com. § 479. Also Bell’s Com. p. 496, 5 ed. And §§ 402, 403, 4th ed.) 2. An innkeeper will be liable for the loss of the money of his guest stolen from his room, as well as for his goods and chattels. (Story, supra, p. 314, §481. Also 3 Bacon’s Abridgment, 664, 666. Kent v. Shuckland, 2 Barn. & Ad. 803. 1 Smith’s Leading Cases, 309. Berkshire Woolen Co. v. Proctor,
      7 Cush. 417. Needles v. Howard, 1 E. D. Smith, 54.) In Kent v. Shuckland, which was an action against an innkeeper, to recover the value of a hag, containing • bank notes, lost by the plaintiff during the time he was a guest in defendants’ inn, his wife had left her reticule containing money, on her bed, and afterwards returned to the sitting room, leaving the door to the bed room adjoining open. Five minutes afterwards she sent her friend for it, and it was gone. The innkeeper claimed that he was not liable for lost money. Lord Tenterden, Oh. J. held that innkeepers were liable for loss of the money, as well as the goods of a guest, and that there was no distinction between money and goods. Parke and Taunton, JJ. concurred. Smith’s Leading Cases, (yol. 1, p. 309,) states the principle that “ the liability of an innkeeper extends not only to luggage and goods, but to money also, and has not been restricted to such things and such sums as are designed for the ordinary traveling expenses of the guests. (Lane v. Cotton, 12 Mod. R. 487, Holt, Ch. J. Richmond v. Smith, 8 Barn. & Cress. 9. Kemp v. Coughtry, 11 John. 107.) In Berkshire Woolen Co. v. Proctor, where the agent of the plaintiffs was robbed of money while a guest of the defendant, an innkeeper, it was held that the liability of innkeepers extended to all the movable goods and money, which are placed in the inn,-and not restricted to such things and sums only, as are necessary and designed for ordinary traveling expenses. In Needles v. Howard, it was held that the liability'of an innkeeper is not limited to wearing apparel, or such other articles as travelers are accustomed to carry as baggage, but extends to goods of the guest, where they have been received, and taken charge of according to the general usage and management of the establishment. 3. In Cole v. Goodwin, 19 Wend. 269,) Cowen, J. held that although ordinary bailees may make their own terms with their customers, it is not so with common carriers or innkeepers, and insisted that they, from their public employment, owe duties at common law, from which public policy demands they should not be discharged ; and that consequently they cannot limit their common law liability even by express agreement. 4. In Piper v. Manny, (21 Wend. 282,) Nelson, Ch. J. held that an innkeeper is responsible for the safe keeping of a load of goods belonging to a traveler who stops at the inn for the night, if the carriage containing the goods be deposited in a place designated by the servant of the inkeeper, although such place be an open unenclosed space near the public highway. That an innkeeper is an insurer of the safety of the property of the guest. (See also Grinnell v. Cook, 3 Hill, 485, Bronson, J. McDonald v. Edgerton, 5 Barb. 560. Bennet v. Mellor, 5 T. R. 273.) In Clute v. Wiggins, (14 John. 175,) it was held not necessary, in order to fix an innkeeper’s liability, that the goods should be delivered into his special keeping, or to prove negligence, as where a load of grain was put by a guest into an outhouse where such loads were usually received, and it was stolen. (See also Gile v. Libby, 36 Barb. 70.) In Quinton v. Courtney, (Hay. N. C. 41,) a traveler on alighting at an inn delivered his saddle bags containing $200 to a servant of the innkeeper, but did not inform either the servant or tavernkeeper that there was money in the bags. The bags and money were stolen, and the innkeeper was held liable. (See-also Dwight v. Brewster, 1 Pick. 50; Taylor v. Monnot, 4 Duer, 116; Stanton v. Leland, 4 E. D. Smith, 88; Van Wyck v. Howard, 12 How. Pr. 147.) In this case the landlord, by placing such a person in such a responsible position, and entrusting him with the key of the safe at such an hour, showed the grossest negligence.
    III. The liability having been thus defined under the common law, the statute of 1855 (Session Laws, chap. 421, p. 774,) merely enables innkeepers to limit their liability in respect to money and certain valuables in the absence on the part of the guest of the precautions prescribed by that act. But this law is an express and controlling recognition of their liability, where the provisions of the law have been complied with by the guest.
    1. The proof showed, and the jury found, the fact that the plaintiff complied with this law and requirement.

      2. The suggestion of the defendants’ counsel that the loss was caused in any degree by the plaintiff’s neglect, is untenable. There was no proof of negligence on his part.
    3. If there were no common law liability, the undertaking embraced in the printed notice to guests to take care of money, without limit as to amount, and without extra compensation, coupled with the obligation imposed by the statute which they specially applied to themselves, would create a perfect liability in this case.
    4. Neither the law nor the notice limits the amount for which they should be responsible. Their authorized agent inquired in regard to the contents of the packag.e as far as he chose, and was fully and truthfully answered-.

      W. F. Allen, for the defendants.
    I. The rule of liability was correctly laid down upon the trial. It is immaterial whether property of & guest within an inn, and for the safety of which the innkeeper is responsible, is stolen or lost by negligen'ce, or robbery, or in any way other than by the act of God, or the public enemies, or the neglect or default of the guest. The innkeeper is responsible for any loss or damage not coming within the exceptions mentioned. (McDonald v. Edgerton, 5 Barb. 560. Bennet v. Mellor, 5 T. R. 273. 2 Kent’s Com., 593, 594. Mason v. Thompson, 9 Pick. 280. Form of Writ, Fitz, N. B. 94.) The rule is as old as the custom by which innkeepers are obliged to receive and lodge travelers within their inns. It is said in Holingshed’s Chronicle that “ If he (the traveler) lose ought whilst he abideth in the inne, the host. is bound by generall custome to return the damage, so that there is no greater securitie anie where for travelers than in the greatest innes in England.” (Edwards on Bailment, App. p. 620.)
    II. This stringent rule of liability is analogous to that which regulates the liability of the common carrier, especially carriers of persons with their baggage. (Bee per Nelson J. in Orange County Bank v. Brown, 9 Wend. 114, 115.) The liability is created by law, and does not arise out of the contract of the parties. It is founded on reasons of public policy, and grows out of the character of the particular business and the relations existing between the parties. Although the reason originally assigned for making the innkeeper the insurer of the goods of a guest, and a carrier like insurer of the goods entrusted to him for transportation, may not be complimentary, the fitness of the rule is not now questioned, notwithstanding the character of the two classes of persons mentioned has "greatly improved. As to innkeepers, it was said that their “education and morals” were “none of the best,” and “they might have frequent opportunities of associating with ruffians and pilferers, while thé injured guest would seldom or never obtain legal proof of such combination, or even of their negligence.” (Jones on Bailm. 95, 96. Edwards on Bailm. 414.) A similar reason originated the rule as to the common carrier. (Jones on Bailm. 103. Law v. Colton, 1 Vin. Abr. 219.)
    III. This liability, in its stringency and in its extent, in the absence of any express contract.as it respects innkeepers, rests upon the nature of the occupation, the duty they owe to the public and to each individual traveler, the position and necessities of the traveler as a guest at the inn, his remedies for any violation of duty by the innkeeper, the reward or compensation received by the innkeeper, and the contract or obligation implied as resulting from these circumstances. (Edwards on Bailments, 403.)
    (1.) The occupation of the innkeeper is in the nature of a public employment. An inn is a place where the traveler is furnished with every thing for which he has occasion while on his way, and where all travelers are entitled to be entertained without first making a contract. So long as there is room, a traveler may claim to be received as a guest, as of right. (Thompson v. Lacy, 3 B. de Al.d 283. Bacon’s Abr. Inns, &c. C. 1.)
    (2.) The duties of the innkeeper to the public and to every traveler spring out of his occupation, and the nature of an inn as a place for the rest and refreshment of travelers while on their

