:<^ |v5ni| .^ :S !"/;j^ ^lOSANCElCf^ ^OFCAlIFOff^ ^OFCAIIFO^^ "^/SlUAINn-atf^ _^ ^ ^dr^ ,\MEUNIVERS/A ^10SANC[ ^ ^OJITVD ?^^ ^OFCAllFOff^ ,^MFUNIVERy/A ^iosANcn£r^ ^^laaNvsov^ '%a3AiNfl-3\^^ ^OFCAllFOfi'^ ^OFCAlIFi ^OAuvHar -ri {-J -< ■%a3AJN(l-3\C^ ^tllBKAKtc;/' ^5^UIBKAKT(/^ AWl/NIVtKi/A <: ^^SOJITYDJO'^ \^i\m\^ ^XJiJDNVSOl^ %a3AINIl- f/A ^lOSANCn% =0 O ^OF-CAIIFO/?^ ^OFCAllFOff^ ^ %jaAiNft-3rti^ ^'^omwf^ A\^ElINIVFPy/A < •<^3NVS0# ^•lOSANCE i-n —J ■ ■ ■ — 1 5 ai 2 ^.^^ ^OFCAllFO«|^ ^wtuNivm/A ANltAAf(l.tltJ> .5jaEUNIVER% AKlOSANCElfj-^ j^ ^OFCAllF( "^AHVban )l 33 s^UIBBARV<:jr vp,VOSANCf i MB -^ ^5? ^FCAllFO% ^OFCAIIFO%. . nME UNP/tRS/A .. S0# % i ft^f rtMJKIVFW/4 ^lOSAHCn% ^ ?lJ3((VS(n=<^ '%RaAINfl-3HV HI># auoAMW < C{<; 3FCAIIF0%^ ^OFCAIIFOI?/^ .^ < - ^^ ''^^m^ ^ rxmHrni"^ ^^omu^^ -^smixim^ '% ^ % rtEllNIVFRS//i o "^/sajAiNn-av^^ ^VOSANCnfr^ ■^/^ajAiNn-s^ft^ 5 ^0F'CA11F(% 3 ^.OFCAUFOM^ car cD V^; I ^ VLiB«A(rr, >i 5.4 C, 1 ^% THE e hLO LAW OF CONTRACTS, BY THEOPHILUS PARSONS, LL.D., AUTHOR OF TREATISES ON THE ELEMENTS OF MERCANTILE LAW, ON THE LAW OF SHIPPING AND ADMIRALTY, ON MARINE INSURANCE, ON PARTNERSHIP, ON NOTES AND BILLS, AND ON THE LAWS OF BUSINESS AND BUSINESS MEN. VOLU]ME II. EIGHTH EDITION, EDITED BY SAMUEL WILLISTON. BOSTON: LITTLE, BROWN, AND COMPANY. 1893. pJ^l^ Entered according to Act of Congress, in the year 1853, by Theophilus Parsons, 111 I he Clerk's Ollice of the District Couit of the District of Massachusetts. Copyright renewed 1881, by Theophilus Parsons. Entered according to Act of Congress, in the year 1855, by Theophilus Parsons, In the Clerk's Office of the District Court of the District of Massachusetts. Copyright renewed 1883, by Catharine A. Parsons. Entered according to Act of Congress, in the year 1857, by Theophilus Parsons, In the Clerk's Office of the District Court of the District of Massacnusetts. Entered according to Act of Congress, in the j'ear 1860, by Theophilus Parsons, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1864, by Theophilus Parsons, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1873, by Theophilus Parsons, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1883, by David L. Webster, Francis A. Dewson, and Charles M. Keed, Trustees. In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the }'ear 1893, bj' David L. Webster, Francis A. Dewson, and Charles M. Reed, Trustees, in the Office of the Librarian of Congress, at Washington. 7 O-^t,^ University Press: John Wilson and Son, Cambridge, U.S.A. . ^ CONTENTS. PART I. THE LAW OF CONTRACTS COXSIDERED IX REFERENCE TO THE OBLIGATIONS ASSUMED BY THE F ARTIES. — Continued. BOOK III. THE SUBJECT-MATTER OF CONTRACTS. CHAPTER VII. GUARANTY OR SURETY. Section I. Page \Vliat is a guaranty 3 Section II. Of the consideration . . ., 6 Section III. Whether a promise is original or collateral 9 Section IV. Of the agreement and acceptance 12 Section V. Of the change of liability ' 16 776889 iv CONTENTS. Sectiox YI. Page How a guarantor is affected by indulgence to a debtor .... 23 Section VII. Of notice to the guarantor ♦• . 30 Section VIII. Of guaranty by one in office 31 Section IX. Of revocation of guaranty 32 CHAPTER VIII. HIRING OF PERSONS. Section I. Servants 34 Section II. Apprentices 53 CHAPTER IX. Contracts fob Service Generally 58 CHAPTER X, MARRIAGE, Section I. Contracts to marry 64 Section- II. Promises in felatioti to settlements or advances 76 CONTENTS. V Section III. Page Contracts iu restraint of marriage 79 Section IV. Contract of marriage 80 Section V. Divorce 89 CHAPTER XL BAILMENT. Preliminary remarks 94 Section I. Depositum 97 Section II. Mandatum 105 Section III. Commodatum 115 Section IV. Pignus 117 Section V. Locatio 129 Section VI. ^Vho is a common carrier 172 Section VII. Obligations of a common carrier 182 vi CONTENTS. Section VIII. Page "When the responsibility begins 186 Sectiox IX. "Wlien the responsibility ends 193 Section X. Where a third party claims the goods 215 Section XI. Compensation 217 Section XII. Of the lien and agency of the carrier 218 Section XIII. Of the responsibility of the carrier beyond his own route . . . 223 Section XIV. Common carriers of passengers 229 Section XV. Of special agreements and notices 248 Section XVI. Of fraud 264 CONTENTS. Vll CHAPTER XII. ON THE LAW OF TELEGRAPHIC COMMUNICATION. Section I. Page Of telegraphs in general 267 Section II. The legal character of a company working a telegraph .... 267 Section III. The obligations and rights of telegraph companies 271 Section IV. Of the breaches of this contract 279 Section V. Of the contract between the company and the persons to whom messages are sent 282 Section YI. Of contracts between sender and receiver by telegraph .... 285 Section VII. Of the measure of damages 289 CHAPTER XIII. ON PATENTS. Section I. Of patents in general 292 Section II. Of the foundation of a patent-right 292 viii CONTENTS. Section III. Page Who may obtain a patent 293 Section IV. Wliat may be subject of a patent 296 Section V. Of interference 302 Section VI. Of infringement 303 Section VII. Of the rights of a purchaser of an interest in a patent .... 307 Section VIII. Of the rights of a purchaser of a patented article 309 Section IX. Of remedies at law 311 Section X. Of remedies in equity 312 Section XI. Of damages 315 CHAPTER XIV. OF THE LAW OF COPYRIGHT. Section I. What is protected by copyright 318 Section II. Of assignment 327 CONTENTS. IX Section III. Page Of infringement 329 Section IV. Eemedies at law or in equity 336 CHAPTEE XV. ON TRADE-MARKS. Section I. What a trade-mark is 340 Section II. Of the right which a trade-mark secures 345 Section III, Wlio may have a trade-mark 346 Section IV. How this right may be acquired 351 A7id herein, A. How originally acquired 351 B. Of the acquisition of the right by inheritance .... 354 C. Of the acquisition of this right by assignment .... 356 Section V. Of the infringement of a right to a trade-mark 359 Section VI. Of the remedy for violation of the right to use a trade-mark . . 365 X CONTENTS. CHAPTER XVI. OF THE LAW OF SHIPPING. Sectiox I. Page Of the building and ownership of a ship 369 And herein, A. Of a building contract 369 B. Of the liens of material men 370 C. Of owners 376 D. Of part-owners 377 1. Who are part-owners 377 2. Of the powers and duties of part-owners .... 377 3. Of a ship's husband 379 4. Of the liens of part-owners 381 5. Of remedies against part-owners 381 Section II. Of the transfer of a ship 383 And herein, A. Of a sale b}^ the owner 383 1. Of the implied warranty in such a sale 383 2. Of the requiremetot and effect of possession by the purchaser 384 B. Of the sale of the ship by the master 386 C. Sale of a ship under a decree of admiralty 388 D. Of transfer by mortgage 389 1. How a mortgage of a ship should be recorded . . . 389 2. Of the liability of mortgagees 389 E. Of transfer by bottomry 390 F. Of respo'ndentia 394 Sectiox III. Of contracts in relation to the use of a ship 395 And herein, A. Of the use of the ship by the owner 395 1. When he carries his own goods 395 CONTENTS. XI Page B. Of the use of a ship b}' freighters 396 1. Of the reciprocal liens of the ship and the cargo . . 396 2. Of the bill of lading 398 3. Of the delivery of the goods 403 4. Of transshipping the goods and forwarding them in other vessels 406 C. Of the use of the vessel by hirers or charterers .... 409 1. How charter-parties are made 409 2. Of the different kinds of charter-parties .... 410 3. Of the provisions of a charter-party 411 4. Of lay days and demurrage 413 5. Of the dissolution of a charter-party 415 Section IV. Of incidents of the voyage 416 And herein, A. Of loss by perils of the sea 416 B. Of collision 418 C. Of salvage 424 1. What salvage is 424 2. By what services salvage is earned 425 3. Of derelict 426 4. Who may be salvors 427 5. Of salvage compensation 429 6. Of salvage by public armed ships 431 7. How the claim for salvage compensation may be barred 431 D. Of general average 433 1. The sacrifice must be voluntary 434 2. The sacrifice must be necessary 438 3. The sacrifice must be successful 439 4. What constitutes a sacrifice 439 5. Of the value upon which contribution is assessed . 441 6. Of the adjustment of general average 442 Section V. Of persons employed in a ship 442 And herein, A. Of the master 442 Of the power of the master over the cargo .... 445 Xii CONTENTS. Page B. Of the seamen 447 1. Of the shipping articles 447 2. Of the wages of seamen 448 3. Of provisions 451 4. Care of seamen in sickness 452 5. Of the return of the seamen to this country . . . 453 6. Of the punishment of seamen 454 7. Desertion 456 C. Of pilots 457 CHAPTEE XVII. OF THE LAW OF MARINE INSURANCE. Section I. Of the contract 460 And herein, A. What this contract is 460 B. Of the policy 462 C. Of insurance through an agent 463 D. Of the transfer of the policy or of the property .... 464 E. Of requirements in the policy 467 E. Of the premium 468 Sectiox II. Of the parties to the contract 470 Section III. Of the property or interest insured 472 Section IV. Of the beginning and the end of the risk 474 Section V. Of open and of valued policies 478 And herein, A. Of open policies 478 B. Of valued policies 479 CONTENTS. Xlll Section VI. Page Of double insurance 481 Section VII. Of re-insurance 483 Section VIII. Of the risks insured against 484 A?id herein, A. General rules 484 B. Of fire generally 487 C. Of collision 488 D. Of theft or robbery 488 E. Of barratry 489 F. Of capture 490 G. Of general average 491 H. Of salvage 492 Section IX. Of total loss 492 And herein, A. Of actual total loss 492 B. Of constructive total loss and of abandonment .... 493 C. How and when abandonment should be made .... 500 D. Of acceptance of abandonment 501 E. Of revocation of abandonment 502 Section X. Of partial loss 503 And herein, A. What constitutes a partial loss 503 B. How the cost of repairs is estimated 504 C. Of total loss following a partial loss 506 Section XI. Of express warranties 506 xiv CONTENTS. Section XII. Page Of representations and of concealments 510 Section XIII. Of implied warranties 515 And herein, A. Of seaworthiness . 515 B. Of deviation 519 Section XIV. Of the adjustment 524 CHAPTER XVIII. OF THE LAW OF FIRE INSURANCE. Section I. Of the form of the contract 526 And herein, A. How the contract is made 526 B. Of the description of the property insured 532 C. Of alterations in the property 538 D. Of warranty, representations, and concealment .... 539 Section II. Of the interest of the insured 548 Section III. Of the risk assumed by the insurers 555 And herein, A. ^Tiat is fire? 555 B. Of the liability of insurers for the consequences of fire . 558 C. Of a loss caused by the negligence of the insured . . . 560 Section IV. Of alienation 561 CONTENTS. XV Section V. Page Of valuation 565 Section VI, Of double insurance and of re-insurance 568 A7id herein, A. Of double insurance 568 B. Of re-insurance 573 Section YII. Of proof and adjustment 574 CHAPTER XIX. OF THE LAW OF LIFE INSURANCE. Section I. Of tlie terms of the contract 578 Atid herein, A. How the contract is made 578 B. Of warranty and representations 578 C. Of restrictions and exceptions in life policies .... 586 Section II, Wliat interest is insurable 591 Section III. Of assignment and transfer 596 Section IV. Of the time when a policy attaches or terminates 598 Section V. Of the premium 601 Xvi CONTENTS, PART II. THE LAW OF CONTRACTS CONSIDERED IN REFERENCE TO THE OPERATION OF LAW UPON THEM. CHAPTEE I. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. Section I. Page General purpose and principles of construction 609 Section II. Of the effect of intention . 612 Section III. Some of the general rules of construction 617 Section IV. Entirety of contracts 633 Section V. Apportionment of contracts 637 Section VI. Of conditional contracts 642 Section VII. Of mutual contracts 645 Section VIII. Of the presumptions of law 646 CONTENTS. XVil Section IX. Page Of the effect of custom or usage 652 Section X. Of the admissibility of extrinsic evidence in the interpretation of written contracts 663 CHAPTER II. THE LAW OF PLACE. Section I. Preliminary remarks 682 Section II. General principles ■ . . 683 Section III. Capacity of parties 687 Section IV. Domicil 692 Section V. The place of the contract 696 Section VI. Of the law of the forum in respect to process and remedy . . . 702 Section VII. Of foreign marriages 707 Section VIII. Of foreign divorces , . . . 717 VOL. II. b XVIU CONTENTS, Foreign judgmeuts Section IX. Page 721 CHAPTER III. DEFENCES. Section I. Payment of money And herein, 1. Of the party to whom payment should be made 2. Of part payment . 3. Of payment by letter 4. Of payment in bank-bills 5. Of payment by check 6. Of payment by note 7. Of payment by delegation 8. Of stake-holders and. wagers 9. Of appropriation of payments Page 727 727 732 734 735 736 737 739 740 743 Section II. Of performance 751 And herein, 1. Of tender 751 2. Of the tender of chattels 761 3. Of the kind of performance 770 4. Of part performance 772 5. Of the time of performance 775 6. Of notice 782 7. Of impossibility of performance 786 8. Of illegality of the contract 789 Section III. Of defences resting upon the acts or omissions of the plaintiff . 790 And herein, 2. Of contributory negligence 798 CONTENTS. xix Section IV. Page Accord and satisfaction , . . . 799 Section V. Of arbitrament and award 806 And herein, 2. Of an agreement to submit questions to arbitration . . . 826 3. Of the revocation of a submission to arbitrators .... 829 Section VI. Of a release 831 Section VII. Of alteration 835 Section VIII. On the pendency of another suit 845 Section IX. Of former judgment 848 Section X. Of set-off 854 Section XI. Of illegal contracts 868 And herein, 1. Of contracts in restraint of trade 870 2. Of contracts opposed to the laws of other countries . . . 877 3. Of contracts which tend to corrupt legislation .... 878 4. Of wagering contracts 879 5. Of the Sunday law 881 6. Of maintenance and champerty 890 Section XIT. Of fraud 893 XX CONTENTS. CHAPTER IV. OF ESTOPPELS. Sectiox I. Page Of estoppels in general 913 Section II. Of estoppel by record 914 Sectiox III. Of estoppel by deed 915 Section IV. Of estoppel in pais 918 PART I. THE LAW OF CONTRACTS CONSIDERED IN REFERENCE TO THE OBLIGATIONS ASSUMED BY THE PARTIES — Continued. THE LAW OF CONTRACTS. CHAPTEE VII. GUARANTY OR SURETY. Sect. I. — Wliat is a Guaranty. Originally, the words ' ' warranty ' ' and ' ' guaranty ' ' were the same ; the letter g, of the Norman French, being convertible with the w of the German and English, as in the names William or Guil- laume. They are now sometimes used indiscriminately ; but, in general, warranty is applied to a contract as to the title, quality, or quantity of a thing sold, which we have already considered under the head of sales ; and guaranty is held to be the contract by which one person is bound to another, for the due fulfilment of a promise or engagement of a third party. ^ And this we shall now consider. ^ The words " surety " and " guarantor " are often used indiscriminately, but the dis- tinction is taken that while a surety is an original contractor, bound usually by the same instrument and in the same terms as the principal, the contract of a guarautor is col- lateral, — not to do the same thing which the principal agrees to do, biit to make good the damages, if the principal fails to do what he has agreed. As to tliis distinction and its consequences, see Hall v. Weaver, 34 Fed. Kep. 104; White's Adm. v. Life Assoc 63 Ala. 419, 423 ; Saint v. Wheeler. &c. Co. 10 South. Rep. 539 (Ala.) ; McMil- lan V. Bull's Head Bank, 32 Ind. 11 ; Markland Mining, &c. Co. v. Kiinmel, 87 Ind. 560, 566; Weik i;. Pugh, 92 Ind. 382 ; La Rose v. Logansport Nat. Bank, 102 Ind. 332,335; Courtis v. Dennis, 7 Met. 510; Beigart v. White, 52 Pa. 438; Kramph's Ex. V. Hatz's Ex. 52 Pa. 525 ; Hartman v. First Nat. Bank, 103 Pa. 581 ; Kearnes v. Montgomery, 4 W. Va. 29 ; Harris i'. Newell, 42 Wis. 687. As a guaranty is a col- lateral contract it may take any form which the parties may agree ufion. " Guaranties are expressed in so many different forms and are applicable to so many different conditions of things, that it sometimes becomes difficult to give them their true inter- pretation. They are often mere proposals to guarantee, sometimes mere recommen- dations, and frequently little more than expressions of friendship, confidence, or courtesy. Sornetimes they guaranty what is fixed and known ; sometimes something to be done or brought into existence ; sometimes they are continuing, sometimes limited to a single transaction ; sometimes direct and sometimes collateral, and always refer to something beyond themselves." Milroy v. Quinn, 69 Ind. 406, 410, per Bidcllp, J. A guaranty of collection guarantees that a debt can be collected with due diligence, if an action is promptly brought, the debtor's insolvency in some cases excusing a failure to sue. Aldrich r. Chulib, 35 Mich. 3.50; Brackett v. Rich, 23 Minn. 485 ; Stone v. Rockefeller, 29 Ohio St. 625 ; Evans v. Bell, 45 Tex. 553. 