Schermer v. Neurath

Robinson, J., delivered the opinion of the Court. This is an action by the appellant to recover the value of four United States coupon bonds of the value of $1000 each, and one bond of the value of $500 which were left with the appellee for safe-keeping, and which were afterwards stolen hy a female thief, known as Mary Miller. ⁴⁹⁴ The evidence shows that. after an absence of several years in Europe, the plaintiff returned to Baltimore in October, 1875, and stopped at the house of the defendant, his brother-in-law. He had on his person at the time the bonds in question, enclosed in an envelope, and the envelope in his pocket-book. Being about to retire to his bedroom, he asked the defendant whether he should take the bonds with him, to which the defendant replied “ that he thought it would be safer to leave them with him.” 'Whereupon the plaintiff handed the bonds to the defendant, and the latter in the presence of the plaintiff put them in a small wooden box, in which he kept his valuable papers, and locked the box, and put the box in a bureau drawer in his bedroom and locked the drawer.

The defendant’s house is at the corner of Park and ' Payette Streets, and the first floor on both streets, is occupied by stores and shops, one of which being the defendant’s shoe shop. The second floor was occupied by the defendant and used for a parlor, dining-room and kitchen, and the third story for bed-rooms. The main entrance was on Park Street. The plaintiff remained as a guest in the defendant’s house for about two weeks, and, being about to go .to North Carolina on a visit, he asked the defendant for his bonds; but, upon the suggestion by the latter that it was safer to let them alone, he consented to let them remain.

On the same day he took from defendant a receipt describing the numbers and amounts of each bond, and stating that they were left by plaintiff with defendant for safe-keeping. After his return from North Carolina, the plaintiff went to defendant’s bouse for the purpose of cutting off the coupons then due. They went up stairs together, and the defendant unlocked the bureau drawer, took out the small box, unlocked it, and handed the bonds to the plaintiff. The ⁴⁹⁵ coupons were cut off by the latter, and, in his presence, the defendant again placed the bonds in the box and locked it, and put the box in the bureau drawer, and then locked the drawer.

The plaintiff continued to reside in Baltimore, but nothing more was said about the bonds until April following, when it was discovered that they, together with defendant’s papers and jewelry, had been stolen. Mary Miller, the thief, in her testimony, fully explains the manner in which they were stolen. She says: “About ten o’clock in the morning she left the house where she was staying, and walked around the city. About five or six o’clock she passed the house of the defendant, went up stairs, and found all the doors up stairs open.

Went first into the front room and found the bureau drawers open, then went into the adjoining room, and found the second drawer of the bureau in that room locked. She broke the lock and took out the small box, and broke the lock of the box, and took out the plaintiff’s bonds and the defendant’s papers. She then went into the front room and took three watches and some jewelry, and then left the house without seeing any one.” It appears, also, that some time before the theft by Mary Miller, the defendant, without the knowledge of the plaintiff, deposited the $500 bond with Wilson, Colston & Co. as collateral security for money borrowed. He subsequently, however, paid to the plaintiff $526.25, the amount due on the face of the bond with interest to date.

The declaration contains three counts, one for trover and two for negligence. In granting the defendant’s, and in refusing to grant the plaintiff’s prayers, the Court substantially instructed the jury that the plaintiff had offered no evidence legally sufficient to entitle him to recover under either count in the declaration. After a careful examination of all the evidence offered by the plaintiff, we are obliged to say, that in our judg ⁴⁹⁶ merit it was not legally sufficient to warrant a jury reason■ably"fc<\ find, either that the bonds were lost by theactionable negligence of the defendant, or that they had been •converted^ to his own use. The proof shows that the bonds were left with the ■defendant for safe-keeping, without any reward or profit, ■and that he agreed to take care of them solely for the ■accommodation of the plaintiff; that he put them in a box in which he kept his own valuable papers, and put the box in the bureau drawer in his bed-room, and that both box and drawer were locked; that this was done with the knowledge and consent of the plaintiff, and that they remained there with his consent.

Under these cir•cumstances the plaintiff cannot reasonably say, there was ■any negligence in regard to the place in which the bonds were kept. If this be so, there is no evidence to show that they were subsequently lost by any wrongful act or fault of the defendant. He was not required, of course, to keep the doors of the chamber