Contract, to recover the value of a watch, chain, pencil, watch-key, and pocket-book with contents, against the defendants, as bailees of the goods; with a count in tort for the conversion of said goods. Trial in the Superior Court, without a jury, before Mason, J., who reported the case for the determination of this court, in substance as follows:

The defendants are partners, and do a large ready-made and custom-made clothing business at their shop in Boston. A large and long room in said shop on the ground floor is devoted specially to the custom-made department. In one corner of this room, opposite to where customers enter it, is a closet, four feet wide and about ten feet deep, lighted with gas. This closet is used by the clerks of the shop as a place in which to hang up their coats, and, occasionally, as a dressing-room for customers. In the retail ready-made clothing department, on the other side of the shop, there are dressing-rooms especially provided for customers. The plaintiff went to said shop and selected material for a suit of clothes, and ordered one to be made for $16 ; and a few days thereafter, on July 3, 1884, went to have said suit tried on and fitted at said shop, and the salesman in the custom department directed him, by a motion of the hand, to the closet aforesaid, in which to hang up his clothes and put on his new suit. The plaintiff had never had his attention attracted to this closet until then, although he had been at the shop some four times in his life, and never knew of the dressing-rooms provided for customers in the ready-made department.

The gas in the closet into which the plaintiff went was not lighted, and the plaintiff hung the clothes he took off on the gas fixture and on the nails in the closet. There were other clothes hanging up in the closet at the time.

There was evidence, from an experienced tailor, that it was the custom of tailors to provide a dressing-room for customers in which to hang up their clothes and try on those which had been ordered to be made.

When the plaintiff had put on the suit, he came from the closet to be fitted. He was not attended to at once, as the salesman was talking with some one else at the time. The plaintiff, growing impatient, went back to his clothes in the closet, and looked at his watch in the pocket of his vest there to see what time it was. He then returned into the room, and the salesman came forward to examine and fit the suit. They then went to a mirror some thirty feet distant from the closet, and in the farther end of the room therefrom, where the suit was fitted. At this time there was no one else in the room but the salesman and the plaintiff, and no customer was in the room while the fitting was being done.

…

Citation profile

Relationships

How this case has been treated — in progress