3 * 4 THE LAW OF CONTRACTS. [book III. In general, a guaranty is not negotiable, nor in any way trans- ferable, so as to enable an action to be maintained upon it by any other person than him with whom the contract is made, (a) ^ * 4 * It is a promise to pay the debt of another ; but the guaran- tor may be held, although no suit could be maintained upon the original debt ; and such guaranty may have been required for the very reason that the original debt could not be enforced at law ; as where the guarantor promises to be responsible for goods to be supplied to a married woman, (b) or to be sold to an infant, not being necessaries, (c) But w'here the original debt is not enforceable at law, the promise to be responsible for it is con- sidered, for some purposes, as direct and not collateral; as, in fact, the original promise, (d) But if an infant purchase neces- saries, and give a promissory note signed by himself, and by another as surety, who pays the note, such surety can recover the amount so paid, of the infant, (e) In general, the liability (a) True v. Fuller, 21 Pick. 140 ; Tyler V. Binney, 7 Mass. 479 ; Lamourieux v. Hewett, 5 Wend. 307 ; Springer v. Hutch- inson, 19 Me. 3.59; McDoal v. Yeomaus, 8 AVatts, 361 ; Caufield v. Vaughan, 8 Mart. (La.) 682; Upham v. Prince, 12 Mass. 14 ; Miller v. Gaston, 2 Hill (N. Y.), 188 ; Watson v. McLaren, 19 Wend. 537 , Tuttle V. Bartholomew, 12 Met. 452 ; Tay- ler V. Binuey, 7 Mass 479; Ten Eyck v. Brown, 4 Chand. 151 ; Tinker v. Mc- Cauley, 3 Mich. 188. Although the instrument may be in the form of a guar- anty, yet if it contain in itself all the elements of a negotiable promissory note, it is then negotiable. See Ketchell v. Burns, 24 Wend. 456. In this case, the instrument was as follows : " For and in consideration of thirty-one dollars and fifty cents received of B. F. Spencer, I hereby guarantee the payment and col- lection of the within note to him or bearer. Auburn, Sept. 23, 1837." (Signed) Thomas Burns. And it was held nego- tiable. In Reed v. Garvin, 12 S. & R. 100, it wa.s held, that a guaranty given by the assignor of a bond runs with it into whose- soever hands it may come, and the guar- antor cannot be a witness. See McLaren V. Watson, 26 Wend. 425 ; Adams v. Jones, 12 Pet. 207; Walton v. Dod.sou, 3 C. & P. 163; Bradley v. Gary, 8 GreenL (Bennett's ed.) 234; Phillips"?;. Bateman, 16 East, 356. If a guaranty is directed to a particular house, by name, and another house advance goods upon it, they have no claim upon the guarantor. Bleeker v. Hyde, 3 McLean, 279 ; Grant r. Naylor, 4 Cranch, 224 , contra, see McNaughton ?'. Conkling, 9 Wis. 317. And if the letter of guaranty is addressed to two persons and received and acted upon by one only, the guarantor is not bound. Smith v. Montgomery, 3 Tex. 199; Myers v. Edge, 7 T. R. 234. But where the guaranty is addressed to no person in particular it may be acted upon by any one, and if such appear to be the intention of the parties, goods may be furnished by several differ- ent dealers on the faith of the guaranty. Lowry v. Adams, 22 Vt. 160. And in Vermont it would seem that a guaranty is negotiable. Partridge v. Davis, 20 Vt. 499. (b) See Maggs v. Ames, 4 Bing. 470; Connerat v. Goldsmith, 6 Ga. 14. (e) See Conn v. Coburn, 7 N. H. 368. (d) Harris v. Huntbach, 1 Burr. 373, and Reid v. Nash, there cited. See also Buckmvr v. Darnall, 2 Ld. Ravm. 1085. (e) Conn v. Coburn, 7 N. H. 368. In such case, the cause of action arises when the surety pays the note. Clark v. Fox- craft, 7 Greenl. 348. See also Fagin v. Goggin, 12 R. I. 398; Knaggs v. Green, 48 Wis. 601. Compare Ayers v. Burns, 87 Ind. 245. 1 If a person can enforce the principal debt, he can enforce a guaranty of it. Craig V. Parkis, 40 X. Y. 181 ; Claflin v. Ostrom, 34 N. Y. 581. In Iowa and" Michigan, a guaranty is negotiable, and the assignee mav sue in his own name. First Bank v. Carpenter, 41 la. 518, Waldron r. Harring, 28 Mich. 493.— A letter of credit is not negotiable. Roman u. Serna, 40 Tex. 306. — K. CH. VII.] GUARANTY. *G * of the guarantor is measured by that of the principal, and * 5 will be so construed, unless a less or a larger liability is expressly assumed by the guarantor ; as if he guaranteed payment of a note by an indorser, whether the indorser were notified or not. No special words, or form, are necessary to constitute a guar- anty. If the parties clearly manifest that intention, it is suffi- cient; and if the guaranty admits of more than one interpretation, and the guarantee has acted to his own detriment with the assent of the other party, as by advancing money, on the faith of one interpretation, that will prevail, although it be one which is most for the interest of the guarantee. (/") Still the contract is con- strued, if not strictly, accurately, {g) ^ and a guaranty of the notes or debts of one not only does not extend to his notes given jointly with another, (Ji) but if that one varies his business so as to change his liability from that which it was intended to guaranty, it would seem that the guarantor is discharged, (i) ^ And the guarantor who pays the debt of his principal is entitled to all the securities of the creditor, who must preserve them unim- paired ; (/) and equity will restrain a guarantee from enfor- cing his guaranty, until he has done what is * necessary to * 6 (/■) Bell r. Bruen, 1 How. 186; Law- Middleton, Turn. & E. 224; Hodgson v. rence v. McCalmont, 2 id. 449 , Tatum v. Shaw, 3 Mvl. & K. 183 ; Yonjje f. Keviiell, Bonner, 27 Miss. 760. I.t E L. & E. 237 , s c. 9 Hare, 809"; Mc- (g) Bigelow v. Benton, 14 Barb. 123 ; Daniels v. Flower Brook Manf. Co. 22 Vt. Evan V. Trustees, 14 111. 20 ; Fisher v. 286 ; Grove v. Brien, 1 Md. 438 ; Mathews Ciitter, 20 Mo. 206. v. Aikin, 1 Conist 595 ; Watson v. Alcock, (/() Eussell V. Perkins, 1 Mason, 368. 19 E. L. & E. 239 ; Strong r. Foster, .33 E. See also Connecticut, &c. Ins. Co. v. Scott, L. & E. 282 ; s. c. 17 C. B. 201 ; Pearl St. 81 Kv.^40 ; Parham Sewing Machine Co. Cong. Soc. v. Imlay, 23 Conn. 10; York v. V. Brock, 113 Mass. 194; White Sewing Landis, 65 N. C. 535, Price v. Trusdell, 1 Machine Co. v. Hines, 61 Mich. 423. Stewart, 200; Ottawa Bank v. Dudgeon, (/) Id. ; Wright v. Russell, 3 Wils. 530 ; 65 111. 1 1. See Hall v. Hoxsie, 84 111. 616. S. C. 2 W. Bl. 934; Dry v. Davy, 10 A. & In Chapman v. Collins, 12 Cush. 163, heUl, E. 30. that payment of a note by a principal dis- (j) Craythorne v. Swinburne, 14 Ves. charges the surety, so that tiie note can- 162; Parsons v. Briddock, 2 Vern. 608 ; not again be put in circulation against Wright V. Moreley, 11 Ves. 12; Conis v. him. ^ The liability of a surety is limited to the express terms of the contract, Mix v. Singleton, 86 111. 194 ; the terms of which should be constrned strictly and favorably to him. Ward v. Stahl,81 N. Y. 406 ; Columbus Sewer Pipe Co. ?■. Gaiiser, 58 Mich. .385, StuU V. Hanse, 62 111. 52. A guaranty to pay in ca.«e the holder "fails to recover" on a note, means a failure, after diligentlv prosecuting the maker. Jones v. Ashford, 79 N. C. 172. See further, as to con.struction. In re N. Y. Cent. R. Co. 49 X. Y. 414 ; Palmer v. Foley, 7 1 N. Y. 1 06 ; Belloni v. Freel>orn, 63 N. Y. 383 ; Birdsall o. Ileacock, 32 Ohio St. 177 ; Montgomery v. Hughes. 65 Ala. 201. — K. 2 So a guaranty of the debts of a firm for goods sold to it will not apply to transac- tions witli the remaining partners after the firm is dissolved, as by the deatli of one partner. Hollond v. Teed, 7 Hare, 50; Co.sgrove v. Starrs, 5 Out. 189. See also Lou- don, &c. Co. V. Terry, 25 Ch. D. 692; McCloskey v. Wingfieki, 29 La. An. 141. 5 ♦G THE LAW OF CONTRACTS. [BOOK III. turn these securities to account, if he alone can do this, (k) And if the creditor gives up [or negligently loses or destroys] any security for his debt without the guarantor's consent, he must account to the guarantor for it. (kk) So if the creditor agree with the principal that the debt shall be reduced or abated in a certain proportion, the guarantor consenting, he cannot hold the whole of the original guaranty, but must permit that to be abated or reduced in the same proportion. (/) ^ But after the guarantor has paid the debt, he has no right to demand an assignment to him- self of the debt, or of the instrument which creates or expresses the debt, if a promissory note, bond, or the like, for the very reason that the debt, and with it the instrument, has been dis- charged, and so made of no effect, (m) ^ It should be added, that unless the conditions of a guaranty are strictly complied with by the party to whom it was given, the guarantor will not be bound, (n) SECTION^ II. OF THE CONSIDERATION. Although the promise to pay the debt of another be in writ- ing, it is nevertheless of no force unless founded upon a con- sideration, (o) ^ It is itself a distinct contract, and must rest (A) Cotton V. Blane, 2 Aiist. 544 ; 272 ; Howe Machine Co. i\ Farrington, 82 Wrisht V. Nutt, 3 Bro. Ch. 326; s. c. I N. Y. 121. H. Bl. 137 ; Wright v. Simpson, 6 Ves. (/) Bardwell v. Lyrlell, 7 Bing. 489. 728. (?«) Copis i\ Middleton, Turn. & R. (kk) Thames v. Barbour, 49 111. 370; 224; Hodgson v. Shaw, 3 Myl & K 183; Pickens v. Yearborough's Adm. 26 Ala. Prav v. Maine, 7 Cush. 253. But see Low 417 ; Hubbard v. Pace, 34 Ark. 80; Crira v. Blodgett, 1 Foster (N. H.), 121 ; Good- V Fleming, 101 Ind. 164 ; Wooley v. Louis- year v. \Yatson, 14 Barb. 486 , Edgerlv v. ville Banking Co. 81 Kv. 527 ; Guild v. Emerson, 6 Foster (N. H.), 557; Alden Butler, 127 Mass. 386; Wulff v. Jay, L. v. Clark, 11 How. Pr. 209. R. 7 Q. B. 756. Compare Grisard v. Hin- («) Leeds v. Dunn, 10 N. Y (6 Seld.) son, 50 Ark. 229 ; Vance v. English, 78 469. Ind. 80; Sheldon v. Williams, 11 Neb. (o) Wain v. Warlters, 5 East, 10; 1 Where a surety agrees to be liable for a part only of a debt, he mav deduct a ratable proportion, reckoned on such part, of all dividend's paid on the entire debt, and a continuing guaranty, limited in amount, made to secure a floiiting balance, is prima facie, at lea.st, an agreement of liability for part only of the ascertained debt; but a guaranty, limited in amount, made to secure the entire debt, is entitled to no such deduction. Ellis c. Emmanuel, 1 Ex. D. 157. ^ In New York a surety is, however, entitled to such an assignment as well as of collateral security. Ellsworth v. Lockwood, 42 N. Y. 89 ; Hinckley v. Kreitz, 58 N. Y. 583, 591. ^ A guaranty, although without consideration, is not void as aarainst an innocent holder without notice, Parkhurst c. Vail, 73 111. 343 ; Clopton v. Hail, 51 j\Iiss. 482 , aa 6 CH. VII.] GUARANTY. * upon its own consideration ; but this consideration may be * 7 the same with that on which the original debt is founded, for which the guarantor is liable. The rule of law is this : if the original debt or obligation is already incurred or undertaken pre- vious to the collateral undertaking, then there must be a new and distinct consideration to sustain the guaranty, (p) But if the original debt or obligation be founded upon a good consideration, and at the time when it is incurred or undertaken, or before that time, the guaranty is given and received, and enters into the inducement for giving credit or supplying goods, then the con- sideration for which the original debt is incurred, is regarded as a consideration also for the guaranty, (q) It is not necessary that any consideration pass directly from the party receiving the guaranty to the party giving it. If the party for whom the guar- anty is given receive a benefit, or the party to whom it is given receive an injury, in consequence of the guaranty and as its inducement, this is a sufficient consideration, (r) Elliott ». Giese, 7 Har. & J. 457 ; Leonard »\ Vredeuburgh, 8 Johns. 29 ; Bailey v. Freeman, 4 id. 280 ; Clark v. Small, 6 Yerg. 418 ; Aldi-idge v. Turner, 1 G. & J. 427 ; Keelson v. Sanborne, 2 N. H. 414 ; Tenny v. Prince, 4 Pick. 385 ; Cobb v. Page, 17 Penn. St. 469. For the law will not, as a general rule, imply a considera- tion from the fact that the agreement was in writing. Dodge v. Burdell, 13 Conn. 170; Cutler v. Everett, 33 Me. 201. For- liearance, however, is a good consideration for the guaranty. Sage v. Wilcox, 6 Conn. 81 ; Russell v. Babcock, 14 Me. 138 ; Older- shaw V. King, 2 Hurl. & N. 517 ; Hocken- bury V. Mvers, 5 Vroom, 346 ; Calkins v. Chandler, 36 Mich. 320. See also Briggs r. Downing, 48 la. 550; Worcester Bank V. Hill, 113 Mass. 25. And if the guar- anty is given contemporaneously with the original debt, no otlier consideration is necessarv. Bailev i\ Freeman, 11 Johns. 221 ; Hunt v. Adams, 5 Mass. 358 ; Wheel- wright V. Moore, 2 Hall, 143; Rahaud v. De Wolf, 1 Paine C. C. 580 ; Wood v. Tunnicliff, 74 N. Y. 38. So where the guaranty of a note is made at the same time with its transfer, the transfer is a suf- ficient consideration to support the guar- anty. How i;. Keml)all, 2 McLean, 103; Gillighan v. Boardinan, 29 Me. 79. See Brown ik Curtiss, 2 Comst. 225. But a guaranty of payment of a pre-existing promissory note, where the only consider- ation is a past benefit or favor conferred, and without any design or expectation of remuneration, is without sufficient con- sideration and cannot be enforced. Ware V. Adams, 24 Me. 177. (p) Rabaud v. De Wolf, 1 Paine, C. C. 580 ; Pike v. Irwin, 1 Sandf. 14 ; Elder V. Warfield, 7 Har. & J. 391 ; Ware v. Adams, 24 Me. 177; Parker v. Barker, 2 Met. 423 ; Anderson v. Davis, 9 Vt. 136; Blake v. Parlin, 22 Me. 395; Bell v. Welch, 9 C. B. 154; Good v. Martin, 95 U. S. 90; McNauglit v. McClaughry, 42 N. Y. 22 ; Parkhurst v. Vail, 73 lU. 343 Clopton V. Hall, 51 Miss. 482. (ry) Bainbridge v. Wade, 1 E. L. & E 236; s. c. 16 ^Q. B. 89; Campbell v Knapp, 15 Penn. St. 27 ; Klein v. Currier, 14 111. 237 ; Bickford v. Gibbs, 8 Cush 156; Leonard v. Vredeuburgh, 8 Johns 29 ; Graham v. O'Keil, 2 Hall, 474 ; Con key V. Hopkins, 17 Johns. 