      way. He is not compellable to receive any as guests but travelers. (Rex v. Luellin, 12 Mod. 445.) He is bound to receive all travelers who apply peaceably to be received as guests, so long as he has room. (Rex v. Ivens, 7 C. & P. 213. Bacon’s Abr. Inns, &c. C. 3. 1 C. & K. 404. Edwards on Bailm. 408.) He has no option to receive or reject guests. (Per Ld. Kenyon, 6 T. R. 17.) The extent of the obligation to the individual traveler received as a guest is to furnish him with reasonable and proper accommodations as a traveler. (Fell v. Knight, 8 M. & W. 276.)
    He is not bound to furnish a guest with any room, except such as is needed by a traveler, or any accommodations for other purposes, or to assume any responsibilities, except such as minister to the comfort or necessities of the guest as a traveler. He is not compellable to find a place or even allow goods to be exposed for sale within the inn, or to suffer a piano or other article not usually carried by travelers, to be brought into the house by a guest. (Burgess v. Clements, 4 M. & S. 306. Broadwood v. Granara, 10 Exch. 417. S. C. 24 L. J. Exch. 1.)
    He cannot impose terms or conditions on receiving a guest, nor can he exact unreasonable prices, or more than a just and fair compensation for whatever shall be furnished the guest. (Per Ld. Kenyon, 6 T. R. 17.) He is only entitled to a reasonable price for the victuals and lodging furnished. (Bacon’s Abr. Inns, &c. C. 1, 3.) His reward or compensation is solely for the lodging, victuals. &c. articles actually furnished to the guest, and his gain is the reasonable profit upon what is thus actually furnished.
    (3.) The rights and privileges of the traveler and guest are correlative to the duties and obligations of the innkeeper, and both, as fixed by law, are neccessarily co-extensive with the usual or ordinary necessities of the traveler. Inns are for the accommodation of travelers, who are obliged to rely on the good faith of innholders, and as guests, their goods are to a greater or less extent in the safe keeping of the host. (Edwards on Bailm. 403.) This necessity, of course, only extends to the necesary or convenient personal baggage of the traveler, including money for reasonable expenses.
    (4.) An innkeeper was from a very early period indictable for refusing to receive, a traveler as a guest, and now an action in the case lies at the suit of the traveler, as well. (Year Booh, 5th ed. 4, Easter T, pl. 20, and note by Haydon, J. See also Keilway Rep. 50; Dyer, 158, bl.; Rex v. Ivens, 7 C. & P. 213; Bacon’s Abr. Inns, &c. C. 3; Thompson v. Lacy, 3 B. & Ald. 283.)
    (5.) It follows that the obligation of the innkeeper in all its extent is to the guest as a traveler, and to care for and protect his goods which he has with him for his personal comfort and convenience as a traveler, This liability or obligation cannot be extended or enlarged without changing the relation and relative rights and duties of the parties.
    IY. The liability of the innkeeper, in the absence of a special contract, only extends to and embraces such articles as he is compellable by law to receive, and for not receiving which with the guest he would be indictable ; and such articles as, although belonging to a third party, the innkeeper would have a lien upon, for his bill. The law does not require him to become the depositary or insurer of money, beyond a reasonable sum for the expenses of the guest, or of goods, other than such as are with the guest as a part of his traveling outfit and necessaries. He is not bound to receive and care for merchandise, large sums of money, or valuable property, and cannot be charged with their safe keeping, except by his express consent.
    (1.) It. is unreasonable, that as the keeper of an inn for the entertainment of travelers, he should, without his consent, be charged with risks and hazards not necessarily incident to' his employment.
    (2.) Travelers, do not necessarily put at risk, upon the good faith of innkeepers, goods and money, other than such as are necessary to them as travelers. The transfer of their other property from place to place, or the deposit of it in such place as they may select, is at their own option and risk. If they deposit with an innkeeper property or money not carried and used as a part of their traveling conveniences, a bailment is created involving different liabilities, from those which the law imposes on innkeepers.
    ■ (3.) As the landlord cannot discriminate and refuse to receive guests offering, if these very great risks are to be assumed, it is but reasonable that he should be at liberty to exercise a discretion.
    (4.) The usual compensation or reward is entirely inadequate to the risks resulting from the employment, and does not have respect to such risk.
    In Broadwood v. Granara, (10 Exch. 417; S. C. 1 Jurist, N. S. 19; 24 L. J. Exch. 1,) which involved the question of lien of a landlord, it was held that so far as it concerned the property of a third person in the possession of a guest, it only extended to articles which an innkeeper was bound to receive. Parke, B. said: “ He (the innkeeper) is bound to take in those things with which a person ordinarily travelshe “is bound to receive all goods, which, by his public profession, he engages to receive ; but is he hound to take in articles of extraordinary bulk P” (See Pope v. Hall, 14 La. Ann. R. 324; McDaniels v. Robinson, 28 Vermont, 387; Pettigrew v. Barnum, 11 Maryland, 434; Martin v. Brown, 1 Cal. R. 225; Giles v. Fauntleroy, 13 Maryland, 126.)
    (5.) In an action by a guest against an innkeeper, to recover the value of property lost, the plaintiff was, at common law, a competent witness to prove the character and value of the property lost, but could only testify as to his personal baggage. If the innkeeper was liable beyond this, there was no reason for limiting his right to testify. (Tayler v. Monnot, 4 Duer, 116. See 1 Pars. on Cont. 629.)
    Y. The statute does not enlarge the liability of innkeepers. The chief justice so charged. (Laws of 1855, ch. 421. 3 Stat. at Large, 666.) On the contrary, it sustains the view before taken, as to the common law liability, as it only provides for a place of deposit of valuables which are ordinarily a part of the personal baggage of the traveler, money, jewels or ornaments. . The money, in connection with the other articles, undoubtedly was intended to include the money ordinarily carried by travelers, and to an amount reasonable for expenses. The act was intended for the relief of innkeepers, in view of the very strict liability which rested upon them, and undoubtedly embraces all property for which they are responsible as innkeepers at common law. (Kent v. Shuckard, 2 B. & A. 803.)
    VI. The liability of innkeepers, and common carriers of passengers, with their baggage, rests upon the same principles, is founded upon the same considerations of public policy, is compensated for by the same reward, and the extent of the liability of each is upon principle the same, and there is the same limit to each. The one has the custody of the goods and property, while and for the purpose of carrying the traveler, the other while and for the purpose of keeping him, and supplying his wants as a guest. It is well settled by authority that the liability of the carrier of persons, with their baggage, only extends to the personal baggage of the traveler, and the money reasonable and proper for his expenses. (Orange County Bank v. Brown, 9 Wend. 85. Pardee v. Drew, 25 id. 458. Hawkins v. Hoffman, 6 Hill, 586. Nordeneyer v. Loescher, 1 Hilt. 499. Bell v. Drew, 4 E. D. Smith, 59. Duffy v. Thompson, Id. 178. McCormick v. Hudson River R. R. Co., Id. 181. Richards v. Westcott, 2 Bosw. 589. Jordan v. Fall River R. R. Co., 5 Cush. 69.)
    VII. The law imposes no obligation upon innkeepers or carriers, except upon and for a compensation supposed to be adequate and reasonable. The ordinary gain or profit of keeping or carrying the traveler, is regarded as an adequate compensation for a risk, as insurers, to the amount and value of the usual and ordinary personal baggage of the traveler, and in both cases, if greater risk is to be assumed, it should be for a greater compensation, and should be voluntarily assumed. (Per Nelson, J., 9 Wend. 114, &c. and cases cited above.)

    VIII. The servant and agent of the defendants, without special authority, which is not claimed here, had no authority to enlarge the common law liability of the defendants, by contract or otherwise.
   Robertson, Ch. J.

The lability of keepers of inns for the property which travelers, who are guests therein, bring with them, is as old as the existence of inns in England. (Hollinshed’s Chronicle, cited in Edw. on Bailment, 620.) The whole doctrine in relation thereto is summarily stated in the recital of an ancient original writ, entered in the register of writs, (f. 105,) among writs of trespass, (on the case,) and set out at length in Fitzherbert’s Natura Brevium, (94, a. 5.) Such writ forms the groundwork of the early decision in Calye’s Case, (8 Rep. 328,) in which the general principles embraced in such doctrine are evolved from such writ; all of which have some bearing on this, case, and are, in substance, as follows :

1. The place of loss is required to be an inn, (commune hospitium,) which is defined to be a house where the traveler is furnished with every thing he has occasion for on the way,” (Thompson v. Lacy, 3 B. & A. 283;) the keeper of it not being bound to furnish any thing else, (Fell v. Knight, 8 M. & W. 276,) such as a place of sale for goods, (Burgess v. Clement, 4 M. & S. 306,) nor to receive any one but travelers, (Rex v. Luellin, 12 Mod. 445,) nor any thing, but what is usually brought with or carried by them, (Broadwood v. Granana, 10 Exch. 417; S. C. 24 Law J. Exch. 1.) Although he is liable to an action for not receiving them, (Com. Dig. action on the Case; Rex v. Iveus, 7 C. & P. 213; Bacon’s Abr. Inns, C. 3; Thompson v. Lacy, 3 B.& Ald. 283,) as well, apparently, as to an indictment, (Year Book, 5 Ed. IV. Easter T. pl. 10, by Hayden, J.; 1 C. & K. 404; Edw. on Bailm. 408;) he cannot make any terms or conditions with his guests. (Kirkman v. Shawcross, 6 T. R. 17, per Ld. Kenyon. Cole v. Goodwin, 19 Wend. 269, per Cowen, J.) A house becomes an inn by the mere custom of receiving persons transiently as guests, without a definite agreement as to time. (Wintermute v. Clarke, 5 Sandf. 242. Taylor v. Monnot, 4 Duer, 116.) But a mere restaurant, or place of eating, is not one, (Carpenter v. Taylor, 1 Hilt. 193.)

