Tindall v. McCarthy

Citations

• 44 S.C. 487
• 22 S.E. 734
• 1895 S.C. LEXIS 110

Syllabus

<p>1. Action — Bailment—Breach oe Contract. — A complaint is based upon breach of contract and not negligence, which alleges that plaintiff delivered a lighter to defendant to enable him to unload and discharge the gravel therein purchased from plaintiff, the defendant agreeing to do so and then to return the lighter the next day, but had refused on request so to do, and that the value of the lighter was §400, and plaintiff’s damages were-§400. There being evidence tending to establish this contract-and . its breach, a nonsuit was properly refused, even though there was no proof of negligence.</p> <p>2. Ibid. — Ibid.—Onus Probandi. — If the contract could be held to be a contract of bailment, the bailor might waive the tort and bring action of assumpsit for breach of contract. And, moreover, in a case of a bailment like this, the burden of proof of negligence does not rest primarily on the bailor; but the bailee, having received the lighterffor his own convenience, under a promise to return it, must return or account for it.</p> <p>3. Ibid. — Ibid.—Title.—Defendant having received this lighter from plaintiff under promise to return it, cannot, when sued for damages for the breach of his promise, defeat the action upon the ground that plaintiff had no title to the property.</p>