113; Gardiner r. Hopkins, 5 Wend. 23 ; Rahaud v. De- Wolf, 1 Paine, C. C. 580. See How v. Kemball, 2 McLean, 103; Kurtz v. Ad- ams, 7 Eng. (Ark.) 174. See also note (o), ante. (;•) Bickford v. Gibbs, 8 Cush. 156; Morly V. Boothby, 3 Bing. 113, Best,C. J. ; Leonard v. Vredeuburgh, 8 John.s. 29. In this case, A applied to B for goods on credit, and B refused to let him have them without security, on which A drew a promissory note for the amount, under a transfer by a corporation of bonds guaranteed by it, though lilti-a vi'j-es and failing to express the true consideration, to a purchaser for value. Arnot v. Erie R. Co. 67 N. Y. 315. — K. 7 THE LAW OF CONTRACTS. [book III. Wherever any fraud exists in the consideration of the contract of guaranty, or in the circumstances which induced it, the con- tract is entirely null. As where a guaranty was given for the price of a large amount of iron, and it was proved that the buyer by arrangement with the seller paid something more than * 8 the fair price, which addition was to go towards the * pay- ment of an old debt, the contract was not enforced as to so much of the price as would have been fair, but was set aside as altogether defeated by the fraud, (s) which C wrote • " I guarantee the above," and the goods were then delivered. Held, that this was a collateral undertak- ing of C ; but that, as the transaction was one and entire, the consideration passing between A and B was sufficient to support as well the promise of C as that of A, and no distinct consideration passing between B and C was necessarv. (s) Jackson v. Duchaire, 3 T. R. 551 ; Pidcock V. Bishop, 3 B. & C. 605 ; s. c. 5 Dow. & R. 505. And Bayleij, J., in that case thus laid down the law . " It is the duty of a party taking a guaranty to put the surety in possession of all the facts likely to affect the degree of his responsi- bility; and if he neglect to do so, it is at his peril. . . . The plaintiff, when he accepted the guaranty, knew that Tickell was to pay hira not only the market price of the iron, but ten shillings per ton on the iron provided, in extinction of an old debt. The concealment of that fact from the knowledge of the defendant was a fraud upon him, and avoids this contract. Where by a composition deed the creditors agree to take a certain sum in full dis- charge of their respective debts, a secret agreement by which the debtor stipulates with one of the creditors to pay him a larger sum, is void, upon the ground that the agreement is a fraud upon the rest of the creditors. So that a contract which is a fraud upon a third person may, on that account, be void as between the par- ties to it Here the contract to guarantee is void, because a fact materially affect- ing the nature of the obligation created by the contract was not communicated to the surety." See also Stone v. Compton, 5 Bing. N. C. 142; Franklin Bank v. Cooper, 36 Me. 179; Selser v. Brock, 3 Ohio St. 302 : Booth v. Storrs, 75 111. 438 ; Bobbitt V. Shryer, 70 Ind. 513 ; Reming- ton Sewing ^lachine Co. ;;. Kezertee, 49 Wis. 409. So it was held, in Evans v. Keeland, 9 Ala. 42, that a surety may avoid his contract for a fraudulent con- cealment or misrepresentation of facts by the creditor, to induce him to become 8 surety, although the contract for which he was bound as surety is binding on his principal. But it was held in the same case, that a misrepresentation which will have this effect, must be the false assertion of a fact, and not the expression of an opin- ion of the value or quality of the property sold. Thus a declaration by the vendor that tlie land he was selling was as good or better than other tracts to which he referred ; that there was a comfortable dwelling-house, good outhouses, peach orchards, &c., on the land, is the expres- sion of an opinion, and not the assertion of a fact, the incorrectness or falsehood of which would enable the surety to avoid his contract So in Martin v. Striblin, 1 Speers, 23, it was held, that it is no dis- charge of a surety that he expected, when he signed as surety, that a third person would also sign as surety, and that such third person would receive from the prin- cipal certain books and papers as an indemnity for the suretyship ; unless it is sho\vn that the surety stipulated that the paper should not have effect until one or both of such things were done, or that the signature of the surety was obtained by means of a fraudulent representation that such third person would sign the notes, and that the principal would place in such third person's hands his books and papers, to be by him collected and applied in payment of the debt. And in Graves v. Tucker, 10 Sra. & M. 9, it was decided that a fraud practised by a prin- cipal debtor upon his surety, in obtaining the signature of the surety, does not dis- charge him from his obligation to the obligee of tlie bond, unless such fraud was with the knowledge or consent of the obligee. — So, where the surety of a note given for property purchased at an admin- istrator's sale, when requested by the principal to sign it, was told by the payee that his signature was only wanted as a form to comply with the order of the ordinary, it wa.s held, that no fraud was thereby practised on the surety which could avoid the note as to him. Smyley CH. VII.] GUARANTY. • 9 * SECTION III. *9 "WHETHER A PROMISE IS ORIGINAL OR COLLATERAL. It often happens that what appears to be a promise to pay the debt of another is not in writing, but is nevertheless enforced by the courts on the ground that it is an original promise., and not a collateral one, and therefore not within the requirement of the statute of frauds, (t) ^ The question what are the circumstances V. Head, 2 Rich. L. 590. See also Rail- tinct from and independent of the debt; ton V Mathews, 10 CI. & F. 9.36, and and the delivery of the books to Brvant, Hamilton v. Watson, 12 id. 109 ; North on tlie defendant's re(|uest, being in effect British Ins. Co. v. Lloyd, 28 E. L. & E. the same as a delivery to the defendant 456; s. c. 10 Exch. 523. himself, this new consideration passes (t) Thus, in Allen v. Thompson, 10 N. between the parties to the new contract. H. 32, the plaintiff had obtained the The authorities are clear that cases of this account-book of his debtor, as a pledge description are not within the statute, and to secure the debt ; and the defendant, in no writing is necessary to make the con- consideration that the plaintiff would tract valid." So in Hilton v. Dinsmore, deliver the book to one B, to collect the 21 Me. 410, it was determined that if a demands, verbally promised the plaintiff promise by the defendant, to pay tlie pre- to pay him the amount due from the viously existing debt of a third person, be debtor, if B should not collect enough for grounded upon the consideration of funds that purpose. Parker, C. J. : " In cases of placed in his hands by the original debtor, mere forbearance, there is no consideration with a view to the payment of this debt, independent of the debt, the forbearance as well as upon an agreement on the part being of the debt itself ; and it may, per- of the plaintiff to forbear to sue, it is an haps, be said, that this consideration, original undertaking, and need not be evi- being thus connected with the debt, moves denced by writing. But it is denied that only between the parties to the original a promise to pay the prior debt of another, contract although the delay is at the on the consideration merely of forbear- request and on the promise of a third per- ance to enforce payment, is valid unless son. But in this case, there is not only a the promise be in writing. The same dis- new consideration, but one which is dis- tinction is observed as to knowledge or 1 Thus the holder of property charged with the payment of a debt is liable on his promise to pay the creditor, whether in writing or not, Townsend v. Long, 77 Penn. St. 143, if it is sucli holder's duty to pay the debtor's obligations, Belknap v. Bender, 75 N. Y. 446 ; otherwise the promise must be in writing, Murphy v. Eenkert, 12 Heiskell, 397 ; as a grantee's oral promise to pay a mortgage on land, Huyler v. Atwood, 11 C. E. Green, 504 ; or to prevent a foreclosure. Prime v. Koehler, 77 N. Y. 91 ; or of a mort- gagee of chattels to a mechanic making repairs, on the latter's giving up his lieu. C?on- radt V. Sullivan, 45 Ind. 180. — If the promise is to pay one's own debt in a particu- lar way, although in form another's, it is original, Putnam v. Farnham, 27 Wis. 187 ; Calkins v. Chandler, 36 Mich. 320 ; McCreary v. Van Hook, 35 Tex. 631 ; Besshears v. Rowe. 46 Mo. 501 ; as a promise of a land-ow^ner to repay advances to a cropper, Neal V Bellamy, 73 N. C. 384. — If a surety procures another to become surety with him on the same instrument, the promise is not within the staute of frauds, for the indemnity promised is to secure his own default. Ferrell v. Maxwell, 28 Ohio St. 383 ; Horn v. Bray, 51 Ind. 555. But the promise of a third person to .save another harmless if he will become a surety, is within the statute. Bissig v. Britton, 59 Mo. 204 ; First National Bank v. Bennett, 33 Mich. 520; contra, Hendrick v. Whitteinore, 105 Mass. 23; Tighe v. Morrison, 116 N. Y. 263; Whitehouse v. Hanson, 42 N. H. 9. And .see Anderson v. Spence, 72 Ind. 315; Keesling v. Frazier, 119 Ind. 185; Nugent v. Wolfe, 111 Pa. 471. — K. 9 * 10 THE LAW OF CONTRACTS. [BOOK III. which authorize this distinction, has been very much discussed, and very variously decided. The statute of frauds being intended to prevent frauds, courts are generally reluctant to permit it to be so applied as to work a fraud. This cannot be always prevented. But the endeavor to prevent it, by construing the promise as original and not collateral, has sometimes led to dicta and per- haps to decisions which are hardly to be reconciled with any reasonable interpretation or application of the statute. If we collate the cases which relate to this question, and espe- * 10 cially those which seem to have been * most carefully con- sidered, we may draw from them this rule : that where the promise to pay the debt of another is founded upon a new consid- eration, and this consideration passes between the parties to this promise, and gives to the promisor a benefit which he did not enjoy before, and would not have possessed but for the promise, then it will be regarded as an original promise, and therefore will be enforced, although not in writing, (m)^ Thus, if the property of the debtor be attached, and the attachment be withdrawn at the request of the guarantor, this is a good consideration to sup- port the guaranty, but not enough to make it an original promise. But if the property be not only relieved from attachment, but delivered to the guarantor at his request, this may suffice to make it an original promise, (i-) want of knowledge of the fraud of the Hampden Guards, of which the defendant guarantor, in the two cases. Coffman n. was commander. During the dinner the Wilson, 2 Met. (Ky.) 542, and Millett v. servants of the plaintiff came round to Parker, id 608. collect pay When about to call upon the ()() In Tileston v. Nettleton, 6 Pick. Guards, the defendant told them they 509, it appeared that the plaintiff, who need not call upon them, for he would he was an innkeeper, on the 4th of July, 1825, responsible for them. The action was furnished a dinner for a public celebration, brought against the defendant to recover He received his directions from a com- for the dinner furnished to the Guards, mittee of arrangements, of which the de- It was held, that the defendant's promise feudant was a member. It was understood was not an original, but a collateral un- that every one who dined was to pay for dertaking, and therefore within the statnte his own dinner, and the committee were of frauds. See also Cahill v. Bigelow, 18 to incur no liability. Among those who Pick. 369. dmed was a military company, called the {v) Nelson v. Boynton, 3 Met. 396, 1 Prime v. Koehler, 77 N. Y. 91 , Britton v. Angier, 48 X. H. 420 ; Wvman v. Good- rich, 26 Wis. 21 , Green i'. Brookins, 23 Mich. 48 ; Johnson v. Knapp. 36 la. 616 ; Goetz V. Foos, 14 Minn 265. If such promise discharges the original debt, it is not within the statute, Britannia Co. v. Zing.sen, 48 N. Y. 247 ; see Harris c. Young, 40 Ga. 65 ; the general rule being that so long as the debt remains the promise is collateral, Stewart v Campbell, 58 Me. 439. —An oral agreement, however, with the debtor or a person other than the creditor, to pay the debt, is valid, Brown v. Brown, 47 Mo. 130; Center i; McQuesten, 18 Kan. 476 ;" if on a new consideration, being an indepen- dent undertaking, Britton v. Angier, 48 N. H. 420; Barker v. Bradley, 42 X. Y. 316 ; Price V. Trusdell, 13 C. E. Green, 200. —An assumption of the debt of a third person, as part of the consideration of property purchased of such third person, is an original promise, and not a guaranty, and need not be in writing. Clopper v. Poland, 12 Neb. 69. — K. " ^^ 10 CH. VIl] GUARANTY. * 11 Whether a guaranty contemporaneous with a note on which it is written is an original or a collateral promise, has been much disputed. We should say that circumstances may make it either the one or the other ; but the weight of recent authority would be in favor of the doctrine that it is to be regarded — primd facie at least — as a collateral undertaking, and therefore as within the statute of frauds. (?/') *The entry in the books of the seller is often of great * 11 importance in determining whether a promise be original or collateral. Being made by the seller it is of course of far greater weight when against him than when it sustains his claim. Sup- pose that A promises to pay B, if B will sell goods which C is to receive. The question may occur whether they were sold to A for C's benefit, or to C on the guaranty of A. If, on examination of the books of B, it appears that at the time of the sale he charged the goods to C, as sold to him, it would be almost decisive against B's claim on A as the original purchaser. But if it was found that he had charged the goods to A, it would still be open to A to show that he had no right to do so. It often happens that a seller makes such a charge with a view of enlarging or asserting his rights, on the supposition that this charge will suffice to fix the liability on the person against whom it is made. But it is obvious that such an entry can have no effect, unless the circumstances of the sale show it to be in conformity with the true rights and obli- gations of the party. Nor would an entry by the seller to one party be absolutely conclusive against his right to claim payment of another as the original purchaser, if he were able to show clearly that the entry was made by mistake to one who was not the buyer, and without any purpose of discharging him who was the buyer, (ic) where this point is discussed at much of the plaintiff's legal right was held not length and with great force, by Shnw, C. to constitute such a new and independent J. ; Skelton v. Brewster, 8 Johns. 376 ; consideration as would give effect to the Stanly v. Hendricks, 13 Ired. L. 86; Ran- promise to pay the debt of another as au die V. Harris, 6 Yerg. 508. In this last original contract. See also Tindall v. case, a sheriff levied an execution upon Touchberry, 3 Strob. L. 177; Blount v. the property of the defendant in the pos- Hawkins, 19 Ala. 100; Fisher v. Cutter, session of a third person, and such third 20 Mo. 206. person agreed verbally, if the sheriff would (w) Manrow v. Durham, 3 Hill (N. release the property, he would pay the Y.), 584 ; s. c. 2 Comst. 533 ; Hall r. Far- execution. Held, that this agreement mer, 5 Denio, 484 : s. c. 2 Comst. 557 ; was bindmg in law and not within the Weed i'. Clark, 4 Sandf. 