2. The guest must be a traveler. (1 Roll. Abr. 3 E. 4. 2 Brownl. 254. Rex v. Luellin, 12 Mod. 445. Ingallsbee v. Wood, 36 Barb. 452. Bacon’s Abr. Inns, C. 5. Parkhurst v. Foster, Salk. 383.) The time of his stopping is, however, immaterial, whether it he of some duration, or for mere refreshment. (Bennet v. Mellor, 5 T. R. 273. Carpenter v. Tyler, 1 Hilt. 193. McDonald v. Edgerton, 5 Barb. 560.)

3. The loss or injury for which the innkeeper is liable, is, that of, or to, goods and chattels, (5om ei catalla,) placed within the inclosure and shelter of the inn and its appurtenances, (infra hospitium,) as is laid down in the Tear Books. (11 Hen. IV. 45 a. 6. 22 Hen. VI. 216. 42 Eliz. 3, 11, a. b. 42 Ap. pl. 1.) Although animals put out to pasture at the guest’s request are not so, (1 Roll. Abr. 3, 4; 4 Leon. 6; 2 Brownl. 255; Hawley v. Smith, 25 Wend. 642,) yet vehicles left in the street by the innkeeper’s servant, (Jones v. Tyler, 1 Ad. & El. 522,) or a wagon load of goods in like manner placed in an uninclosed shed, (Piper v. Manny, 21 Wend. 282,) or a sleigh load of grain in an out house, where such articles were usually stored, (Clute v. Wiggins, 14 John. 175,) and goods placed in a “ commercial” room, (Richmond v. Smith, 8 B. & C. 9,) were held to be so.

4.. The person by whom the articles were taken, or the mode of loss, is immaterial, (Year Book, 22 Hen. VI. 38 pl 8; Roll. Abr. tit. Hostler, 7; Clute v. Wiggins, ubi sup.; Gile v. Libby, 36 Barb. 70; 2 Kent’s Com. 593; Story’s Com. 306, §§ 470, 479; Bell’s Com. 402-3, 4th ed. 496, 5th ed.; Edwds. on Bailm. 400, 403, 407; Jones on Bailm. 94;) unless such person were the servant or companion of the guest, (Cro. Eliz. 285; Burgess v. Clements, ubi sup.; Fowler v. Dorlon, 24 Barb. 384;) or the negligence of the guest contributed to the loss, (10 Eliz. Dyer, 266; Burgess v. Clements, ut ante; Farnsworth v. Parkwood, 1 Stark. 249.)

5. The amount or kind of goods for which, or the extent to which, an inkeeper is liable, is not well settled. The language of several elementary writers is quite broad enough to include every thing brought by a guest to an inn, whether known to the innkeeper or not, and whether necessary or usual for travelers to carry about with them or not; but that doctrine has been strongly and directly impugned in several cases. There can be no doubt that an innkeeper is liable for the loss of clothing, ornaments of the person, including a reasonable amount of jewelry worn by travelers, extending to a watch, gold pen and pencil case, (Giles v. Libby, ubi sup.) and enough money to pay traveling and other reasonable daily expenses of the guest. (Taylor v. Monnot, and Giles v. Libby, ubi sup. Vandyke v. Howard, 12 How. Pr. 147. Stanton v. Leland, 4 E. D. Smith, 85.) Beyond that point, no case appears to have gone, or at least none is reported, where property of sufficient value was involved to determine whether the guest of an innkeeper can make the inn of the latter such a depository of valuables, whether open or inclosed in packages, bulky or otherwise, and whether chattels or choses in action, with or without notice of their value, and to any amount, so as to render the innkeeper liable for their safe keeping. In Galye’s Case, (ubi sup.) it is said obiter that even documents relating to the title to land, and choses in action, were embraced among the articles for whose loss innkeepers were liable. Judge Story does not specify the extent of liability, which he describes in general terms. (Com. p. 306, § 470.) Chancellor Kent extends it to “ all the movable goods, chattels and moneys of his guest, which are within his inn.” (2 Com. 593.) In Kent v. Shuckard, (2 B. & Ad. 803,) the only question raised was whether the innkeeper was liable for money as well as other chattels ; the amount lost was said to be a sum kept to meet daily expenses, being only fifty pounds. In Quentin v. Oourtney, (Hay. N. C. 41,) the amount was only two hundred dollars, but it is overruled by Fowler v. Dorlon, hereinafter referred to, (24 Barb. 384.) In the case of the Berkshire Woollen Co. v. Proctor, (7 Cush. 417,) although the money lost was more than sufficient to defray the expenses of the particular guest in whose charge it was, it was in his possession to pay to other guests, or to defray their expenses at the same inn, they being witnesses in a lawsuit, the conducting of which was the cause of his staying at such inn, circumstances considerably dwelt upon in the opinion delivered in that case. In Purvis v. Coleman, (21 N. Y. Hep. 111,) the amount involved was two thousand dollars. In that case, it was held that the innkeeper was not liable, in consequence of the neglect of the guest to avail himself of the means provided for its safe keeping after notice thereof; nothing was said, however, except in general terms, of the liability, if there had been no notice. In the case of Gile v. Libby, (36 Barb. 74,) it was held that the statute of 1855, (ch. 421,) exempting proprietors of hotels from liability for the loss of money, jewels or ornaments, belonging to guests, providing a place for their safe keeping, and posting a notice thereof conspicuously in the room occupied by such guest, did not apply to ornaments, or money, usually carried about on the persons of such guests. But the amount of money (f 25) in that case was considered too small to be required to be deposited, and to be not too much for a prudent man to keep in his room, or on his person.

A great many cases have arisen, in which the extent of an innkeeper’s liability for goods lost at his inn has been indirectly involved ; thus it is conceded that he has a lien upon all the goods for whose safe keeping he is liable, (Grinnell v. Cook, 3 Hill, 485; Ingalsbee v. Wood, ubi sup.) including even those which are not the guest’s property, if brought by him to the inn, (Robinson v. Walter, Bulstr. Rep. 269; S. C. Poph. 127;) but it was decided in the case of Broadwood v. Granara, (10 Exch. 417, S. C. 1 Jurist, N. S. 19; 24 L. J. Exch. 1,) that because an innkeeper was not bound to receive a piano, he had no lien upon it. In that case, Park B. assented to a proposition of counsel, that an innkeeper is only compelled to take in such articles as both in nature and quality are reasonable for a traveler,” and added : “ He is bound to take in those things with which a person ordinary travels ; * * to receive all goods which by his public profession he engages to receive;” but he also asked the pertinent question, Is he bound to take in articles of extraordinary bulk ?”

