#### Richard McCurrie, Defendant in Error, v. Edward Hines Lumber Company, Plaintiff in Error.

Gen. No. 17,233.

1. Damages — when •party cannot complain of amount. In an action to recover the value of a wagon, defendant cannot complain as to the amount of the judgment where the court without a jury adopts the testimony of his witness as to the value thereof.

2. Damages — when party cannot complain that proof of value related to time before the conversion. Where action was brought for the value of a wagon, defendant cannot complain as to the amount of the judgment because the testimony as to value related to a time before the conversion, where that was the best evidence of which the question was susceptible and where he offered evidence of its value at that same time.

3. Bailment — when evidence shows a bailment and that goods were lost through bailee’s negligence. In an action for the value of a wagon, where it appears that plaintiff, a teamster hired by defendant, according to the custom left his empty wagon in defendant’s lumber yard and hitched to a loaded wagon, expecting as usual to get his wagon in the evening, but that the wagon was not there and was never recovered, held, that the evidence warranted findings that the transaction constituted a bailment for defendant’s sole benefit; that defendant did not exercise care to prevent loss of the wagon and that the loss was due to defendant’s negligence.

Error to the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

Affirmed.

Opinion filed April 9, 1913.

*618Haynie & Lust, for plaintiff in error.

Edward E. Litziuger, for defendant in error; LeoN-abd C. Eeid, of counsel.

Mr. Justice Craves

delivered the opinion of the court.

Defendant in error was in the teaming business. He was under contract with plaintiff in error to haul lumber from its yards. It was the custom, known to both parties, for plaintiff in error to require teamsters who came into the yards with an unloaded wagon to unhitch their teams therefrom and leave it in the yards to he loaded while they hitched their teams to loaded wagons and hauled them out of the yards. When their wagons were loaded, other teamsters, who in the meantime came into the yards with unloaded wagons, would in like manner hitch to the first wagon so left and loaded and so on, until a teamster was through work, when he would take or he given his own wagon and would take it away. In March, 1910, in the performance of his contract, defendant in error sent a team, wagon and a teamster hy the name of Hanahan to the yards of plaintiff in error to haul lumber, and in conformity to the custom mentioned and the directions of one Maher, the shipping clerk of plaintiff in error, Hanahan left the wagon of defendant in error in the yards to he loaded, and when it was loaded it was hauled out hy some other teamster. When Hanahan was through his work, he did not get the wagon he took there. Whether that was because it was loaded, or because it had been sent out hy another teamster, when it came time for him to quit work, is not made clear. The so-called stenographic report of the evidence, filed in attempted compliance with the Municipal Court Act, is in the narrative form and the help sometimes to he derived from the form of the questions put to the witnesses and the exact language used by them in reply is not available here. It is clear, how*619ever, tliat when Hanab.an was ready to leave tbe yards of plaintiff in error, where be bad left tbe wagon, it was not available to bim to take borne with him and that neither be nor bis employer ever did get it.

Tbe evidence conclusively establishes tbe further fact that plaintiff in error did not exercise any care whatever to see that tbe wagon was not lost.

It is apparent from tbe evidence that tbe reason for establishing tbe rule requiring teamsters to exchange wagons, and for tbe following of tbe rule in this particular instance, was to prevent tbe delay and waste of time that would be incident to tbe loading of each teamster’s wagon while be waited, and was for tbe sole benefit of plaintiff in error. Defendant in error made two demands on plaintiff in error for tbe return of tbe wagon before bringing this suit to recover its value. Tbe cause was tried by tbe court witb@ut a jury and resulted in a finding and judgment in favor of defendant in error for $94. Tbe court arrived at tbe amount of tbe judgment by allowing defendant in error $100 for tbe wagon and allowing plaintiff in error an item of set-off to tbe amount of $6. Tbe proof shows tbe wagon was worth at tbe time it was lost from $100, according to tbe testimony of a witness for plaintiff in error, to $120, according to tbe testimony of defendant in error.

Plaintiff in error is not in a position to complain as to tbe amount of tbe judgment, because tbe court adopted tbe testimony of its witness as to tbe value of tbe wagon. Neither can it complain because tbe testimony as to tbe value related to a time before it bad converted tbe wagon to its own use, because that was tbe. best evidence of which tbe question of value was susceptible in this case, and for tbe further reason that plaintiff in error offered evidence of its value at that same time, thereby waiving tbe question of its being tbe proper time.

When tbe identical property delivered to a person *620is to be returned, it is a bailment. Lonergan v. Stewart, 55 Ill. 44; Fleet v. Hertz, 201 Ill. 594-619. Where a bailment is for tbe sole benefit of the bailee, he must exercise extraordinary care over the property. Phillips v. Coudon, 14 Ill. 84; Hagebush v. Ragland, 78 Ill. 40; Howard v. Babcock, 21 Ill. 259; Bennett v. O’Brien, 37 Ill. 250. When property is delivered into the hands of a bailee and is not returned at all, the law presumes negligence on the part of the bailee and imposes on him the burden of showing that he exercised such care as was required by the bailment. Funkhouser v. Wagner, 62 Ill. 59; Bennett v. O’Brien, 37 Ill. 250; Cumins v. Wood, 44 Ill. 416; Hudson v. Bradford, 91 Ill. App. 218.

After a full consideration of all the evidence introduced we are satisfied the Municipal Court was warranted in finding that the transaction constituted a bailment of the wagon in question to plaintiff in error for its sole benefit and that it did not exercise the degree of care required or in fact any care at all over the same to prevent its loss; that its loss was due to the negligence of plaintiff in error, and it was, therefore, liable to the bailor, the defendant in error, for its value.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.