31 ; Spicer v. statute of frauds. In Durham v. Arledge, Norton, 13 Barb. 542 ; Brewster v. Silence, 1 Strob. L. 5, one A held an execution 11 Barb. 144; s. c. 4 Seld. 207; Parry against B. C, the father of B, promised v. Spikes, 49 \Vis. 384 ; Wilson v. Martin, A that if he would delay enforcing the 74 Ta. 159; Lock v. Reid, 6 Up. Can. execution, he would pay him SlOO in cash, Q. B. 295 See Osborne v. Lawson, 26 and the balance in one year. The promise Mo. App. 549. not being in writing, this mere suspension (s) In Matthews v. Milton, 4 Yerg. 11 » 12 THE LAW OF CONTRACTS. [bOOK III. Whether a contract is collateral or original, may be a question of construction, and then it is for the court, but it is often re- garded as a question of fact, and then it is for the jury (y) * 12 * Sales by a factor, with a guaranty of the price from the factor to' the owner, are common in all commercial coun- tries. In Europe they are commonly called " del credere" con- tracts ; and the commission charged by the factor, and intended to cover not only his services in selling, but his risk in insuring the payments, is called a " del credere commission, " as we have remarked before ; but this phrase is seldom used here, although this kind of contract is very common. It is, in one sense, a promise to pay the debt of another ; and it has been said by Eng- lish courts that it must be in writing. (2;) This doctrine, however, would not be held in England now, (a) and so far as the question has been adjudicated in this country, it has been held, as we have already stated, to be an original promise, and therefore enforce- able at law, although not in writing, (h) The promisor in fact receives a direct consideration for this precise promise from the promisee. SECTION IV. OF THE AGREEMENT AND ACCEPTANCE. The contract of guaranty, like every other contract, implies two parties, and requires the agreement of both parties to make it valid. In other words, a promise to pay the debt of another is not valid unless it is accepted by the promisee, (c) Language is .576, it appeared that A and B being in Conolly v Kettlewell, 1 Gill, 260 , Hop- the plaintiff.-;' store together, A told the kins v Richardson, 9 Graft. 48.5 ; Cutler plaintiffs he would pay for any article B v. Hiutou, 6 Rand. (Va.) 509; Leland v. might take up, and B thereupon pur- Creyon, 1 McCord, 100. chased several articles, which the plain- {"/, ) .See Sinclair i;. Richardson, 12 Vt. tiffs charged to A and B. Held, that the 33 , Flanders v. Crolius, 1 Duer, 206. promise of A was within the statute of [z) Chitty on Contracts, 196; Gall v. frauds, as being a promise to pay the Comljer, 1 j". B. iMoore, 279. debt of B ^//Ve'-, if the articles had been (a) Couturier v. Ha.stie, 16 E. L. chargeil to A alone, for then it would not & E 5G2 ; s. c 8 Exch. 40 have been B's debt. See also Gardiner (h) See an^e, vol. i. p. *92, note (c). V. Hopkins, .5 Wend. 23 ; Graham v (c) Mozlev v. Tinkler, 1 C. M. & R. O'Niel, 2 Hall, 474; Porter y. Langhorn, 692; Mclver v. Richard.son, 1 M. & Sel. 2 Bibb, 63 ; Flanders v. Crolius, 1 Duer, .5.57. A mere overture or offer to guar- 206. But where A requested B to .sell antee is not binding unless accepted, goods to C, promising by parol to indorse Chitty on Cont. 447, n. (1 ) ; Caton v. C's note for the price, it was held, that Shaw', 2 Har. & G. 13 : Menard v Scud- this promise was within the statute of der, 7 La. An. 385; McCollura v. Gushing, frauds, and therefore void. Carville ;-. 22 Ark. 540. Crane, 5 Hill (N. Y.), 483. See also 12 CH. VII.J GUARANTY. * 13 sometimes used by courts and legists which might seem to mean that there were cases of guaranty which need not be accepted ; but this is not accurate , there are cases in which this accept- ance is implied and presumed, but there must be * accept- * 13 ance or assent, expressed or implied, or there can be no contract. The true questions are, when must this acceptance be express and positive, and in what way and at what time must it be made when an express acceptance is necessary. And these questions have sometimes been found to be very difficult. If one goes with a purchaser, and there says to the seller, " Furnish him with the goods he wishes, and I will guarantee the payment, " and the seller thereupon furnishes the goods, this would be a sufficient acceptance of the guaranty, and a sufficient notice to the guarantor. All the parts of the transaction would be connected, and could leave no doubt as to its character. But if the guaranty were for a future operation, perhaps for one of uncertain amount, and offered bv letter, there should then, according to the weight of authority, be a distinct notice of acceptance, and also a notice of the amount advanced upon the guaranty, unless that amount be the same that is specified in the guaranty itself. ^ The 1 Much diversity of reasoning and conclusion appears in the decisions on this sab- ject. It is generally admitted that notice that the guaranty has heeu accepted is not necessary in all cases. As where the guaranty is contemporaneous with the deht or obli- gation guaranteed aud forms part of the same trausaction, or where the transaction is .so connected that the guarantor necessarily has information that the guaranty has been acted on. Wildes c Savage, 1 Stor}', 22 ; Killian v. Ashlev, 24 Ark. 511 ; Solary V. Stultz, 22 Fla. 263; Bechtold v. Lyon,' 130 Ind. 19-1; Thompson v. Glover, 78 Kv. 193; Mitchell i: McCleary, 42 Md" 374; Davis Sewing Machine Co. f. Jones, 61 Mo. 409; Wells v. Davis, 2 Utah, 411. "A guaranty may ... be for an existing debt, or it may be supported by some consideration distinct from the advance to the principal debtor, passing directly from the guarantee to the guarantor. In the case of the guaranty of an existing deljt, such a consideration is necessary to support the undertaking as a binding obligation. In both these cases no notice of assent, other than the performance of the consideration, is ueces-sary to perfect the agreement " Davis V Wells, 104 U. S. 1.59, 165. So if the guarantee writes the guarantor, offering to sell goods or advance money if the latter will guarantee payment, and the guaran- tor writes agreeing so to do. this acceptance completes a bilateral contract, and further notice is unnecessary Cooke v. Orne, 37 111. 186 ; Davis v. Wells, 104 U. S. 159, 16G. See also Dover Stamping Co. v. Noyes, 151 Mass, 342, 345. Where, however, the guaranty relates to future advances, it has been generally, (though hy no means uniformly), held that the guarantee must give notice of accept- ance. Two principal reasons have been given for this : hrst, that the offer to guarantee, like every other offer, needs an acceptance in order to give inception to a contract; second, that it is an implied condition of the guarantee, that notice shall he given that it has been or is about to be acted upon. The first reason is that given by the Supreme Court of the United States. Davis v. Wells, 104 U. S. 159, 164; Davis, &c. Co. I'. Richards, 115 U. S. 524, and in many of the cases cited below It is, however, obviously founded on an erroue. Ward, 4 Johns. Ch. 123, 131 ; Kent r. Matthews," 12 Leigh, 573. In re Babcock, 3 Story, 393. And in some States by statute the .surety is discharged if the creditor after formal notice to sue the principal fails to do so for a specified time. The terms of such a statute must be strictlv complied with by the surety if he wishes to avail himself of it. See Halstead v Brown, 17 lud. 202, Lang- don V. Markle, 48 Mo. 357 , Diff v. Wevmouth, 40 Ohio. St. 101. 24 CH. VII.] GUARANTY. 24 difficult to resist the surety's claim to be discharged. (2;) * In 1816 it was said by the Supreme Court of New York, * 24 in a case where such facts were pleaded and demurred to, that the plea was good, and the defence sufficient, {a) Chancellor Kent has questioned the law of this case, and it is said that two of the judges of the court afterwards retracted their opinion. But in 1833, the Supreme Court of the same State seemed to hold the same views. ^ In 1811 this court decided, that a mere delay in (z) In the Trent Navigation Co. v. Harley, 10 East, 35, Lord Ellenhorough said : " The only question is, whether the laches of the obligees, in not calling upon the principal so soon as they might have done, if the accounts had been properly examined from time to time, be an estop- pel at law [in an action] against the sure- ties '* I know of no such estoppel at law, whatever remedy there may be in equity." And in Dawson v. Laws, 23 E. L. & E. 365, the \^ice-Chancellor said, that in or- der to discharge sureties for the faithful performance of duties by their principal, from their obligation, there must be such an act of connivance as enabled the party to get the fund in his hands, or such an act of gross negligence as to amount to a wilful shutting of the person's eyes to the fraud which the party was about to com- mit, or something approximating to it. («) Pain V. Packard, 13 Johns. 174. And see People v. Jansen, 7 id. 336. In Herrick v. Borst, 4 Hill (N. Y.), 650, it was held, that although the creditor neg- lect to prosecute the principal after a request by the surety, this will not dis- charge the surety, if the principal was then insolvent. And the surety, in order to establish a defence of this kind, must show clearly that at the time the request was made, the debt could have been collected of the principal. Cowen, J., then observed : " The view taken of the question in Huff- man V. Hulbert, 13 Wend. 377, the only case in this court where the kind or de- gree of insolvency on which the surety is to be discharged has been noticed, is not inconsistent with the direction given at the circuit. Mr. Justice Nelson there said, the rule is founded on the a.«suinption that the debt is clearlij collectible by suit ; and upon this ground only can tlie rule be de- feuded. Again, he says, there must he something inore than an ability to pay at the option of the debtor. Among other reasons he mentions the surety having a remedy of his own by payment and suit, a reason which, as I mentioned, would in other cases deprive the party cora])laining of all claim ; for in no other case that I am aware of can he demand compensation or raise a defence grounded on his own neglect. What principle such a defence should ever have found to stand upon in any court it is dimcult to see. It introduces a new term into the creditor's contract. It came mto this court without precedent (Pain V. Packard, 13 Johns. 174), was after wards repudiated even by the Court of Chancery (King v. Baldwin, 2 Johns. Ch. 554), as it always has been both at law and equity in England ; but was restored on a tie in the Court of Errors, turned by the casting vote of a lavman. King v. Baldwin, 17 Johns. 384.' Plait, J., and Yates, J., took that occasion to acknowl- edge that they had erred in Pain v. Pack- ard, as Senator Van Vechten showed most conclusively that the whole court had done. The decision was obviously erroneous in another respect, as was also shown by that learned senator. It overruled a previous decision of the same court in Le Guen v Goverueur, 1 Johns. Cas. 492, on the ques- tion of res judicata ; necessarily so, unless it be conceded that the defence belongs exclusively to equity. I do not deny that the error has become inveterate, though ithas never been treated with much favor. A dictum was referred to on the argument, in the Manchester Iron ]Man. Co. i'. Sweet- ing, 10 Wend. 162, that the refusal to sue is tantamount to an agreement not to prosecute the surety The remark meant, however, no more than tliat such a neglect as amounts to a defence is like the agree- ment not to sue in resjject to being receiv- able under the general issue. The judge was speaking to the question whether the defence should not have been specially ])leaded, as it wa.s in i'ain v. Packard. On the other hand, it has often been said that the defence should not l)e encouraged, but rather discountenanced ; and several de- cisions will be found to have proceeded on this ground." 1 And it is now settled law in that state. Equitable Life Ass. Soc. v. Bostwick, 100 N. Y. Colgrove v. Tallman, 67 N. Y. 95; 628, 629. But in Newccmib v. Hale, 25 '^0 THE LAW OF CONTRACTS. [book III. calling on the principal will not discharge the surety. (6) * 25 Of * this there seems no question ; and the objection to dis- charging him where he requests a collection of the debt and is injured by the refusal, rests upon the right and power of the surety to pay the debt himself whenever he pleases, and then take his own measures against the debtor. It would be, however, un- just to hold him liable on this ground, where he has been injured by the certain fault of the party to whom he makes the guar- anty, (c) And from a consideration of the cases, and the reasons on which they rest, we think this rule may be drawn : that a surety is discharged where the creditor, after notice and request, has been guilty of a delay which amounts to negligence, and by this negligence the surety has lost his security or indemnity, (cc) If, however, in that case the creditor should show full knowl- edge and an equal negligence on the part of the guarantor, or his assent, or that security was given him by the principal debtor, it would be difficult to point out any acknowledged principles which would lead to his discharge, (d) In some of our States statutory {h) Teople V. Jansen, 7 Johns. 336. The autliorities all agree upon this point, see note (/'), j/ost. (c) The better authorities agree that if the surety cau jjositively and clearly show an injury to liimself by the failure of the creditor to prosecute after request, he is exonerated, jiro tanto. Row v. Pul- ver, 1 Coweu, 246 ; State v. Reynolds, 3 Mo. 95 ; Manchester Iron Co. r. Sweeting, 10 Wend. 162 ; Goodman v. Griffin, 3 Stew. (Ala.) 169; Hogaboom v. Herrick, 4 Vt. 131 ; Johnston u. Thompson, 4 Watts, 446; Wetzel V. Sponsler's Exr's, 18 Tenu. St. 460; Lang v. Brevard, 3 Strob. Eq. 59. But see p.* 23, note 1, anle. In Locke V. United States, 3 Mason, 446, it was held, that the neglect of Dhe I'ostmaster- General to sue for balances due by post- masters, within the time prescribed by law, although he thereby is rendered personally chargeable with such balances, is not a discharge of the postmasters or their sureties upon their official bonds. And in Bellows v. Lovell, 5 Pick. 307, the Supreme Court of Mas.sachusetts held, that a refusal of the creditor to sue the princi- pal upon a mere recjuest of the surety, unaccompanied with an offer of indem- nity against the cost and charges of the suit, is not a defence at law to a suit against the surety, notwithstanding the principal may afterwards have become insolvent. So in Davis v. Huggins, 3 N. H. 231, where one who had sigued a promissory note as surety requested the payee to collect the money of the princi- pal, but the payee neglected so to do until the principal became insolvent ; it was held, that the suretv was not discharged. See Strong v. Foster, 17 C. E. 201. {cc) Shimer v. Jones, 47 Peuu. St. 268 ; Ward V. Stout, 32 III 399 ; Strickler v. Burkholder, 47 Penn. St. 476. (d) And it has been expressly held, that if the extension of payment is given to a principal, at tlie instance of the surety or with his consent, the suretj- is not dis- charged. Suydam v. Vance, 2 McLean, 99 ; Solomon v. Gregory, 4 Harrison, 112 ; New Hampshire Savings Bank v. Colcord, 15 N. H. 119. See al.so Day v. Ridgwav, 1 7 Penn. St. 303 ; Weiller v. Hoch, 25 Pen'n. St. 525. Or if the surety, being informed of such an arrangement, assents to it, it is no defence to him. Tyson v. Cox, Turn. & R. 395 ; Smith ?•. Winter, 4 M. & W. 519, La Farge v. Herter, 11 Barb. 159; Woodcock v. Oxford & Worcester Railway Co. 21 E. L. & E. 285; s. c. 1 90 N. Y. 326, it was held that the assignor and guarantor of a bond secured by mortgage was not discharged by the failure of the assignee to sell the laud after notice, though the land depreciated in value and the obligor became iu.solvent. Pain v. Packard, and the cases which have followed it, were distinguished. 26 CH. VII.] GUARANTY. 