As the liability of innkeepers rests on the same foundation, it ought to be subject to the same limitations as that of common carriers in the transportation of passengers and their baggage. (Orange County Bank v. Brown, 9 Wend. 85. Jones on Bailments, 103. Edw. on Bailments, 414.) It is true, that the definite name of “baggage ” or “luggage” has been given to that which a passenger is entitled to carry with him, and for whose safe delivery a carrier is responsible. In such cases, however, the passenger must part wholly with the possession of it, otherwise the carrier is not responsible. (Tower v. Utica and Schenectady R. R. Co., 7 Hill, 47. Cohen v. Frost, 2 Duer, 335.) Money, even for traveling expenses, has been held not to be part of such baggage (Orange Co. Bank v. Brown, 9 Wend. 85,) except in foreign travel, (Duffy v. Thompson, 4 E. D. Smith, 178,) when even tools of a trade, and a gun in a trunk are embraced therein. (Davis v. Cayuga and Susquehanna R. R. Co., 10 How. 330.) A watch and other articles of jewelry usually worn about the person, are included, if carried in a trunk, (McCormick v. Hudson R. R. Co., 4 E. B. Smith, 181,) otherwise, the rule is strictly construed, merchandize, (Pardee v. Drew, 25 Wend. 459,) or samples of it. (Hawkins v. Hoffman, 6 Hill, 586.) Boxes of jewelry for sale, (Richards v. Westcott, 2 Bosw. 589;) silver ware, (Bell v. Drew, 4 E. D. Smith, 59;) or presents for friends. Begalia or jewels of a society, (Nevins v. Bay State Steamboat Co., 4 Bosw. 225,) are not protected; although every thing destined for the personal use, convenience, instruction or amusement of the passenger on the way is said to be. (Hawkins v. Hoffman, ubi supra.) The only question in all such cases seems to be, what is baggage, or received by the carrier as such ? He is bound to know and take the risk of ordinary baggage; of any thing more than that he is entitled to notice, when he undertakes its care, carriage and safe .delivery. Acceptance of a trunk as baggage, containing what is not for personal use, does not bind him, without knowledge of such contents. (Richards v. Westcott, ubi supra.) In all such cases, however, no additional compensation is paid for transporting baggage, beyond that paid for the conveyance of the passenger; it being considered a sufficient consideration for insuring the safe delivery of the baggage also, (Powell v. Myers, 26 Wend. 591.) So for insuring the safe keeping of the goods of a guest in an inn, no other compensation is given or required generally, than according to the cost of lodging and feeding him. It is true that a common carrier, entrusted with merchandize to transport, is liable for its loss, whatever its value may be, when his vigilance has not been lulled to sleep by undue concealment of such value, (Batson v. Donovan, 4 B. & A. 21; Miles v. Cattle, 6 Bing. 743;) but the duty of an innkeeper in regard to guests and their property evidently more nearly resembles that of carriers of passengers and their baggage, than it does that of carriers of freight. In both cases the owner must accompany his property, in order to create an absolute liability in the party receiving it; an additional charge for the care of such property is rarely made in either case ; and neither carrier nor innkeeper is bound to receive as an appurtenance of the owner, what is not necessary or useful for his traveling purposes. (Oases already cited, and Broadwood v. Granara, ubi supra.) In neither case is inquiry ever made, or information given, of the contents and their value, of portable receptacles of property, carried by travelers. It is assumed, in both, that they carry only the customary quantity, and of the usual kind and value used in travelling. The only charge to be made is for the transportation of the passengers in the one case, and the accommodations furnished, articles consumed and services rendered, in the other. The rule of; liability in both cases should therefore be the same. Such liability, it is true, may be enlarged by .the acts or agreement of the parties, in some cases ; but it does not affect the general question. (As to baggage, see Berley v. Newton, 10 How. Pr. 490; as to parcels at an inn, Needles v. Howard, 1 E. D. Smith, 54.)

Some writers have gone so far as to lay down the rule as to the liability of an innkeeper as not only extending to all the property brought by the guest to such inn, but as being independent of any knowledge on the part of the former of its presence there. (2 Kent’s Com. 593. Story’s Com. § 479. Bell’s Com. 5th ed. 496.) Nor do they qualify it hy any limitation as to the disclosure by the external appearance of such property of its character and value. This, if carried out, would make an innkeeper liable for the largest amount of property which a guest could bring into his inn, unobserved and without notice of its value. Such a result would be, not only in the highest degree unjust, but also wholly unsupported by the sole principle arising out of the relations of the parties, on which any liability rests ; namely, the public duty to receive as guests, and entertain, travelers. The innkeeper, who has a right to refuse to take in a piano, as not a usual accompaniment of a traveler, should equally, at least, be at liberty to refuse to become liable for millions of value contained in a small and easily overlooked parcel, giving by its appearance no notice of its value; otherwise far greater fraud might be perpetrated to his injury, especially where travelers may be witnesses on their own behalf, than any losses could be inflicted on guests by robberies ; the latter having in their hands the means of regulating such exposure to loss.

There must, therefore, be some limitation of the liability of an innkeeper for property of his guests brought into bis inn, without his knowledge, and particularly without notice of their value or nature. Such knowledge and notice is absolutely necessary to enable him to take necessary precautions for the security of such property, unusual to travelers, and fix, if necessary, the graduated rate of compensation for its safe keeping. If entitled to exclude such articles, at least as a subject of responsibility, because not usually carried by travelers, he is entitled to ask extra compensation for admitting and becoming responsible for them. Even on the supposition that a traveler is entitled to carry with him any amount of capital or articles of value, and compel an innkeeper to receive and become liable for their safe keeping, the latter, although deprived of all compensation for the risk run, may still be protected by another principle, namely, that it is such negligence in a guest, who brings other or more articles or of more value into an inn than are necessary for traveling purposes, not to give notice to the innkeeper thereof, that it relieves the latter from all liability. (Pettigrew v. Barnum, 11 Maryland R. 434. Giles v. Fauntleroy, 13 id. 126. Martin v. Brown, 1 Cal. R. 225. Fowler v. Dorlon, 24 Barb. 384.)

The limitation of the right of travelers to testify in their own behalf as to articles of property lost by them in an inn, before parties were allowed to be witnesses generally in their own favor, considering the ground upon which such privilege was placed, establishes fully the understanding of courts, as to the character of the goods, for which innkeepers are liable, and the extent of their liability. The sole ground was the necessity of the case, because nobody but the traveler would be likely to know what was in his trunks. (Taylor v. Monnot, ubi sub.) That rule would equally well apply to all small packages, containing articles of great value, which were easily carried about on the person, and did not invite the attention of any one. If such limit of liability had not been merely coextensive with the former limit of such privilege of testifying, the enlargement by the Code of the latter right would be productive of wholly unexpected and alarming consequences; while the limitation of an innkeeper’s liability in the absence of positive notice to him, to articles necessary and useful to a traveler, would avoid all such difficulty.

The negligence of a guest, who fails to disclose to the servant of an innkeeper the presence of a sum of money in a valise given to him or his servant to take care of, as in Fowler v. Dorlon, becomes insignificant by comparison with that of one who, having a large amount of securities in his possession in an inn, or of money wherewith to carry on business, desires the services of an. innkeeper in keeping such property safely, or to-insure his liability therefor, if he fails therein but wholly omits to notify him of its character and value. Without reference to any deposit of the property in question in'this case in a safe, the plaintiff would have plainly been wanting in ordinary prudence and fair dealing to have allowed it to remain any where within such hotel, without some notice to the defendants of its character and value, in order to ensure extra vigilance.

The notice posted in the plaintiffs’ room, which referred to the statute of 1855, states, among other things, as follows: “ All packages of value should be properly labeled, and deposited in an iron safe, which is kept in the office for that purpose.” The plaintiff testified,- in substance, that he laid a sealed envelope, marked with his name in black lead pencil, containing the valuables in question, upon a counter in the office of the hotel of the defendants ; and asked a clerk there to put it in such safe, Such clerk upon taking it up, asked what it was ?” the plaintiff answered briefly, “ money.” Upon some inquiry by the plaintiff in regard to a receipt, or check, for such property, such clerk informed him “ that they made the guests describe the package before delivery.” The finding of the jury upon the second special question of fact • submitted to them, undoubtedly expressly negatives any intentional concealment by the plaintiff of the contents of such envelope. The only question therefore is, whether the plaintiff absolved himself entirely from the charge of negligence in law, by the communications he made to the clerk. It is very plain he would not by the mere silent delivery of such package to such clerk to be taken charge of, without some mark on it, describing its contents, and indicative of the ownership of such articles and their value, (Fowler v. Dorlon, 24 Barb. 384,) or if he sought to avail himself of the means provided for their safe keeping, (Purvis v. Coleman, ubi sup.; S. C. 1 Bosw. 322,) and that too without regard to the statute of 1855, if any of the principles already referred to are to be adopted in order to prevent the rule as to an innkeeper’s liability from acting with the greatest harshness and producing the grossest oppression.

Surely, without an innkeeper’s assent, express or implied, no traveler or guest could make an inn a place of deposit for an indefinite time, of the capital with which he proposes to carry on business, so as to make the innkeeper liable for its safe keeping, since he cannot, even when the' latter assents to his making it a place of sale for his goods, impose the like liability upon the innkeeper for the care of such goods. (Burgess v. Clements, 4 M. & S. 306.) The latter is entitled to know for what, beyond those things with which a person ordinarily travels, “ which it is part of his public business ” to receive, as expressed by Baron Parke, in Broadwood v. Granara, he is to become liable ; otherwise he should be exempted from liability therefor. (Pope v. Hall, 14 La. Ann. R. 324. McDaniels v. Robinson, 28 Verm. 378.) He does not become liable by their being deposited in the safe, any more than by delivering a valise containing money to be taken care of by a servant, as in Fowler v. Dorlon, (ubi sup.;) if any notice be given. The plaintiff's name on the package gave no information to affect the defendant's conduct, except as to the ownership of the party depositing.

