"We can see no principle upon which the witness, Nesbit, should have been allowed to state, “ that on Saturday of that week, in comparing the shipping receipts with intestate’s books, it was found that there was a difference of four bales.”
If the books had been produced in Court, the entries could not have been offered in evidence, and it was still more objectionable, to permit a witness to state the result at which he had arrived, by a comparison ; neither the shipping receipts nor books being present to verify its correctness.
His Honor erred in refusing to instruct the jury, “ that there was no evidence of an undertaking on the part of the defendant to deliver those four bales to the Charlotte & South Carolina Eailroad for transportation. By a contract with Gilmer, the defendant undertook to deliver the cotton at its depot in Charlotte to Gilmer, there being no consignee. Gilmer came on the same train and received the cotton at the defendant’3 depot in Charlotte; so the contract with Gilmer was executed, and Gilmer, like a prudent man, had an eye to the cotton until *196it was weighed and paid for. It had been taken into the depot house of defendant, for the purpose of being weighed. After that Gilmer had no further concern with it, and, for aught that appears, the four bales of cotton were left on the floor of defendant’s depot house, and were not in the charge of any one, except that it was constructively in the possession of Farrow, who had bought and paid for it, and so, of course, was under his charge, or that of his agents.
There is no evidence that Farrow notified the agent of defendant, that .he had bought Gilmer’s four bales of cotton. There is no evidence that Farrow requested the agent of the defendant to carry the four bales from the defendant’s depot and deliver it to the Charlotte & South Carolina Railroad for transportation, and undertook to pay what such carrying from the one depot to the other was reasonably worth, and there is no evidence that Farrow notified the defendant’s agent of the consignee, to whom the cotton was to be sent, or of the place to which it was to be sent. Under these circumstances, had the defendant shipped the cotton on the Charlotte & South Carolina Railroad, consigned to no one, and without a place of delivery, the act would not1 only have been looked upon “ as officious,” and subjecting the defendant to damages, but foolish!
Suppose there was á custom, or general undertaking, binding on the defendant, to deliver to the Charlotte and South Carolina Railroad all cotton which came on the defendant’s road to Charlotte, “for shipment to market,” that is with a through ticket, to some consignee at some place beyond Charlotte, such custom or general undertaking had no application to these four, bales of cotton. This cotton was not sent on the defendant’s road to Charlotte, “for shipment to marhetfffowt was, by the contract with Gilmer, to' be carried to Charlotte, and there to be delivered to him ; with which contract the defendant fully complied, and that was the end of it, in the absence of any evidence that the defendant, at the instance of Farrow, under*197took to deliver the cotton to the Charlotte and South Carolina Railroadkfor transportation beyond that point.
Pressed with this difficulty, the plaintiff’s counsel, as we infer from his Honor’s charge, then took the position that the defendant undertook, as warehouseman, to keep the cotton for the aintiff. His Honor ought to have instructed the jury -that there was no evidence to support the allegation, that the defendant had undertaken, as a warehouseman, to keep the cotton for the plaintiff. There is no evidence that the defendant knew that the plaintiff had bought the cotton, or ever had any communication with him in respect to this cotton. .
We must infer from his Honor’s charge, that plaintiff’s counsel then took the position that as the cotton, after being' weighed, was left on the floor of the defendant’s depot house, it will be presumed that the defendant gratuitously undertook to keep it for the owner, whoever he might be, and as the plaintiff turns out to be the owner, he has the right to avail himself of this gratuitous undertaking.
Without conceding this presumption, but supposing it to be so for the sake of the argument, his Honor erred in charging the jury that “a gratuitous bailee is bound to take extraordinary care.” This is manifestly erroneous, as-applicable to the case in hand. His Honor inadvertently reversed the rule of law, and confounded the matter. When a bailment is for the benefit of the bailee only, he is bound to take extraordinary care, and is liable for slight neglect. When a bailment is for the benefit of the bailor only, which is the supposed case we have under discussion, the bailee is only< liable for gross neglect, “ crassa negligentia,” approaching very near to fraud.
It is not necessary to advert to the other points in the case. Either these four bales were sent on the Charlotte & South Carolina Railroad, and there is a mistake in the comparison of the shipping receipts and the books of Earrow, or else the cotton was misappropriated by the agents of Earrow,’ or by the agents of the defendant, or it was stolen by some third person. *198Although this action was commenced in 1857, it is the plaintiff’s misfortune that he has not, as yet, been able to reach the merits of the case.
Per Curiam. . Venire de novo.