26 provisions give a surety a right to require the creditor to proceed against the principal. * A guarantor or surety has a right to expect that the * 26 creditor will not wantonly lose or destroy his claims against the principal debtor, with the intention of falling back upon the liability of the guarantor, (e) For the guarantor promises only to pay the debt of another, in case that other does not pay it ; and this contract is held to imply some endeavor and some diligence on the part of the creditor to secure the debt from the principal debtor. (ee) To this the guarantor is entitled; but this does not give him the right to debar the principal debtor from all favor or indulgence. It was once uncertain whether a forbearance of the debt did not discharge the guarantor ; but it is now well settled that a mere forbearance, leaving to the creditor the power of put- ting his claim in suit at any time, does not have this effect. (/) ^ Drewry, 521 , Dubuisson v. Folkes, 30 Miss. 432; Shook v. State, 6 Ind. 113; Bangs V. Mosher, 23 Barb. 478. See Citv Bank v. Phelps, 86 N. Y. 484. Or if the surety has been amply secured and indem- nified by the principal, even if the exten- sion was made without his consent. Smith V. Estate of Steele, 25 Yt. 427. Otlier- wise if he assents in ignorance of the real facts. West v. Ashdown, I Bing. 164; Robinson v. Offutt, 7 Mour. 541. See also ante, p. * 17, note (m). (e) N. H. Savings Bank v. Colcord, 15 N. H. 119; Holt i\ Bodey, 18 Penu. St. 207 ; Perrine v. Fireman's Ins. Co. 22 Ala. 575. (ee) Dyer v, Gibson, 16 Wis. 557. {/) It is well settled that mere delay without fraud, or agreement with the principal, does not discharge the surety. Hunt V. United States, 1 Gallison, 32 ; Naylor v. Moody, 3 Blackf. 93; Hunt v. Bridgham, 2 Pick. 581 ; Allen v. Brown, 124 Mass. 77; Towusend v. Riddle, 2 N. H. 448; Leavitt v. Savage, 16 Me. 72; Freeman's Bank v. Rollins, 13 id. 202; Johnston v. Searcy, 4 Yerg. 182 ; Dawson r. Real Estate Bank, 5 Ark. 283; Moiit- gomerv v. Dillingham, 3 Sm. & M. 647; I'eople V. White, 1 1 111. 342 ; May v. Reed, 125 Ind. 199; Huff v. Slife, 25 Xeb. 448; Irvine v. Adams, 48 Wis. 468 ; Dorman i'. Bigelow, 1 Fia 281. To have such effect, there must be an actual agreement be- tween the creditor and the principal to extend the time of pavment. Hutcliinsoa V. Moodv, 18 Me. 393; Fuller v. Milford, 2 McLean, 74; Greelv v. Dow, 2 Met. 176; Wagman v Hoag, 14 Barb. 232; Campbell c. Baker, 46 Peun. St. 263. And the agreement must be upon suf- ficient consideration, and must amount in law to an estoppel upon the creditor, sufficient to prevent him from beginning a suit before the expiration of the ex- tended time ; and when such an agree- ment is made the surety is discharged. Leavitt v. Savage, 16 Me. 72 , Lime Rock Bank v. Mallett, 34 id. 547 ; Bailev v. Adams, 10 N. H. 162; Hovt v. French, 4 Foster (N. H.), 198; Joslyn v. Smith, 13 Yt. 353; Wheeler v. Washburn, 24 id. 293 ; Chace v. Brooks. 5 Cush. 43 ; Hoff- man V. Coombs, 9 Gill, 284 ; Payne v. Commercial Bank, 6 Sm. & M. 24 ; New- ell V. Hamer, 4 How. (Jliss.) 684 ; Coniaa V. State, 4 Blackf. 241 ; Farmers' Bank v. Raynolds, 13 Ohio, 84; llaynes v. Cov- ington, 9 Sm. & ]\I. 470 ; Anderson v. Mannon, 7 B. Mon. 217; Sawyer v. Pat- 1 But an agreement for forbearance between the debtor and creditor without the surety's consent will discharge the latter. Albion Bank v. Burns, 46 X. Y. 170; Myers V. First Bank, 78 111. 257 ; Amer. &c. Co. v. Gurnee, 44 Wis. 49 ; Buck r. Smiley, 64 Ind. 431 ; Ai»person v. Cro.ss, 5 Ileisk. 481 ; Bonney v. Bonnev, 29 la. 448; Ki'ise v. Williams, 5 Kans. 483 ; Brown v. Propliit, 53 Miss. 649 ; Hogshead v. Williams, 55 Ind. 145 ; Berry v. Pullen, 69 Me. 101 ; Smith v. Sheldon, 35 Mich. 42 ; Swire v. Redman, 1 Q. B. D" .536; McKecknie v. Ward, 58 N. Y. 541; Howell v. Sevier, 1 Lea, 360; Wright V. Watt, 52 Miss. 634 ; Hosea v. Rowley, 57 Mo. 357 ; Byers v Hussey, 4 Col. 515. And see p. *28, note 1, post. 27 THE LAW OF CONTRACTS. [book III. * 27 Thus, the neglect of postmasters to sue for * balances due them does not discharge their sureties. (^) Nor does the continuance in otfice of a cashier or treasurer, by a corporation after discovery of his default, or non-notice thereof to the surety, necessarily discharge the surety, {gg) Where a creditor received the interest in advance for sixty days, this did not discharge the surety ; for though it undoubtedly signified that the debt was not to be demanded within that period, yet it might have been at any moment, (h) ^ So where a bank renewed a note on receiving twenty-five per cent, and the interest on the remainder for a cer- tain period, the note lying in the bank overdue, the surety was not discharged, (t) 2 terson, 11 Ala. 523; Gray's Exr's v. Brown, 22 id. 262 ; Moss v. Hall, 5 Exch. 46; riiillips v. Rounds, 33 Me. 357; Thomas v. Dow, id. 390 ; Turrill v. Boyn- ton, 23 Vt. 192 ; Bangs t: Strong, 4 Corast. 315; Miller v. Stem, 12 Teuu. St. 383; Mitchell V. Gotten, 3 Fla. 134 ; Burke v. Cruger, 8 Tex. 60; Hogshead v. Wil- liams, 55 lud. 145 ; Jaffray v. Crane, 50 Wis. 349. Therefore a surety in a specialty is not discharged by a parol agreement between the creditor and the principal on the day the debt became due, to allow the principal one year more for payment. Tate v. Wymoud, 7 Blackf. 240. But "the agreement for extension must not only be valid and binding in law, but the time of the extension must be definitely and precisely fixed. MiUer v. Stem, 2 Peuu. St. 286 ; Parnell v. Price, 3 Rich. L. 121 ; Waddliugtou v. Garv, 7 Sm. & M. 522 ; Gardner v. Watson, 13" 111. 347 ; Wacers v. Simpson, 2 Gilman, 570 ; People V. McHattou, id. 638 ; McGee v. Metcalf, 12 Sm. & M. 535. And the sure- ties are not discharged by the giving of time to the principal, if a right has been reserved in the contract to proceed against the sureties at anv time. Wvke v. Rogers, 12 E. L. & E. 162 ; s. c. 1 be Gex, M. & G. 408 ; Viele v. Hoag. 24 Vt. 46 ; Hub- beU V. Carpenter, 1 Seld. 171 ; Wagman V. Hoag, 14 Barb. 232. (9) See Locke v. United States, 3 Ma- son, 446 ; cited ante, note (c), p. *25. (gq) Pittsburgh, &c. R. R. Co. v. Shaef- fer, .59 Pa. St. 350. (h) Oxford Bank v. Lewis, 8 Pick. 458. (/) Blackstone Bank r. Hill, 10 Pick. 129. And the ground of this decision is tlius stated by the court : " The first ob- jection that an extension of credit was given to the principal without the consent of tlie surety, if made out, would be a good defence, but it is not supported iu point of fact. The principle is stated iu Oxford Bank v. Lewis, 8 Pick. 458, that to discharge the surety, the contract for new credit must be such as will prevent the holder of the note from bringing an action against Uie principal. The plain- tiffs were not precluded, during such sup- posed renewed term of credit, from suing the principal in the case un(ier consider- ation. As to the understanding that the plaintiffs were not to collect the notes unless they should want money, that was a matter of courtesy rather than of legal obligation. The strongest circumstance showing a renewed credit is the receiving of interest in advance ; but in the case of (Oxford Bank v. Lewis, where that point was directly adjudged, it was held, tluit that circumstance did not tie the hands of the plaintiffs, if at any time they tiiought it necessary for their security to bring an 1 The weight of authoritv seems at variance with this decision. Maher r. Lanfrom, 86 111. 513; Kaler v. Hise, 79 lud. 301 ; Christner v. Brown, 16 la. 130; Hubbard v. Ogden, 22 Ivans. 363 ; Dubuissou v. Eolkes, 30 ]\Iiss.432 ; Merchants' Ins. Co. v. Hauck. 83 Mo. 21 ; Wright v. Bartlett, 43 N. H. 548; People's Bank v. Pearsons, 30 Vt. 711 ; and see Rock Bank v. Mallett, 34 Me. 547. Decisions in accord with Oxford Bank r. Lewis, cited in note (A), supra, are Mariners' Bank v Abbott, 28 Me. 280; Agricultural Bank v. Bishop, 6 Gray, 317 ; Coster v. Mesner, 58 Mo. 549. 2 An agreement, not under seal, to extend the time of payment of a note, interest to be paid at the original rate, a portion of it to be applied to the extinguishment of the debt, is without consideration, not binding on the holder, and does not discharge a surety. Wilson v. Powers, 130 Mass. 127. — K. 28 CH. VII.] GUARANTY. * 28 Where there is an entry *on the docket of the court, *28 made by counsel to the effect that no action shall be brought on the original debt, this discharges the surety, because it will be enforced by the court, and no such action will be permitted. It is therefore equivalent to a discharge of the debt by the credi- tor, which of course operates as a discharge of the guarantor, {k) Such an arrangement made with the principal debtor without the consent of the surety, although innocently done, may work an injury to the surety. It is obvious that a surety is discharged by indulgence to a principal, only when the creditor knows the relation of the par- ties. Hence if two or more are promisors of a note, and some are principals and others are sureties, but this does not appear on the note and is not known to the holder, and he gives time to the promisor who is principal, this does not discharge those who are sureties. (/) Any valid extension of the credit, made in such a way as to be binding on the creditor, and made without the assent of the guarantor, is held to discharge him. (7;?-) ^ action." See also Strafford Bank v. no assent to any other course can be pre- Crosby, 8 Greenl. 191. But these cases sumed. A similar doctriue was held in seem to rest on the ground of usage of the Savings Bank v. Ela, 11 N. H. 336. So in bank, and tliat the same was known to Gifford v Allen, 3 Met. 255, it was deter- the sureties, and acquiesced in by them, mined that if the holder of a note payable And it was accordingly held, in Crosby v. on demand makes a valid agreement with Wyatt, 10 N, H. 318, that if a note is the principal promisor, without the con- made payable to a bank, where a regular sent of the surety, to receive payment by usage exists to receive payment by instal- yeai'ly instalments, he thereby discharges ments, at regular intervals, with the inter- the surety. And see further, Draper v. est on the balance in advance, there is Komeyn, 18 Barb. 166; Lime Hock Bank presumptive evidence of the assent of a v. Mallett, 34 Me. 547. surety that payment may be delayed, and (k) Fullam v. Valentine, supra. received by instalments according to such (/) Wilson v. Foot, 11 Met. 285. usage, until the contrary is shown. But (m) Dubuisson y. Folkes, 30 Miss. 432 ; this principle cannot be held to apply to Shook v. State, 6 Ind. 113; Bangs u. any delay beyond such regular usage, and Mosher, 23 Barb. 478. ^ A binding agreement with the principal extending the time of payment for bow- ever short a time di.'^charges the surety. Swire v. Redman, 1 Q. B. I). 536 ; Byers v. Hussey, 4 Col. 515; Berry v. Pullen," 69 Me. 101 ; Smith v. Shelden, 35 Mich. 42; AVright !\ Watt, 52 Miss. 634; Hosea v. Kowley, 57 Mo. 357; Howell r. Sevier, 1 Lea, 360. And see p. *26, note (/;) and 1, ante. But, though the time may be short it must be definite. King v. Haynes, 35 Ark. 463; Winne v. Colorado Springs Co. 3 Col. 155; Woolfolk r. Plant, 46 Ga. 422; Beach v. Zimmerman, 106 Ind. 495; Morgan r. Thompson, 60 la. 280. Within this rule it has been held that agreements were too indefinite to be binding, and hence too indefinite to discharge the surety, when made to give time '' beyond the day of ma- turity," Ward V. Wick, 17 Ohio St. 159; or to forbear "a while longer," Jenkins v. Clarkson, 7 Oliio, 72 ; or " until some time in the summer," Miller v. Stem, 2 Pa. St. 286 ; or until " after harvest." Fiudley v. Hill, 8. Ureg. 247. Contra, Moulton v. Pcsten, 52 Wis. 169. Of course if the surety consent to the extension he is not discharged. Rockville Nat. Bank v. Holt, 58 Conn. 526 ; Briggs v. Norris, 67 Mich. 325; Rutherford c. Brachman, 40 Ohio St. 604. And even if the surety does not consent, if he afterwards, with full knoAvledge of the facts, promisee to pay the debt, he is liable. Smith v. Winter, 4 M. & W. 454 ; Ellis 29 * 29 THE LAW OP CONTRACTS. [BOOK III. SECTION VII. OF NOTICE TO THE GUARANTOR. A <7iiaranty may be extinguished or discharged by the fact that the guarantee gives no notice to the guarantor of the failure of the principal debtor, and of the intention of the guarantee to enforce the guaranty. ^ For a guarantor is entitled to reasonable notice of this. What the notice should be, or when it should be given, is not settled in the case of a mere guarantor as it is in the case of an indorser, but the reason and justice are the same in both cases, and equally require notice, in order that the guarantor may at once take what measures are within his power to secure * 29 or indemnify himself: The question of reasonable * time is a question of law, and the cases are very few which would help us in determining what time would be reasonable. But from the authorities and the reason of the thing, we deduce these rules : the guarantor is entitled to this notice, but cannot defend himself by the want of it, unless the notice and demand have been so long delayed as to raise a presumption of waiver or of payment, or unless he can show that he has lost by the delay opportunities for obtaining securities which a notice or an ear- lier notice would have given him. (n) ^ In this latter case a very (n) Allen r. Eightmere, 20 Johns. 366 ; r. Camp, 22 Ala. 659; Lonisville M. Co. Douglass V. Howland, 24 Wend. 35 ; Far- v. Welsh, 10 How. 461 ; Dunbar v. Brown, row i,-. Kespess, 11 Ireil. L. 170; Wood- 4 McLean, 166 ; F. & M. Bank r. Kerche- stock Bank v. Downer, 1 Williams, 539 ; val, 2 Mich. 504 ; La Rose v. Logansport Yancey v. Brown, 3 Sneed, 89 ; Dowley Bank, 102 Ind. 332. V. Bibb, 2 Stew. 63 ; First Nat. Bank v. Whitman, 66 111. 331 ; Williams v. Boyd, 75 Ind. 286; Porter v. Hodenpuyl, 9 Mich. 11; Bramble i'. Ward, 40 Ohio St. 267. Contra is Walters v. Swallow, 6 Wliart. 446. See also Warren v. Fant's Trustee, 79 Ky. 1. 1 A surety is not entitled to notice, Harris c Newell, 42 Wis. 687 ; Central vSavings Bank v. Shiiie, 48 Mo. 456 ; McMillan v. Bull's Head Bank, 32 Ind. 11 ; Atlantic, &c. Tel. Co. V. Barnes, 64 N. Y. 385 ; nor in some States a guarantor, Barhvdt v. Ellis, 45 N. Y. 107 ; Gage v. Lewis, 68 111. 604 ; Gage i.-. Mechanics' Bank, 79 111. 62; Kauzt- man v. Weirick, 26 Ohio St. 330. If the liability, however, is contingent, there must be reasonable notice. ]March v. Putney, 56 N. H". 34. See Clay v. Edgerton, 19 Ohio St. 549 : Furst, &c. Mfg. Co. v. Black, ill Ind. 308. Thus in a continuing guaranty notice of the debtor's default and of the extent of the guarantor's liability should be given to the guarantor within a reasonable time after all transactions are closed. Davis Sewing Machine Co. v. Mills, 55 la. 543. — That reasonable notice is a ques- tion for the jury, see Craig v. Parkis, 40 N. Y. 181. — K. •^ In McMillan v. BuU's Head Bank, 32 Ind. 11, the rule is stated to be that a surety is not entitled to notice of the default of the principal, however such want of notice may, in fact, injure him ; but that a guarantor should be given notice, in default of which he will be discharged, to the extent that he can prove that he has suffered damage. 