The limitation, by the statute of 1855, of the liability of innkeepers providing a place of safe keeping for valuables, and giving the notice it required, to valuables deposited therein, did not change in any degree any other relation or duty of the parties to each other, affecting such liability. The duty 'of the guest to notify the innkeeper of the extent of his charge still remains, where it existed before the passage of such statute. Even before that time, an innkeeper to whom property had been delivered personally for safe keeping, in order to assume any responsibility beyond that of an ordinary gratuitous bailee, would have been entitled to such notice. At all events, they had a right to insert in the notice published by them, under such statute, a requisition to that effect; which the defendants did by requiring valuables deposited to be “properly labeledwhich certainly includes some specification of the contents, or statement of their general nature and value. In this case that was not done! A mere name in pencil was not a proper label, in reference to the object of labeling, particularly having reference to the statement of the clerk, that the package was required to be delivered when called for. Perhaps an actual verbal notice to the same effect would have had the same effect; but such clerk would clearly, under his mere general employment to receive and deposit packages, not be entitled to dispense with so important a condition, as that specified in the printed notice. Moreover, such package in this case not being properly labeled, the clerk naturally asked what it was ? That presented a fitting occasion to disclose the contents specifically, or their general nature and value; but the plaintiff only replied briefly “money.” That might be sufficient to induce such clerk to put such package in the safe, but certainly did not disclose enough to have induced any extra precaution or charge for taking care of it. The subsequent information of the rule of the defendants as to requiring a description of packages, should have called the plaintiff’s attention again to the propriety of more fully marking it, for identity and ability to prove property. But the whole conduct of the plaintiff, including his unusual mode of- carrying the property, the time and place chosen for changing the envelope, .which was an ordinary one, its sealing up with no external mark on it, but his name in pencil, and his curt reply to the question what it was, seem to indicate rather secretiveness and a reluctance to disclose the possession of property of so much value, particularly as some of it was bank bills which could easily have been passed away. Such acts were deficient in-candor towards the defendants, whom he selected, instead of the vaults of a bank, to receive a special deposit of his money and valuables. The failure by the plaintiff to secure the liability of the defendants is fairly attributable to such extra caution, which fell short of the frankness required by the law. Possibly he might have lost such package,, even if he had fully disclosed its contents ; although if .it had been “properly labeled,” the attention of the defendants, who put other packages in the same place, the same evening, might have been called to it. But we are not at liberty to speculate on possibilities. If the person charged therewith stole such package, he might have done the same thing in the plaintiff’s room ; the mere depositing it in a safe, may have furnished greater temptation and facilities, but could not charge the defendants, as insurers of its safety, without a proper notice. The plaintiff, by not giving the proper information, must he presumed to have relied rather on the honesty of the clerk and the security of the safe in which he watched to see it placed, than any liability by the defendants, if that were to be accompanied by a full disclosure of the contents to them or their clerk.

I have come, therefore, to the conclusion that the defend- . ants were only liable for the amount of money necessary for traveling expenses contained in such package, which the jury have assessed ; by which finding the general verdict must be controlled ; and the exceptions as to which verdict, beyond that sum, must be sustained.

The other exceptions to evidence are untenable, and must be overruled, and judgment must be rendered for the plaintiff for 11000, the sum found by the jury.

G-akvin, J. concurred.

McCunn, J. (dissenting.)

I confess to having considered this case anxiously, and I may say with more than ordinary attention and research, for the reason that the chief justice seriously changed his views from those taken by him on the trial: and also from having great reluctance in putting forward my views in opposition to two of the learned justices of this court. Yet I have been unable to bring my mind to the same conclusions as those promulgated in the opinion of the court in this case, at general term.

There is but one important question in this case, and that question is whether Mr. Earle, as innkeeper, is liable under the circumstances for the large amount of money deposited with him by the plaintiff ?

[The learned judge then went into an elaborate and minute examination in detail of the facts in the case, which as they appear in the statement of facts, at the head of this case, need not be recapitulated.]

He then proceeded as follows : These are the facts ; and the simple and only question in the case is, whether under the circumstances the defendant is liable in law, as innkeeper, to the plaintiff for the entire amount of $20,000 deposited in his safe, or only for enough to cover traveling expenses, to wit, $1000. I am clearly of opinion that he is liable to the plaintiff to the full extent of $20,000, with interest,, and my conclusions to that effect have been strengthened and confirmed by the fact that all the cases in the English and American books, for nearly the last three hundred years, go beyond a doubt to establish the fact of his entire liability ; for not one solitary case can be found sustaining the theory of a limited responsibility.

Indeed the learned chief justice admits that all the cases cited in his opinion go to show that to a certain extent innkeepers are liable, but says we are at sea about the extent of the liability, and cites a number of cases, all of which, I am compelled to say, are unlike the one at bar. According to my understanding of these cases, the innkeeper is clearly liable. While the chief justice maintains that none of those cases fix or limit the extent of the liability, I think they all fix the liability to any amount the traveler may have with him in the inn.

It is a well established principle that in the amount charged for the keep and board of the traveler the innkeeper receives the consideration for the safe keeping of his guest, his goods and bis money. (2 Kent’s Com. 758, 7th ed. Lane v. Cotton, 12 Mod. 483, 487. The Berkshire Woolen Company v. Proctor, 7 Cush. 417. Mason v. Thompson, 12 Pick. 280. Bennet v. Mellor, 5 Term. R. 273.) And this principle runs through all the cases to the present time.

The common law fixes an implied contract between the innkeeper and his guest. The innkeeper is to entertain and keep safely the guest, his money and his goods. The traveler, in consideration thereof, is bound to pay the price demanded for such entertainment and the safe keeping of him, while his money and goods received at the inn are by law pledged to the innkeeper for the fulfillment of his part of the contract. It cannot therefore be said that there is no consideration passing from the traveler to his host for the risk of liability incurred by the latter.

This has been an undisputed principle of law for hundreds, of years past. The first question that now arises is, does the statute of 1855 change this principle ? The act simply says there is to be a safe in every inn, under the absolute, especial and immediate control of the innkeeper, his agents and servants, and unless the guest, after notice thereof, deposits his money in that safe, the innkeeper is, not responsible. And the opposite rule of law is just as clear, that if the guest does deposit his money, in that safe, the innkeeper is certainly liable to protect him against the theft of himself or servants. Any other rule of law would place the traveler at the mercy of a dishonest innkeeper and his dishonest servants, without a remedy. And public policy demands the inflexible enforcement of such a rule of law, although occasionally it may work harshly. It must be conceded that before the law of 1855 was enacted, if a guest came to an inn, and took • with him to his room $20,000, and the innkeeper’s servants or agents broke in and robbed the guest, the innkeeper was liable. And surely if the law of 1855 compels the guest to place that money under the absolute and immediate control of the innkeeper or his dishonest servants, he is doubly responsible, because if this trap of a safe had not been there the traveler would have guarded and protected his money in his own room. The act undoubtedly was designed to relieve the innkeeper from responsibility where the guest was robbed of his money or ■ goods while they were in the room.

I therefore hold that where the guest complies with the law of 1855, as in this case/the innkeeper should be held to a more strict accountability than he was before the law was passed. This being so, it is quite clear that the same principle that would make him liable for $10, would make him liable for $10,000. If this were not the rule, how absurd it would be to compel a traveler, under the act of 1855, to hand an innkeeper $20,000, for safe keeping, and have the innkeeper •acknowledge next morning I received that amount from him, and state that he put it in his safe, hut it was lost through his negligence, and we would only give him $1000 in place of the $20,000. That is precisely this case.

The common law creates the contract between the traveler and his host. The statute of 1855 defines more clearly the duties of the parties, and if the guest neglects to comply with his part of the statute by placing his money in the safe, and it is stolen, it is his. loss alone. But if the innkeeper assumes the risk by taking the money into his safe keeping, his liablity to such guest becomes positive and certain, and the consideration is the large sum demanded for keeping the guest, together, with the lien the innkeeper has on such money and goods until such keep is paid.

It is contended in the prevailing opinion of the court that. it would be unjust for a traveler to bring in any amount of money or valables to an inn, and without notice make the innkeeper liable therefor. The simple answer to that proposition is this : That this is not a case of that kind ; here the innkeeper had the money placed in his safe keeping, and had sufficient notice of the contents of the package—such a notice as satisfied him—and he thereupon entered into the obligation of taking care of the money in consideration of the guest’s stopping at his inn; and the common law says the defendant shall be responsible for the loss, especially if that loss takes place from the negligence of servants of the defendant. If this rule was not the proper one, easily an innkeeper could conspire with his servants and rob his guests ; whereas. the innkeeper at all times has a perfect security against his guests by simply asking the guest what the contents of his package are, and if he finds it too large, by refusing to receive it.