30 CH. VII.] GUARANTY. * 30 brief delay, of a day or two only, might be fatal to the claim of the guarantee, if it appeared that notice could easily have been given, and would have saved the guarantor from loss. The ques- tion would be, in such a case, was there actual negligence, caus- ing actual injury, (o) We think that cases which appear to hold that no notice needs to be given to an absolute guarantor, (oo) or to a guarantor of a note, (op) are to be interpreted in accordance with the principles above stated. A demand on the principal debtor, and a failure on his part to do that which he was bound to do, are requisite to found any claim against the guarantor ; and notice of the failure, as we have said, must be given to him. (j)) But if the guaranty is for the payment of a note, and is absolute and unconditional, it has been held that neither demand nor notice is necessary to charge the guarantor ; (q) but we should have some question of this. If the guaranty be that the debt or note is collectible, legal proceedings against all the principals are requisite to make the guarantor liable, (7-) because otherwise it cannot be certainly known that the note cannot be collected. * SECTION VIII. *30 OF GUARANTY BY ONE IN OFFICE. If a guaranty be made by one expressly in an official or special capacity, as attorney, executor, guardian, assignee, trustee, church- warden, or the like ; and the guarantor holds such office, and has a right to give the guaranty in his official capacity, then he is (o) Oxford Bank v. H.avnes, 8 Pick, -waived bv the surety in his guaranty. 423 ; Thomas v. Davis, 14 Tick. 353 ; Tal- Bickford v. Gibbs, 8 Cush. 1.^4. boty. Gay, 18 id. 534; Whiten r. Mears, (9) Readr. Cutts, 7 Greenl. 186; Breed 11 Met. 563; Farmers' & Mechanics' r. Hillhouse, 7 Conn. 523; contra, Greene Bank v. Kercheval, 2 Mich. 504; Bick- r. Bodge, 2 Hamni.498 ; Beebe y. Dudley, ford V. Gibbs, 8 Cush. 154. 6 Foster (N. H.), 259. {00) Voltz V. Harris, 40 111. 155; Gage (r) Loveland v. Shepard, 2 Hill (N. Y.), V. Mechanics', &c. Bank, 79 111. 62 ; Barker 139 ; Van Derveer v. Wright, 6 Barb. 547. V. Scudder, 56 Mo. 272 ; Gammell r. Par- See also Blanchard v. Wood, 26 Me. 358 ; ramore, 58 Ga. 54. Day v. Elmore, 4 Wis. 190 ; Bosman v. (op) Bowman i\ Curd, 2 Bush, 565. Akelev, 39 Mich. 710. See French v. ip) Douglass V. Reynolds, 7 Pet. 114. Marsh, 29 Wis. 649; Schmitz v. Lang- But this demand and notice may be haar, 88 N. Y. 503. Gaff V. Sims, 45 Ind. 262 ; Rockford Bank v. Gaylord, 34 Ta. 246. Notice need not be given if the principal is insolvent, Montgomery v. Kellogg, 43 Miss. 486 ; Brackett v. Rich, 23 Minn. 485; Bashford v. Shaw, 4 Ohio St. 263. — K, 31 * 31 THE LAW OF CONTRACTS. [BOOK III. only bound in that capacity. But if he does not hold such office, or if he holds the office, but has no right to give the guaranty in that capacity, then he is personally liable, and such designation is merely surplusage, or words of description, (s) SECTION IX. OF REVOCATION OF GUARANTY. A promise of guaranty is always revocable at the pleasure of the guarantor by sufficient notice, unless it be made to cover some specific transaction which is not yet exhausted, or unless it be founded upon a continuing consideration, the benefit of which the guarantor cannot or does not renounce. If the promise be to guarantee the payment of goods sold up to a certain amount, and after a part has been delivered, the guaranty is revoked, it would seem that the revocation is good, unless it be founded upon a consideration which has been paid to the guarantor for the whole amount ; or unless the seller has, in reliance on the guar- anty, not only delivered a part to the buyer, but bound him- * 31 self by a contract enforceable at law to deliver the * residue. And if the guaranty be to indemnify for misconduct of an officer or servant, this promise is revocable, provided the circum- stances are such, that when it is revoked, the promisee may dismiss the servant without injury to himself on his failure to provide new and adequate sureties, (ss) ^ It seems, however, that a distinction is taken between the power of revocation, when the guaranty is given by parol con- tract, and when it is under seal. In the former case this power is very broadly asserted, but in the latter it is almost wholly denied. An eminent judge says, indeed, that there are no means or mode of revocation of guaranty under seal. (^) But whether this is strictly true may well be doubted. ^ (s) Redhead v. Cator, 1 Stark. 14; (ss) This sentence was quoted, the law Hail V. Ashurst, 1 Cr. & M. 714 ; Burrell therein stated approved, and the case de- V. Jones, 3 B. & Aid. 47 ; Appleton v. cided in accordance with it, in Phillips v. Binks, 5 East, 148 ; Sumner v. Williams, Foxall, L. R. 7 Q. B. 677. 8 Mass. 162. (t) Lord Ellenborough, in Hassell v. 1 That the guarantor of a servant's fidelity by a guaranty under seal may, by pay- ing what is due on the discoverv of his dishonesty, in equity, compel the delivery and cancellation of his bond, see Burgess v. Eve, L. R. 13 Eq. 450, per Malins, V. C. See Sanderson v. Aston, L. R. 8 Ex. 73. 2 There seems no reason for distinguishing a contract of guarantv from anv other 32 CS. Vir.] GUARANTY. * 31 Long, 2 M. & Sel. 370. And see Bai/Ui/ in a conrt of law a letter of revocation to J., in Calvert v. Gordon, 7 B. & C. 809. the obligee would be of no avail, but that So in Hough i^. Warr, 1 C. & P. 151. the proper court for relief was a court Abbott, C J., expressed the opinion that of equity. contract in respect to revocation further than by the equitable doctrine laid down on p. *31, notes (ss) and 1, ante. So long as there is only an offer, death or notice from the offerer revokes it. Offord r. Davies, 12 C. B.- (x. s.; 748; Michigan Bank y. Leavenworth, 28 Vt. 209. Ordinarily when a parol promise is made, guaranteeing a single matter, it is but an offer till acted on, for till then there is no consideration. When it has been acted on, like every other binding contract, it can only be determined in accordance with its provisions or by nmtual consent. Lloyds v. Harper, 16 Ch. D. 290; Hecht v. Weaver, 34 Fed. Kep. Ill ; Hightower v. Moore, 46 Ala. 387; Estate of Rapp V. Phojuix Ins. Co. 113 HI. 390; Eoyal Ins. Co. v. Davies, 40 la. 469; Ker- nochan v. Murray, 111 N. Y. 306 ; White's Ex. v. Commonwealth, 39 Pa. 167. A continuing guaranty contemplates a series of transactions. As each takes place a separate obligation arises as to that, and to that extent what was a revocable offer becomes an irrevocable contract. As to the future, however, death or notice may revoke it. Otford v. Davies, supra ; Coulthart v. Clementson, 5 Q. B. D. 42 ; Michi- gan Bank v. Leavenworth, supra. But, if the promise to guarantee is made for good consideration, or is under seal, there is a contract from the beginning, not merely an offer, and though notice of revocation is given before the guaranty is acted on it would seem ineffectual, for the guarantee has by contract the right to act on it. See cases cited above and in note {t), supra. In Jordan v- Dobbins, 122 Mass. 168, the court lost sight of this, and applying the same rule to a promise under seal which had been correctly applied in Offord V. Davies to a parol offer, held that death revoked the promise. A contrary decision, criticising Jordan v. Dobbins is Estate of Rapp v. PhcEuix Ins. Co. supra. Hvland i;. Habich, 150 Mass. 112, follows Jordan ;;. Dobbins. See also Harris v. Fawcett, L. R. 8 Ch. 866; Grange v. Mills, 19 Up. Can. C. P. 398; Fennell v. Mc- Guire, 21 Up. Can. C. P. 134. Death of one co-surety of a continuing guarantj' for future advances does not dis- charge the other. Beckett r. Addyman, 9 Q. B. D. 783. But where one co-surety had revoked his offer of guaranty before it had been accepted, failure by the guarantee to disclose this fact was held to discharge the other. Potter v. Gronbeck, 117 111. 404. VOL. II. 3 33 32 THE LAW OF CONTRACTS. BOOK III. *32 * CHAPTER VIII. HIEING OF PERSONS. Sect. I. — Servants. In England, a domestic servant who is turned away without notice, and without fault, is entitled to one month's wages, although there be no agreement to that effect, (a) We are [a) Eobinson v. Hindman, 3 Esp. 235. And this is on the ground that a general hiring, that is to say, a hiring without any engagement as to the duration of the service, is presumed to be a hiring for a year, and it will be construed in a court of law to be a hiring on the terras that either party might determine the engagement upon giving a month's notice, and the law implies a promise by the master to pay a month's wages, if he dismiss his servant without cause, without giving such notice. See Fawcett v. Cash, .5 B. & Ad. 904; Lilley v. Elwin, 11 Q B. 754; Nowlan v. Ablett, 2 C. M. & R. 54 ; Beeston v. Coll- yer, 4 Bing. 309 ; s. c. 2 C. & P. 607 ; Spain V. Arnott, 2 Stark. 257 ; Huttman V. Boulnois, 2 C. & P. 511; Holcroft v. Barber, 1 Car. & K. 4 ; Baxter v. Nurse, 1 Car. & K. 10. But this presumption of a yearly hiring may be rebutted by evi- dence showing that such was not the in- tention of the y)arties. Bayley v. Rimmell, 1 M. & W. 506. This was an action by an assistant surgeon agaiust his employer, to recover the amount of salary due him in that capacity. The plaintiff claimed for salary for a hundred and sixty-one days, at the rate of £200 per annum, and he so described his claim in the particu- lars of his demand annexed to the record. No specific contract of hiring was proved, but evidence was given of the service. It appeared that after the plaintiff had been some time in the defendant's em- ployment, he was taken ill, and went to a hospital, where he remained three mouths. He did not return to his employment, nor did the defendant request him to do so. It appeared that the plaintiff had been paid different sums of money, but not at any fixed or definite periods. It was sub- 34 mitted, that upon this evidence it must be taken to be a general hiring, and that in legal estimation that was a hiring for a year, and therefore that no wages were recoverable, as the year's service had not been performed. Sed non allocatur ; and Parke, B., in giving the opinion of the court, observed : " Admittiug that there was some evidence of a hiring, and agree- ing in the proposition that a general hir- ing, if unexplained, is to be taken to be a hiring for a year, I think there is abun- dant evidence iu this cikse to show that there was no hiring for a year. It ap- pears that payments were made, but they were not made according to tiie yearly amount, nor at any definite periods of the year. The parties separated in the mid- dle of the year, and neither did the plain- tiff return, nor did the defendant require him to return and complete the service. If, indeed, the jury ought to have found whether this was a yearly hiring, the learned judge should have been required to leave that question to them ; but there is really nothing to show that the compen- sation was to be paid at the end of the year." The presumption of a yearly hir- ing is not a presumption of laiv, but of fact merely. Cregwell, J., in Baxter v. Nurse, 6 Man. & G. 935. 941, and the pre- sumption of a yearly hiring does not arise where the services of the servant are ex- pre.ssed to be at the will of either party ; as where a bov was hired by a farmer, for his meat and clothes, "so loncf as he had a mind to stop." Rex v. Christ's Parish in York, 3 B. & C. 459. See also Rex v. Great Borden, 7 B. & C. 249. As to what words are suflicient to constitute a yearly hiring, see Emmens i-. Elderton, 26 E. L. & E. 1. There was formerly a doubt CH. vrii.] HIRING OF PERSONS. 38 not * aware that a similar rule exists in this country; but * 33 where the wages are payable at definite periods, as by the week or by the month, the contract for each period would perhaps be considered as so far entire, that a servant leaving without cause after the month had commenced, could not recover wages for his services within that month ; and a master turning off his servant without cause would be bound to pay him his wages through the month. ^ This, however, may be doubted, unless there was some agreement expressed or distinctly inferable from the contract, or a custom or usage were proved which the par- ties might be considered as having contemplated. (5)^ It has whether a contract to serve during life was valid, but it seems that such contract is not itself illegal. Lord Ahinger, in Wallis V. Day, 2 M. & W. 281. See further, 1 Bl. Com. 425, u. (1), (Christian's ed.). (b) In England this doctrine rests on the ground that the parties may make the contract with reference to general usage, which thereby ])ecomes a part of the con- tract. See Turner v. Robinson, 5 B. & Ad. 789 ; Ridgway v. Hungerford Market Co. 3 A. & E. 171. In this country it has been held, that a contract to work " for eight months for $104, or $13 a month," was so far an entire contract, that if the plaintiff left without cause before the eight months, he could not recover for any part of the time ; and although he had worked more than a month, he was not allowed to recover for a month, since there was no provision that he should be paid monthly. Reab v. Moor, 19 Johns. 337. So, where the plaintiff agreed to work for the defendant " Sfven months at $12 per month," it was held that this was an entire contract ; that $84 were to be paid at the end of the seven months, and not $12 at the end of each month; and that if the plaintiff left without good cause, before the seven months were expired, he could not recover anything for his ser- vices, although the defendant had paid a part during the continuance of the ser- vice. Davis V. Maxwell, 12 Met. 286. In this case, Ilultbard, J., said : " In regard to the contract itself, which was an agree- ment to work for the defendant for seven months, at twelve dollars per month, we are of opinion that it was an entire one, and that the plaintiff, having left the de- fendant's service before the time expired, cannot recover for the partial service per- formed ; and that it differs not in prin- ciple from the adjudged cases of Stark v. Parker, 2 Pick. 267 ; Olmstead v. Beale, 19 Pick. .528; and Thayer v. Wadsworth, Id. 349; which we are unwilling to dis- turb, upon mere verbal differences be- tween the contracts in those cases and in this, which do not affect its spirit. The plaintiff has argued that it was a contract for seven months, at twelve dollars per month, to be paid at the end of each mouth. But however reasonable such a contract miglit be, it is not, we think, the contract which is proved. There is no time fixed for the payment, and the law therefore fixes the time ; and that is, in a case like this, the period when the service is performed. It is one bargain, perform- ance on one part and payment on the other; and not performance and full pay- ment for the part performed. The rate per month is stated, as is common in such contracts, as fixing the rate of payment, in case the contract should be given up by consent, or death or other casualty should determine it before its expiration, without affecting the right of the party. Such contracts for hire, for definite periods of time, are reasonal)le and convenient, are founded in practical wisdom, and have 1 It was so held in Beach v. MuUin, 34 N. J. L 343. 2 A servant whose contract of hiring provides that if he intends to leave his master's employ he will give notice of snch intention and work ten full working days thereafter, and in default thereof forfeit all money that may be due him, cannot recover from tho master wages previously earned, if without sufficient cause he leaves his work without giving the required notice, and remains away so long as to warrant the master in re- garding his absence as an abandonment of his work, and in procuring another pe«son to supply bis place, although tlie servant's intention is to be absentonly temporarily. Naylor v. Fall River Iron Works, 118 Mass. ill?.— K. 35 *34 THE LAW OF CONTRACTS. [book III. * 34 * been held in England, that a hiring " for at least three years at the option of the hirer," at a certain rate by the year, permitted the hirer to end the hiring only at the end of a year, (c) ^ Where the contract is for a certain time, if the master dis- charge the servant before the time, he is still liable, unless the servant has given cause, by showing himself unable or unwill- ing to do what he has undertaken to do. {d) And it is held in loug received the sanction of the law. It is our duty to sustain them when clearly proved." See also Eldridge v. Rowe, 2 (iilnian, 91. So in Nichols v. Coolahan, 10 Met. 449, where a contract was made by N. and C. that N. should have eleven dollars per month and board, so long as he should work for C. ; C. informing X. that he (C.) might not have two days' work for him. N. worked for C. spveral months, and brought an action for his wages, and anne.xecl to his writ a bill of particulars, in which he charged the price agreed on per month, and gave C. credit for a certain sum on account of three weeks' sickness of N., during which time he was unable to work. C. filed in set-off an account against N. for board during his sickness. Held, that the contract was a hiring by the mouth ; that C was not entitled to payment for N 's board during his sickness ; but tliat N. could not re- cover wages during any part of tlie time of his detention from work by sickness. — And wherever the contract shows that the hiring was intended for a longer term, as for a year, tiie mere reservation of wages for a shorter term, as so much per week, or per month, will not control the hiring. Thus, where a farm servant was hired for a year, at three siiillin>;s a week, with lib- erty to go at a fortnight's notice, the con- tract was held to be a hiring for a year, the fortnight's notice plainly showing tliat it was not a weekly hiring. Rex v. Bird- brooke, 4 T. R. 245. In England, in the hiring of domestic servants for a year, there is generally an implied condition, arising from general custom, that the con- tract may be determined by a month's notice to quit, and if the servant leave without such notice, and without the fault of his master, he can recover nothing for his services. See Hartley v. Cummings, 5 C. B. 247 ; Pilkington v. Scott, 15 M. & W. 657; Archard v. Hornor, 3 C. & P. 349 ; Johnson v. Blenkensop, 5 Jur. 870 ; Nowlan v. Ablett, 2 C. M. & R. 54 ; De- briar V. Miuturn, 1 Cal. 450 ; Patterson v. Suffolk Mfg. Co. 106 Mass. 56. But it has been held [otherwise in this country, Larkin v. Hecksher, 51 N. J. L. 133. It has also been held] that where one enters into the service of employers, under no express agreement to continue in their service for any definite time, but with a knowledge of a reuulation adopted by them requiring that all persons employed by them shall give them four weeks' notice of an intention to quit tiieir service, he does not forfeit his wages by quitting their service without giving such notice ; but he is liable to tiieni for all damages caused by his not giving the notice ; and in a suit against them for his wages, the amount of such damages may be deducted therefrom. Hunt v. The Otis Company, 4 Met. 464. (c) Down V. Pinto, 9 Exch. 327. See also Taylor v. Laird, 1 H. & N. 266. (f/) It seems that where a servant is hired for a year, or other fixed period, at an entire sura, and is discharged by his employer, without cause, during the term, he may at the end of the time recover for the whole time, according to the contract. Gandell v. Pontigny, 4 Camp. 375 ; Costi- gan v. Mohawk & Hudson Railroad Co. 2 Deuio, 609 ; Cox v. Adams, 1 Nott & McC. 284 ; Clancev v. Robertson, 2 Rep. Com. Ct. 404 ; Byrd v. Boyd, 4 McCord, 246 ; Sherman t\ Champlain Trans. Co. 31 Vt. 162. It seems, however, that the action in such case should be special, and 1 It was held in Beach i'. MuUin, 34 N. J. L. 343, that a contract to work for $16 a month was a hiring for that term, the court saying : " The reservation of wages, pay- able monthly or weekly, will not control the contract so as to destroy its entirety, when the parties have expressly agreed for a specified term, as a year. But if the payment of monthly or weekly wages is the only circumstance from which the dura- tion of the contract is to be inferred, it will be taken to be a hiring for a month or a week.'-' But an engagement " at a salary of twenty-five hundred dollars per annum " has been held not to be a contract for anv definite time. Haney r. Caldwell, 35 Ark. 156. 36 CH. VIIT.] HIRING OF PERSONS. oO * England, that after the refusal of the master to employ, * 35 the servant is entitled to bring an action immediately, and is not bound to wait until after the day agreed upon for commence- ment of performance has arrivfed. {e) A promise by the servant to obey the lawful and reasonable orders of his master, within the scope of his contract, is implied by law ; and a breach of this promise, in a material matter, justifies the master in discharging him. (/) not for work and labor done. Fewings v. Tisdal, 1 Exch. 295 ; Arcliard v. Horuor, 3 C. & r. 349 ; Smith v. Hayward, 7 A. & E. 544 ; Broxham v. Wag.staffe, 5 Jur. 845; Hartley v. Harman, 11 A. & E. 798. But if tlie servant obtains work elsewhere, during the continuance of the term for which he was originally employed by the defendant, this ought, and probably would, reduce the damages to which the servant would otherwise be entitled by sucli wrong- ful dismissal. Stewart v. Walker, 14 Penn. St. 293. And see Costigan v. Mohawk & Hudson R. R. Co. 2 Denio, 617, Beards- lei/, J.; Hoyt v. Wildfire, 3 Johns. 518 ; Emerson v. Howland, 1 Mason, 51 ; Sherman v. Champlaiu Trans. Co. 31 Vt. 162. In Goodman i\ Pocock, 15 Q. B. 676, a clerk dismissed in the middle of a quarter brought an action for a wrongful dismissal, the declaration containing a special count for such dismissal. The jury were directed not to take into account the services actually rendered during the broken quarter, as they were not recover- able except under an indebitatus count, and they gave damages accordingly. The plaintiff then brought a second action to recover under an indebitatus count for his services during the broken quarter. It was held, that the action was not main- tainable, because the plaintiff by his former action on the special contract had treated it as an open contract, and he couhl not afterwards recover under the indebitatus count as for services under a rescinded contract. It was also held, that in the former action the jury ought to have I)een directed to take the services rendered during the broken quarter into account, in awarding damages under the special count for the wrongful dismissal. And semhie, per Paiteson, J., and Erie, J., that under an indebitatus count, the ser- vant wrongfully dismis.sed before the ter- mination of the period for which he was hired, cannot recover his whole wages up to such termination, as for a constructive service, but can recover only in respect to his service up to the time of his dismissal. See Lillev v. Elwin, 1 1 Q. B. 755 ; Green V. Hulett^ 22 Vt. 188. (e) Hochster v. De Latour, 2 E. L. & B. L. 678. (/') The King v. St. John, Devizes, 9 B. & C. 896. The wilful disobedience, on the part of tlie servant, of any lawful order of the master, is a good cause of dis- charge. Spain V. Arnott, 2 Stark. 256 ; Callo r. Brouncker, 4 C. & P. 518 ; Amor V. Fearon, 9 A. & E. 548; Leatherberrv c. Udell, 7 Fed. Rep. 642. See also Fillieul V. Armstrong, 7 A. & E. 557. [But not arbitrarily for disobedience in matters of slight moment. Shaver v. Ingham, 58 Mich. 649.] In the case of Turner v. Mason, 14 M. .& W. 112, an action of assumpsit was brought for the wrongful dismissal of a domestic servant, without a month's notice, or payment of a month's wages. Plea, that the plaintiff requested the defendant to give her leave to absent herself from his service during the night, that he refused such leave, and forbade her from so absenting herself, and that against his will she nevertheless absented herself for the night, and until the follow- ing day, whereupon he discharged her. Replication, that when the plaintiff re- quested the defendant to give her leave to absent herself from his service, her mother had been seized with sudden and violent sickness and was in imminent danger of death, and believing herself likely to die, requested the plaintiff to visit her before her death, whereupon the plaintiff requested the defendant to give her leave to absent herself for that purpose, she not being likely thereby to cause any injury or hindrance to his domestic affairs, and not intending to be thereby guilty of any improper omis- sion I or unreasonable delay of her duties; and because the defendant wrongfully and unjustly forbade her from so ab- senting herself for the purpose of visit- ing her mother, &c., she left liis house and service, and ab.sented herself for tiiat purpose for the time mentioned in the plea, the same being a i-easonable time in that behalf, and she not causing thereby any hindrance to ids domestic affairs, nor being thereby guilty of any imi)roper omission or unreasonable delay of her 37 36 THE LAW OF CONTRACTS. [book hi. * 36 * If the contract be for a time certain, and the servant leave without cause before the time expires, it has been held in many cases, in England and in this country, that he has no claim for the services he has rendered, {g) Some of these duties, as she lawfully might, &c. Held, on deiuurrer, that the plea was good, as show- ing a dismissal for disobedience to a lawful order of the master, and that the replica- tion was bad as showing no sufficient ex- cuse for such disobedience. So where the servant assaulted his employer's servant maid, with intent to commit a rape upon her. Atkin v. Acton, 4 C. & P. 208. Or commits any crime, though the same be not imniediatelv injurious to his employer. Libhart v. Wood, 1 W. & S. 265. " So where an unmarried female servant be- comes pregnant. Kex v. Brampton, C'al- decot, II, 14. So usiug abusive language to his employer. Byrd v. Boyd, 4 ilc- Cord, 246. Or quarrels with a fellow clerk, in the store in the presence of la- dies, and draws a revolver. Kearney v. Holmes, 6 La. An. 37.3. Or is guilty of any misconduct, inconsistent with the re- lation of master and servant. Singer c. McCormick, 4 W. & S. 26.5. As if the servant set up a claim to be a partner with his employer. Amor v. Fearon, 9 A. & E. 548. Or conduct so as materially to injure his emplover's business. Lacv v. Osbaldiston, 8 Car. & K. 80. Or is guilty of repeated intoxication; McCormick v. Demary, 10 Neb. 515 ; Beggs v. Fowler, 82 Mo. 599 ; semhie, Wise v. Wilson, 1 Car. & K. 662. And see further Lomax v. Ard- iug, 28 E. L. & E. 543; s. c. 10 E.xch. 734. [So held though not habitual. Bass Furnace Co. v. Glasscock, 82 Ala. 452.] ((/) If tliis question is to be governed solely by the number of authorities, it would seem to be at rest, for it is sup- ported by the following adjudged cases : Cutter (/. Powell, 6 T. U. 320 ; Lilley »■. Elwin, 11 Q. B. 755 ; Stark v. Parker, 2 Pick. 267 ; McMillan v. Vanderlip, 12 Johns 165 ; Jennings v. Camp, 13 id 94 ; Reab v. Moor, 19 id. 337 ; Waddiugton v. Oliver, 5 B. & P. 61 ; Ellis v. Hamlen, 3 Taunt. 52 ; Marsh v. Rulesson, 1 Wend. 514 ; ]\Iiller v. Goddard, 34 Me. 102 ; Faxon v. Mansfield, 2 Mass. 147 ; Lantry V. Parks, 8 Cowen, 63 ; Ketchum v. Evert- .sou, 13 Johns. 365 ; Sickles (.'. PattLson, 14 Wend. 257 ; Weeks v. Leighton, 5 X. H. 343; Olmstead v. Beale, 19 Pick. 528; Thayer v. Wadsworth, id. 349 ; St. Albans Steamboat Co. v. Wilkins, 8 Vt. 54 ; Davis V. Maxwell, 12 Met. 286 ; Hunt v. Otis Man. Co. 4 id. 465 ; Winn v. Southgate, 17 Vt. 355; Sutton v. TyrelU 12 id. 79; Ripley v. Chipman, 13 id. 268; Coe v. 38 Smith, 1 Cart. (Ind.) 267; Swift v. Wil- liams, 2 Cart. (Ind.) 365 ; Hawkins v. Gil- bert, 19 Ala. 54. Kor does it make any difference in this respect whether the wages are estimated at a gross sum, or are to be calculated according to a certain rate per week or month, or are jjayable at certain stipulated times, provided the ser- vant agree for a definite and whole term ; such an arrangement being perfectly con- sistent with the entirety of the contract. Davis r. Maxwell, 12 Met. 286. The law on this point was fully affirmed in the case of Winn v. Southgate, 17 Vt. 355. It was there held, that if one contract to labor for another for a specified term, and leave the service of his employer before the expiration of the term, without any cause, attributable either to the employer or to tlie act of Providence, he cannot re- cover any compensation for the portion of the term during whicii he in fact labors. And it makes no difference that the em- ployer, before the expiration of the term, permitted the plaintiff to be absent from his employment for a few w'eeks upon a journey, — the plaintiff having, after his return, again re.sumed labor for his em- ployer, under the contract. Nor does it make any difference, tliat the plaintiff ceased laboring for his employer, under the belief tiiat, according to the legal method of computing time under similar contracts, he had continued laboring as long as could be required of him. Nor that the employer, during the term, has from time to time made ]iayments to the plaintiff for his labor. But if, in such case, the defendant has made payments to the plaintiff upon the contract, during the term, and the plaintiff, having commenced an action of book account to recover for his services, is defeated, upon the ground that he left the service of the defendant without legal cause, before the expiratiim of the term, the defendant can have no re- covery against the plaintiff for the amount of payments thus made. See also Rice v. The bwight Man. Co. 2 Cush. 80, where it is again held, that if \ enter into the service of B upon an agreement to labor for him a year, and leave at tlie end of si.x months, A can maintain no action for the services so rendered ; but if B then ])rom- ise A to pay him for the six months' labor, upon the performance of any additional service, however slight, or the doing of some act by A, to his personal inconveui- CH. VIII.] HIRING OF PERSONS. 37 cases are of * great severity ; as where the hiring was for a * 37 year, and after ten months and a half the servant went away, saying he would work no more for that master, and after two days returned and offered to fulfil liis contract, and the master refused to receive him, it was held that the servant could recover no wages for the time he had worked, (h) The ground ence, though of no value to B, and such service is rendered, or act done, this will so far operate as a waiver of the original contract that an action may be maintained by it for the six months' labor. That an offer to pay, by the employer, is a waiver of all forfeiture, see also Seaver r. Morse, 20 Vt. 620. So where the employer gives the laborer a note, before the time for which he was hired has elapsed, for the amount of wages already earned, he can- not resist payment thereof by showing that the payee left his service before the expiration of the time for which he was originally hired. Thorpe i-. White, 13 Johns. 5.3. See also Hayden c. Madison, 7 Greenl. 