The guest, however, has no such safeguard against the dishonesty of innkeepers and their servants, if this grand old common law rule is to be abolished.

As to the question of notice, I hold that it is not necessary at common law that the guest should notify the innkeeper of the amount .of money. The question of negligence cannot come up, for the innkeeper is liable without reference to any degree of care or negligence on his part. Chancellor Kent holds that it is not necessary to prove negligence in an innkeeper. The innkeeper is liable as an insurer of the property and moneys of his guest; and this liability is founded on principles of public utility, to which all private considerations ought to yield. (Kent’s Com. 760, 7th ed. and cases there cited.) It is therefore, at common law, unnecessary that the guest should notify the innkeeper of the particular amount of property or money left with him; and it is no argument against the innkeeper’s liability to say that if the guest had notified him of the particular amount of money he was leaving with him, in such a case the innkeeper would have exercised greater care, as the innkeeper is liable without reference to any degree of care or negligence on his part.

The statute of 1855 requires that a safe must be kept in which a guest may deposit his money. This increases public confidence and security to guests, and it must be presumed, therefore, that the legislature intended that guests would be influenced by this increased confidence, and avail themselves of the additional security. It cannot be justly said that any sum per diem received from the guest is not compensation adequate to the risk; because, if not adequate, they could make the contract with the guest for a larger consideration. By analogy to insurance companies, who take large risks for very small premiums, yet frequently sustain enormous losses, it may be said that the consideration of $3 per day is large.

But to return to the question of notice on the part of the guest. The learned chief justice, in his able opinion, denies the sufficiency of the notice given by the plaintiff to the defendants, of the contents of the package, when it was intrusted to the defendant for deposit in his safe, and says that “A notice, to be sufficient to release the plaintiff from the imputation of negligence, should be not only of the kind of property, but its , value.” When the package, containing the money was handed to the defendant’s agent, at the office, to be deposited in the safe, the defendant, by his agent, asked the plaintiff “ what it contained ?” The plaintiff answered “ money.” This description and notice were then satisfactory to the defendants. They asked for no other, but with that description took charge of the money.” I think they should now be estopped from saying the notice was not sufficient. The contrary doctrine would lead to great frauds.

If the notice was insufficient, and was not a satisfactory compliance with the statute, on the part of the plaintiff, and did “ impute negligence to the plaintiff,” then, I am unable to see on what theory the plaintiff could recover any thing at all. I am unable to see why the notice should be insufficient to allow the plaintiff to recover all the money received by the defendant on the notice, but sufficient to allow him to recover a part. If the notice was insufficient, under the statute, (and if the question of notice is in any way controlling,) then the plaintiff should not have recovered any thing; but it being conceded that he should recover at least one thousand dollars, and costs, I think, from that concession alone, it follows he should recover the whole of his loss. I am clear, that the notice to the defendants of the contents of the packages intrusted to, and re-received by them, was, under the circumstances of this case, sufficient.

It has been urged, by the counsel for the defense, and a conclusion to that effect has been drawn in the leading opinion of the court, that the case is analogous to that of the common carrier. I do not entertain any such conclusion in respect to similarity.

Formerly, it was held that a carrier of passsengers was not answerable for baggage at all, unless a distinct price was paid for it. This never was the rule with innkeepers, and the reasoning both of the statute and common law by which the doctrine of the liability of innkeepers, without proof of fraud or negligence is maintained, is that travelers are obliged to rely almost entirely on the good faith of innkeepers ; that it would be almost impossible for the former, in any case, to make out any proof of fraud or negligence in the latter ; and that, therefore, the public good and the safety of our large traveling community requires that innkeepers should be held entirely responsible for the safe keeping of the goods of guests. And the same reasoning would make them alike responsible for money. Another reason why common carriers are sometimes excused for the loss of large sums of money when packed in trunks, and so lost, is, that it is not presumed that a traveler would carry large sums of money in trunks with his clothing, but would rather be presumed to carry such large and valuable sums of money about his person while traveling, which latter presumption ceases when the traveler arrives at an inn, where the law provides a place of safety for such money, and where the innkeeper is held liable for any loss arising through his neglect.

This much have I reasoned why this defendant should be held responsible for the loss of the money. Now let us examine the decisions, from the time of the earliest cases to the present on the subject.

One of the earliest decisions we find reported is that of Calye’s case, tried in the Queen’s Bench, during the reign of Elizabeth, (8 Coke, 33,) and there it is clearly enunciated as law that the “ innkeeper is responsible if the guest is robbed in his house and I find on a careful examination of the English authorities, that such is held to be the invariable rule of law in the courts of that country, to this. day. In the case of Kent v. Shuckard, (2 Barn. & Adolp. 803,) Lord Tenterden held, (all the other judges concurring,) that innkeepers were liable for all moneys as well as goods of a guest, and that there was no distinction between money and goods. In the case of Coggs v. Bernard, (1 Smith’s Leading Cases, 309,) it is expressly held that the innkeeper’s liability is not restricted to such sums as are required for traveling expenses ; and the same rule was held by Holt, Ch. J. in the case of Lane v. Cotton, 12 Mod. 487.) The very learned and able Judge Gowen, in the case of Cole v. Goodwin, (19 Wend. 251,) holds a similar doctrine. So that it cannot be said that we are at sea, as to the extent of the liability of innkeepers. Since these-leading cases, both English and American, adjudicated upon by the most learned of men, all fix the liability of the innkeeper to any sum of money the traveler may have within his possession and entrusted to the innkeeper in the manner before specified.

Indeed, in the case of Piper v. Manny, (21 Wend. 282,) Chief Justice Nelson carried this doctrine so far as to hold that an innkeeper was liable for the safe keeping of a load of goods belonging to a traveler, who stops at an inn, even if the servant of the inn designates an open space near the highway for the goods to be placed in.

In the case of Ivanson v. Havre de Grace Bank, (6 Har. & John. 47, 63,) the court; after stating the position, that if A. sends his money by his friend, who is robbed at the inn at which he is a guest, the court say A. shall have the right of action. Now certainly this money of a friend was not for traveling expenses ; it was simply a part' of the money and goods of the guest, whom the innkeeper had undertaken to entertain as his guest, arid around whom the great common law of our land throws its ample protection against the frauds of innkeepers. And this safe doctrine is also promulgated in the case of Mason v. Thompson, (9 Pick. 280.)

The case of Bennet v. Mellor, herein cited, is a case where a guest left a sleigh load of wheat in an outer house belonging to the inn ; the wheat was stolen, and the innkeeper was held liable. Certainly the wheat was not traveling expenses. And the like rule was held in the case of Hallenbake v. Fish, (8 Wend. 547,) where the innkeeper was held responsible for the loss of a set of harness placed in a barn by the innkeeper’s man ; and in the case of Jones v. Tyler, (1 Ad. & Ellis, 522,) the innkeeper was held responsible for a gig that was placed in front of the inn, on the common highway. Mr. Justice Fletcher remarks, that the principle contended for, that innkeepers are liable for such sums only as are necessary, and designed for traveling expenses, by the guest, is unsupported by any authority whatever, and is wholly inconsistent with the principle upon which the liability of innkeepers rest. And the same rule was held good by Chief Justice Bronson, in the case of Grinne v. Cook, (3 Hill, 485,) and reiterated in the case of Macdonald v. Edgerton, (5 Barb. 560,) and Bennett v. Mel lon, (5 Term Rep. 273.) And this safe doctrine was re-enunciated in the late case of Gile v. Libby, (36 Barb. 70.) In the case of the Woollen Company v. Proctor, (7 Cushing, 417,) where an agent of the company was robbed at the inn of a large amount of money, belonging to the company, it was held that a recovery was not limited to traveling expenses. And certainly the case at bar is a much stronger case in favor of the plaintiff than the one last cited ; ■ for there the agent was robbed by some outside party of money not his own ; but here the plaintiff was robbed of his own money, by one of the servants of the innkeeper. In North Carolina it was held, in the case of Trenton 'Y. Say, that where a traveler alighted at an inn, and delivered his saddle hags, containing a large amount of money to a servant, hut did riot inform the innkeeper that there was money in the hags, and the money was stolen, the tavern keeper was liable. See also the case of Dwight v. Brewster, (1 Pick. 50;) and Taylor v. Monnot, (4 Duer, 116,) where a similar doctrine is maintained. And Justice Story lays down as an elementary principle, a doctrine that completely meets this case. He says at chapter six, section 481, page 456, of his Commentaries: “ So the innkeeper will be liable for the loss of the money of his guest stolen from his room, as well as for his goods and chattels ; and that this liability extends to all the movable goods and money of the guest, placed within the inn, and is not confined to such articles and sums only as are necessary and designed for ordinary traveling expenses of the guest.”

But why enumerate cases P The doctrine is as old as our common law. Indeed, to hold a contrary rule, without authority or precedent, is to cast loose from the safe moorings of the old common law, rendered dear to us by the adjudications of the most learned men of the bench for centuries past, both in the old and new worlds. And I am satisfied that a contrary doctrine would he terrible in its effects in this gréat .commercial community of ours, where our business men necessarily spend a large portion of their time at inns, in the pursuit of their calling.

This much I have said on the clearly adjudicated cases. Now let us see what the ablest elementary writers say on the subject; and for that purpose, I shall only cite a few of the most eminent of English and American writers. Sir William Blackstone, from whom every student draws the true maxims of sound law, says, (Black. Com. 430,) “If an innkeeper’s servant robs his guest, the master is bound to restitution; for as there is confidence reposed in him, that he will provide honest servants, his negligence, is an implied consent to the robbery.” This elementary principle completely covers the case under consideration.

Our great commentator, Chancellor Kent, in speaking of the liabilitity of innkeepers, lays down this clear and undisputed principle, that the innkeeper is bound absolutely to keep safe the property of 'his guest deposited within .the inn, whether the guest acquaints the innkeeper that the goods were there or not. Moreover, he says the responsibility of the innkeeper extends to all his servants, and to all goods and chattels, and all moneys of the guest placed within the inn ; and he adds, that the safe custody of the goods and money of the guest, is a part of the contract to feed and lodge for a suitable reward; and that it is not necessary to prove negligence in the innkeeper; for, says he, it is his duty to provide honest servants.” What can be plainer than this; and what can be more in consonance with common sense, as well as clear common law ? I am satisfied this doctrine will put to silence the theory that there is no consideration for the extra risk entered into by the innkeeper, for keeping the money. The consideration is the enormous charge of the innkeeper for the entertaining-and caring for his guest.

To the lawyer and scholar the names of Sir William Blackstone and Sir William Jones, on the one side of the ocean, and Chancellor Kent and Justice Story on this, will be sufficient for my purpose in this case, until some author, or some case is cited, showing clearly that a contrary doctrine should obtain. It must follow, therefore, and I am satisfied from all my research, that the rule of law that the innkeeper is responsible for all moneys deposited, with, him is the correct and standard rule. This is not the first instance in which this vague question of traveling expenses has been interposed by innkeepers and urged by their counsel, in order to avoid responsibility; but it has always been repelled, and it will be seen that in many of the cases I have cited, the question has been treated and disposed of by a flat denial of such a dangerous doctrine.

The rights of parties, and such important rights as these under consideration, affecting, as they do, in their results our whole traveling community, must be determined by sound law, handed down to us by the most eminent men, and not by any vague undeterminate and partial usage or dicta of persons or places. A strict adherence to this principle is particularly essential at this day to a sound and consistent administration of justice; and a departure from such a course works great injustice ; for no man could know what were his rights or his duties, unless they are clearly defined by the precedents of the earlier times, declared by those great living lights and champions of just and wholesome law.

The judgment should be affirmed, with costs.

Judgment for the plaintiff, on the verdict and special findings, for one thousand dollars and costs.


author: By the Court, Barbour, J. Monell, J. (dissenting.)

text:
    The Congregation Shaaer Hashmoin, plaintiff and respondent, vs. William Halliday, defendant and appellant.
    1. Upon an agreement to sell and convey a certain piece of land, “ to be occupied for a Jewish synagogue,” the grantees are not obliged to accept aideed which binds them by a covenant running with the land, to occupy the premises for a synagogue exclusively, so as to render themselves liable in an action, for damages, in case such covenant should be broken; but are entitled to a deed in which the provision touching such use of the premises is incorporated as a condition merely.
    2. The drawing of a deed containing a covenant, instead of a mere declaration or condition, by the grantees, and their request to the grantor to execute it, is not a waiver of their rights, nor will it estop them from demanding such a conveyance as was called for by the contract, upon bis refusal to execute the deed tendered.
    3. Where, upon a mutual contract, by which payment of the purchase money, and conveyance of the premises, are to be simultaneous, if no absolute and unconditional offer to pay, or to pay upon the execution of the deed described in the agreement, appears to have been made by the purchasers, they cannot recover back a deposit, part of the purchase money.
    (Before Barbour, Monell and McCunn, JJ.)
    Heard November , 1865;
    decided December 30, 1865.
    This action was brought to recover $1000, received by the defendant from the plaintiffs, upon the making of a contract between them, whereby the former agreed to sell to the latter a certain lot of land, “tobe occupied for a Jewish synagogue,” and to convey the same to them on the first of May then next, and the former undertook to pay therefor one thousand.dollars, at the time of the making of the contract; and the further sum of seven thousand dollars on the first of May then next, when the said deed should be delivered, and simultaneously therewith. The payment of $1000 was made by the plaintiff, when the contract was executed; and this action was brought to recover the same, upon the allegation contained in the complaint, (but put in issue by the answer,) that the defendant failed and refused to execute such deed, although the plaintiffs duly requested him to do so, and at the same time offered, and were ready, to perform such contract on their part.
    The plaintiff had a judgment for the amount of the deposit, and interest, from which the defendant appealed.

      John C. Dimmick, for the appellant.
    I. The plaintiffs, to recover, must show that the defendant refused to execute such a deed as the contract called for ; this, the defendant submits, has not been shown, and the defendant insists that the judge erred in finding as a fact that the defendant refused to deliver any other deed than the one tendered.
    II. The plaintiffs not having tendered for execution such a deed as the defendant was bound to execute, and the defendant not having refused to execute such a deed, the plaintiffs are not entitled to recover.

      III. The provision in relation to the synagogue, as contained in the contract, was matter of agreement, and not of condition, and was.properly so inserted- in the deed, as prepared by the defendant, and the plaintiffs had no right to object to that deed.- (Craig v. Wells, 11 N. Y. Rep. 315. Bower v. Cooper, 2 Hare, 408. Blakesly v. Whiddon, 1 id. 166.)
    IV. The'plaintiffs, after what took place before and at the time appointed for paying the purchase money, and passing the' title—? after omitting then to insist that the provision relating to the synagogue should be inserted, as a condition, and not as a covenant—cannot be heard now to make such a claim.

      John E. Burrill, for the respondent.
    I. The words “to be occupied for a Jewish synagogue” created no covenant, on the part of- the purchaser that the premises shall be occupied for such purpose.
    1. The words themselves are not those usually uséd for such purpose, nor are they found in the proper place in the ' contract.
    2. The contract declares what kind of a deed shall be given, and what covenants it shall cbntain.
    3. The words are more approprite to create a condition.
    4. If a condition was created, the defendant was not justified in inserting a covenant.
    5. Even if the words amount to either a covenant or condition, the utmost effect to be given to them would be to restrict the use to that of a synagogue, and not to compel the purchaser to use them for that or any other purpose.
    II. Whatever may be the construction of the word's, the seller had no right to insert any covenant or condition in the deed based upon them.
    1. If he desired to insert them at all, he might perhaps be justified in placing them in the deed in the same position in which they were in the contract.
    2. The contract declares that the deed shall be a warranty, and provides what covenants it shall contain.
    3. It was not necessary to protect the defendant that these words should be inserted in the deed, because if they amounted to a covenant or agreement, the defendant had his remedy on the contract. (Morris v. Whitcher, 20 N. Y. Rep. 41.)
    III. The evidence shows that at-the time fixed by the contract, the plaintiff was ready to receive a proper deed and pay the residue of the purchase money, but that the defendant refused to deliver any deed but one containing the covenant in question; the plaintiff was therefore entitled to recover the $1000 paid and interest.
    IY. The findings of the court are in accordance with the evidence.
   By the Court, Barbour, J.

The evidence shows that, a few days before the time fixed in the contract for its performance, the plaintiffs sent to the defendant, and requested him to execute, a deed, containing a covenant!, whereby the grantees covenanted and agreed for themselves, their heirs, &c. to and with the grantor, his heirs, and assigns, that the granted premises should be “occupied for a Jewish synagogue, or, first class dwelling houses;” that the defendant struck out the words “ or first class dwelling houses,” and executed such deed, so amended, and on the 2d of May, (being Monday,) tendered and offered to deliver to the same the plaintiffs, and they refused to receive it, upon the ground that the clause in relation to first class dwelling houses had been stricken out, but offered to take it, with that clause reinstated. That was declined by the defendant, and, thereupon, the plaintiffs demanded the return of the $1000. The defendant was not requested to strike out the covenant in regard to the synagogue, nor to execute any deed other than that; which contained the words “or first class dwelling houses,^ and which had been so prepared by the plaintiffs.

The learned justice before Whom, without a jury, the cause was tried, has found, as a fact, that the defendant refused to execute a deed of the premises in accordance with the terms of the agreement; but, upon a careful examination, I am unable to discover sufficient evidence to show that such refusal was made.

. This finding is important, for the plaintiffs were not required ■ by the contract to accept a deed which bound them by a coyenant, running with the land, to occupy the premises for a synagogue only,, thereby rendering themselves liable in an action ■ for damages, in case such covenant should be broken; but they were entitled to a deed in which the provision touching the use of the premises, was incorporated as a declaration or condition merely. (Craig v. Wells, 11 N. Y. Rep. 315. Bower v. Cooper, 2 Hare, 408. Blakesly v. Wliiddon, 1 id. 176.) It is neither necessary nor proper to speculate as to the question whether such condition was more or less valuable than a covenant, in that respect. It is enough that the contract required a conveyance of the land “ to be occupied,” or used, in a certain manner. That, had the deed been so drawn, would have been, at most, a condition entitling the grantor, or his heirs, to a certain remedy in case of breach ; and the defendant had no right to require the plaintiffs to accept such a deed as would have given the grantor a right to another or different remedy.

Nor do I think the drawing of the deed containing a covenant instead of a mere declaration or condition, by the plaintiffs, and their request to the defendant to execute it, was a waiver of their right, or estopped them to demand such a conveyance as was called for by the contract, upon his refusal to execute the deed tendered. They may have - been content to accept a deed containing the provision in relation to the dwelling houses, so as to leave it optional with them to erect a synagogue or dwelling houses, as they should see fit, even though expressed in the form of a covenant, and yet quite unwilling to receive a conveyance containing a covenant on their part to occupy, the premises for a synagogue exclusively. At' best, it was a mere proposition on their part to change the terms of the contract, which was not accepted. If, therefore, the defendant had refused, when properly requested by the plaintiffs, to execute the deed described in the written agreement, there can be no doubt the latter would have been entitled to a recovery in this action. Assuming, as we do, however, that the finding in this particular was erroneous, there can be no doubt the judgment should have been for the defendant, upon the trial. For the sole objection made by the plaintiffs to the deed tendered by the defendant, was not to the form of the instrument, but to a matter of substance, in that it did not contain a covenant not embraced in the agreement, and which the defendant was not bound to insert, and no demand was made upon him for the execution of the deed called for by the contract, nor, indeed, any deed not containing the covenant as to the dwelling houses. For aught that appears, therefore, the defendant was, at the time fixed by the contract for the delivery of the conveyance, and ever since has been, quite willing to perform the agreement on his part.. Besides, the only offer or tender of payment which is shown by the evidence to have been made by the plaintiffs, was coupled with, and formed a part of, the request to the defendant to execute and deliver a deed containing the covenant in relation to the dwelling houses. No absolute and unconditional offer to pay, or to pay upon the execution of the deed described in the agreement, appears to have been made ; and as the contract was mutual, and the payment and conveyance were to be simultaneous, it follows that, for this reason, the plaintiffs are not entitled to recover. (Swan v. Drury, 22 Pick. 485. Shaw v. Turnpike Co., 2 Penn. R. 454. Howe v. Huntington, 3 Shipley, 350, Fairbanks v. Dorr, 6 N. H. Rep. 266. Warren v. Wheeler, 21 Maine R. 484. Dana v. King, 2 Pick. 155. Hunt v. Livermore, 5 id. 395.)

The judgment should be reversed, and a new trial granted.

Monell, J. (dissenting.)

It is not necessary for me to add any thing to the opinion delivered by me at the special term, that the words in the contract, “ to be occupied for a Jewish synagogue,” are to be regarded in the light of a condition, and not of a covenant. This was substantially admitted on the argument. It is clear, therefore, that the deed finally tendered containing the covenant, was not a compliance with the terms of the contract; nor was it such a deed as the plaintiff was bound to receive. The question then is, has the plaintiff shown enough to entitle him to rescind the contract, and recover 'his deposit ?

If a demand by the plaintiff of a deed was necessary, the evidence, I think, is sufficient to show that it was rendered unnecessary, by the neglect of the defendant to execute or deliver any other deed than the one containing the covenant.

Mr. Gleason, a witness for the defendant, testified, that he tendered the deed prepared by the plaintiff, and that the plaintiff refused it, . because the words or first class dwelling houses” had been stricken out. No other deed was offered. He relates a conversation with Mr. Swain, one of th,e plaintiff’s attorneys, and said he thought Swain pointed out the objectionable clause in the deed, and said, if I would strike it out he would take the deed.” The defendant testified, that the plaintiff objected to the deed, and wanted the written agreement stricken out. That their objection to the deed was, that they could not use the premises for any purpose but a synagogue, and they objected to the covenant in the deed on that account.

It is undisputed, that the only deed tendered contained the objectionable .covenant. It is also indisputable, that at no time did the defendant offer or evince a willingness to deliver any other deed. The evidence, perhaps, does not show that the plaintiff demanded a deed, executed in the precise terms of the contract; but it does show, that they always objected to the deed tendered, and on the ground that it restricted the use of the property.

Taking the averment in the- answer, that the defendant offered such deed, and the proof on the trial that it was the only deed tendered, and that the plaintiff refused to receive it because the covenant was in, and it is quite equivalent to evidence of a refusal to deliver any other deed, and was, therefore, a waiver of a demand, if one was necessary. The disagreement of the parties arose from the covenant in the deed; and the language of the whole case is, that the defendant insisted the covenant should remain, and the plaintiff objected. This excused a specific demand,«and even rendered a tender of performance unnecessary, it being evident that the defendant would refuse to execute any other deed. A refusal by one party to perform, always excuses a demand of performance by the other. (Driggs v. Dwight, 17 Wend. 71.)

The performance by the parties, in this case, was to be simultaneous. The deed was to be given, and the money paid at the same time. The tender of the purchase money entitled the plaintiff to the deed, and the case would not be strengthened if they had, in addition, demanded it,,

But, I think, the plaintiff's readiness to perform and tender of performance, was all that was required under the facts of the case, and that no specific demand was necessary.

The rule, is uniform at law, and in equity, that where a party refuses to perform, or puts it out of his power to perform, no demand by the other party is required.

Thus, in Driggs v. Dwight, (supra,) a tenant who had been refused possession by the landlord of leased property, recovered damages without showing any demand.

In Foote v. West, (1 Denio, 544,) the defendant agreed to sell a church pew, and to execute a good and sufficient deed therefor. At the time appointed, he offered to the plaintiff a lease in perpetuity, executed by the church society, conveying the pew subject to a rent. The plaintiff claimed a deed not subject to rent, and that it should be executed by the defendant. On this proof, the plaintiff rested, and the defendant moved for a nonsuit, on the ground that the plaintiff should have demanded such a deed as he was entitled to, and then waited a reasonable time for it to be prepared and executed. The motion was denied, and the court, in banc, says: “ Such position, taken by the defendant, made it unnecessary for the plaintiff to wait any time for the defendant to execute the deed to which he was entitled by the contract. The contract was then broken by the defendant, and a right of action accrued to the plaintiff.”

In Bellinger v. Kitts, (6 Barb. 273,) where the defendants refused to convey, it'was held that an offer and readiness to perform, on the part of the plaintiff, was enough. Stone v. Sprague, (20 Barb. 509,) and Flynn v. McKeon, (6 Duer 203,) are to the same point.

In the case before us, it would have been a vain and idle performance to have demanded any deed other than the one the defendant tendered, and the law never imposes the performance of a fruitless duty. The evidence makes the case clear to my mind, that the defendant did not intend, at any time, to recede from his position, that the covenant should be in the deed; and no demand or tender would have changed that determination, It would have been idle, therefore, to have gone through the ceremony of a demand or tender.

Time having been made of the essence of the contract, (Wells v. Smith, 7 Paige, 22,) a specific performance could not now be enforced, and the plaintiffs would be without remedy or redress, if they are to be put in default by reason of not having demanded a performance, when performance would inevitably have been refused,

I see no reason for changing the views I entertained at special term. Indeed, the careful examination I have given the case, has confirmed me in the decision I then made.

I am, therefore, in favor of affirming the judgment.

New trial granted.