76. The rule before adverted to as to entire performance is not binding upon persons under the age of twenty -one years, and although they engage to work a specified time, and for a specified sum, they may nevertheless leave when they please, and recover upon a quantum meruit for what their services are really worth. Moses V. Stevens, 2 Pick. 3.32 ; Judkins v. Walker, 17 Me. 38; Bishop v. Sheplierd, 23 Pick. 492 ; Vent v. Osgood, 19 id. 572 ; Thomas v. Dike, 1 1 Yt. 273 ; Medburv v. Watrous, 7 Hill (N. Y.), 110; Whitmarsh V. Hall, 3 Denio, 375 ; deducting, it seems, any damage to his employer by such vio- lation of the contract. Thomas v. Dike, II Vt. 273; Moses r. Stevens, 2 Pick. 332 ; Judkins v. Walker, 17 Me. 38. But see contra, Whitmarsh v. Hall, 3 Denio, 375, where the subject was fully con- sidered, and Jewett, J., observed upon this point : " It is insisted on the part of the defendants that the justice erred in rejecting the evidence offered by tliem, on the ground that, although the plaintiff was an infant, and had a right to avoid his contract and recover the value of his services, yet that the defendants were en- titled, if they had sustained an injury by such avoidance, to have a proper allow- ance therefor maile against sucli value. In other words, it is claimed tliat the de- fendants are entitled, as a set-off against the value of the plaintiff's services, to such sum as is equal to the amount of the in- jury sustained by tliem, by tlie avoidance of the contract by the plaintiff, which in effect would charge the infant with the performance of his contract, or with dam- ages for its violation. The proposition is not sustained by any elementary principle known to the law, and 1 do not rind that it has been recognized by any adjudged case, unless by that of Moses r. Stevens, 2 Pick. 332. In that case the plaintiff, an infant, had made a special agreement to labor for the defendant a certain time for certain wages, and before the time ex- pired left his service voluntarily, without cause. It was held, that he miglit recover on a quantum meruit for the services per- formed, and if his employer was injured by the sudden termination of the contract without notice, a deduction should be made on that account. The learned judge, in delivering the opinion of the court, said: ' We tliink the special con- tract being avoided, an indebitatus assump- sit upon a quantum meruit lies, as it would if no contract had been made ; and no in- justice will be done, because the jury will give no more than, under all circum- stances, the services were worth, making any allowance for any disappointment, amounting to an injury, ivhich the defend- ant in such case ivould sustain bij the arotd- ance of the contract.' With great respect, I am unable to yield my assent to the soundness of the qualification annexed to the proposition. I think that the infant plaintiff, in such an action, is entitled, by well-settled principles of law, to recover such sum for his services as he would be entitled to if tiiere had been no express contract made. A recovery is allowed upon the assumption that there is no ex- press contract at all." But in the case of Moulton ?'. Trask, 9 Met. 577, decided since Whitmarsli v. Hall, it was held, that where a minor makes a contract, either absolute or conditional, to labor for a year, for one hundred dollars, and his employer, without sufficient cause, dis- charges him before tiie year expires, indebitatus assumpsit may be maintained for the minor's wages for the time during which he labored ; and his employer is bound to pay at the rate of one hundred dollars a year, deducting any loss that he may have sustained, from the minor's un- fjiithfulness, or occasional absence without leave. See also ante, vol. i. p. * 31 5, note {!). {h'l Lantry v. I'arks, 8 Cowen, 63; Swauzey v. Moore, 22 111. 63 ; llausell v. 39 THE LAW OF CONTRACTS. [book III, * 38 taken in these cases, * and on which they all seemed to rest, is the entirety of the contract, which is supposed to prevent any apportionment of the wages. And it has been held, that the servant cannot recover if he left because the master required of him services different from those specified in the con- tract, if he made no objection thereto, {i) But if prevented from performing the stipulated amount of labor by sickness, or similar inability, he may recover pay for what he has done on a quantum meruit, (j) The case of Britton v. Turner, 6 K H. 481, (Jc) resists the Erickson, 28 111. 257. See ante, p. 33, note (b). {{) Hair v. Bell, 6 Vt. 35; Mullen y. Gilkinson, 19 id. 503. See also l^e Camp V. Steveus, 4 Blackf. 24. In this case a person contracted to work for a year, at a certain sum per month ; but after working three months and ten days, he left his employer, and sued him for the work thus done. It was proved that the defendant had manifested a disposition to get the plaintiff to leave him, and had said, after the plaintiff was gone, that he was glad of it, as the plaintiff was worth nothing. Held, that the action was not sustained. ( / ) Dickey v. Liuscot, 20 Me. 453 ; Feniton i-. Clark, 11 Vt. 557. In this case, Bennett, J., in giving the opinion of a ma- jority of the court, observed : " In the case before the court, the plaintiff contracted with the defendant to labor personally for him for four months, at ten dollars per month, and by the terms of the contract was to receive no pay till he had worked the four months. These services being of a personal character, the contract could not be performed by another, and as the plaintiff was disabled to perform it him- self, by reason of sickness, which was the act of God, upon the authority of the fore- going cases, the contract was discharged. The inquiry then arises, What is the re- sult 1 It appears to me apparent that the plaintiff must, at least, after the expira- tion of the four months be permitted to recover as upon a,qii(intum meruit, prorata, for the services rendered. Common jus- tice requires this, and I should be sorry to find that it was not tolerated by the prin- ciples of tlie common law. To hold, in a case like this, where the plaintiff has been discharged of his contract by the act of God, that there can be no apportionment, upon the technical ground that the con- tract is entire, and i(s performance a con- dition precedent, is, to my mind, leaving the substance and adhering to the sha- dow." Redfield, J., dissented. See also Sea.ver v. Morse, 20 Vt. 620. In this case 40 the plaintiff, having contracted to labor for the defendant six months, at a speci- fied price for the term, was taken unwell, and left the defendant's service, and was so unwell for about a month that he was unable to perform the full labor of a man, and then he recovered his health, but did not return to the defendant's employment. It was held, that he %yas entitled to re- cover for his services, upon a quantum meruit, for the time he labored. And it was also held, that, if this were not so, an offer by the defendant, after the plaintiff had left his service, to pay the plaiu tiff the amount due to him, at the rate of compen- sation fixed by the original contract, was a waiver of all claim of forfeiture. To the same effect is Fuller v. Brown, 11 Met. 440, where a special agreement was made by A and B that A shoultl work for B, and that, if he should be dissatisfied, and wished to leave the service, he should give B four weeks' notice, and work for him four weeks after the notice, and then re- ceive his pay. After A had begun to work under this agreement, he became sick and unable to work, and left B with- out giving four weeks' notice, and re- mained sick for several weeks. Held, that this agreement as to notice applied to a voluntary leaving of the service by A, and not to a leaving by reason of his sickness and inability to continue therein ; and that he was entitled to recover a proper com- pensation for the work which he. had done. And see Fahy v. North, 19 Barb. 341. {k) In this case the whole subject was fully and ably examined by Parker, J., and the court came to the following con- clusions, which the American editor of Chitty on Contracts regards as '' mani- festly just and sensible." 1. Where a party undertakes to pay, upon a special contract for the performance of labor, he is not liable to t>e charged upon such special contract until the money is earned according to the terms of the agreement ; and where the parties have made au ex- CH. VIII.] HIRING OF PERSONS. 40 * whole doctrine of these cases, and permits the servant to *39 recover on a quantum meruit. His right to recover is care- fully guarded in this case by principles which seem to protect the master from all wrong ; and to require of him only such payment as is justly due for benefits received and retained, and after all deduction for any damage he may have sustained from the breach of the contract. So guarded, it might seem that the principles of this case are better adapted to do adequate justice to both par- ties, and wrong to neither, than those of the numerous cases which rest upon the somewhat technical rule of the entirety of the contract. It is certain, however, that, since this case was reported, the same question has been again considered * in * 40 other courts, and decided in conformity with the earlier decisions. (/) press agreement, the la^v will not imply and raise au agreement different from that which the parties have entered into, except upon some further transaction be- tween them. 2. In case of a failure to perform such special contract, by default of the party contracting to do the service, if the money is not due by the terms of the special agreement, and the nature of the contract is such that the employer can reject what has been done, and refuse to receive any benefit from the part perform- ance, he is entitled to do so, unless he has before assented to and accepted of what has been done, and in such case the party performing the labor is not entitled to re- cover, however much he may have done. 3. But if, upon a contract of such a char- acter, a party actually receives useful labor, and thereby derives a benefit and advantage, over and above the damage which has resulted from the breach of the contract by the other party, the labor actually done and the value received fur- nish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of the ex- cess. And the rule is the same, whether the labor was received and accepted by the assent of the party prior to tlie breach, and under a contract by which, from its nature, the party was to receive the labor from time to time until the completion of the whole contract, or whether it was re- ceived and accepted by an assent subse- quent to the performance of all that was in fact done. 4. In case such contract is broken by the fault of the party em- ployed, after part performance has been received, the employer is entitled, if he so elect, to put the breach of contract in de- fence for the purpose of reducing the dam- ages, or showing that nothing is due, and the benefit for which he is lialde to be charged, in that case, is the amoimt of value which he has received, if any, be- yond the amount of damage, and the im- plied promise which the law will raise is to pay sucli amount of the stipulated price for the whole labor as remains, after de- ducting what it would cost to procure a completion of the whole service, and also any damage which has been sustained by reason of the non-fulfilment of the con- tract. 5. If in such case it be found that the damages are equal to or greater than the amount of the value of the labor per- formed, so that the employer, having a right to the performance of the whole con- tract, has not, upon the whole case, re- ceived a beneficial service, the plaintiff cannot recover. 6. If the employer elects to permit himself to be charged for the value of the labor, without interposing the damages in defence, he is entitled to do so, and may have an action to recover his damages for the non-performance of the contract. 7. If he elects to have the dam- ages considered in the action against him, he must be understood as conceding that they are not to be e.xtended beyond the amount of what he has received, and he cannot therefore afterwards sustain an action for further damages. (/) The case of Britton v. Turner was cited and alluded to by the court, in giv- ing the opinion, in the subsequent case of Olmstead v. Beale, 19 Pick. 529, but Mor- ton, J., who there delivered the opinion of the court, said : " We have no hesitancy in adhering to our own decisions, sup- ported as they are by principle, and a long series of adjudications." On the other hand the principles of Britton v. Turner were clearly approved by Bennett, J., in delivering the opinion of Fenton v. 41 *41 THE LAW OF CONTRACTS. [book III. On the same principle of entirety of contract, it is held, that if a servant is discharged for misconduct during the currency of a quarter, he is entitled to no wages from the beginning of that quarter, although he did not misbehave until the day when dis- charged, (m) But if the contract be dissolved by mutual consent, he may recover wages pro raM, without any express contract to that effect, (ji) and so he may if he leave for justifiable cause, (o) If a justifiable cause for dismissal exists, he cannot recover, although not dismissed expressly on that ground, (p) and even although the master did not know of its existence at the time. (5-) And if the servant by his misconduct, forfeits his claim for *41 wages, a subsequent promise of the * master to pay the wages has been held void for want of consideration ; (?-) but this cannot be a general rule. Clark, 11 Vt. 560. The court of Ver- mont seems in other cases inclined to con- strue all entire contracts of labor and ser- vice equitably for the laborer, and to hold, where the employer has received benefit from the servant's labor, and the parties cannot be placed in statu quo, that the em- ployer is liable on a quantum mf-ruit for the" labor actually performed, although the contract was not performed exactl// as agreed. See Oilman v. Hall, 11 Vt. 510; and Blood v. Euos, 12 Vt. 625 ; Sherman f. Champlain Trans. Co.31 Vt. 162; Ryan V. Dayton, -25 Conn. 188; Byerlee v. Mendel, 39 la. 382 ; Powers i\ Wilson, 47 la. 666 ; Duncan r. Baker, 21 Kan. 99 ; Wilev V. Scliool District, 25 Mich. 419; Burkholder r. Burkholder, 25 Neb. 270; Chamblee r. Baker, 95 N. C. 98 ; Bennett IK Stephens, 8 Oreg. 444 ; Trowbridge i". Barrett, 30 Wis. 661. See note (//), p. * 36, and ( /), p. *38. It may be seen in 7th Sir Wm. Jones' works, 366, that the laws of Menu contain the very same prin- ciple as that of the common law, as as- serted in Ulmstead v. Beale ; so that it has, at all events, the sanction of an ex- treme antiquity. {m) Atkin v. Acton, 4 C. & P. 208; Ridgway i\ Hnngerford Market Co. 3 A. & E. 171 ; Turner v. Robinsons, 6 Car. & P. 15; s. c. 2 Nev. & M. 829; Beach i'. Mullin, 34 N. J. L. 343. See ali^o Spots- wood V. Barrow, 5 Exch. 110; and Lush V. Russell, 5 id. 203. (/?) Thomas v. Williams, 1 A. & E. 685; Hilly. Green, 4 Pick. 114. Whether the contract has been rescinded is a ques- tion for the jury. Lamburn v. Cruden, 2 Man. & G. 253. In this case a servant was engaged at a yearly salary, payable quarterly. A month after the termina- tion of one of the years of the service the 42 servant tendered his resignation. After another month the resignation was ac- cepted, nothing being said about remuner- ation for the time elapsed since the termi- nation of the last year's services. It was held, that the law implied no engagement to pay for the services performed since the last quarter ; but that, under the cir- cumstances of this case, it ought to have been left to the jury to .say whether the parties had come to an agreement that tiiose services should be paid for. [o] Patterson v. Gage, 23 Vt. 558; Pritchard v. Martin, 27 Mo 305. And where the contract was dissolved by au- tiiority of the State (the employe being sent away under a statute as a witne.ss in a criminal case), it was held, that the hirer was bound to pay, and only to pay, pro rata wages for the time in which the servant was actuallv in his employ. Mel- ville V. De Wolf, 30 E. L. & E. 323 ; 8. c. 4 E. & B. 844. (/>) Ridgway v. Hungerford Market Co 3 A. & E. 171 ; Cussons v. Skinner, 11 M. & W. 161 ; Baillie v. Kell, 4 Bing. N. C. 638. See also Mercer v. Whall, 5 Q. B. 457, Lord Denman. iq) Spotswood r. Barrow, 5 Exch. 110; Willets );. Green, 3 Car. & K. 59. See also Cowan v. Milbourn, L. R. 2 Ex. 230. (»■) This point was decided in the case of Monkman v. Shepherdson, 3 Per. & D. 1 82. But it is to be observed that in that case there was an express agreement between the parties, that if the servant should get drunk any time during the service, he should forfeit all his wages up to that time. The case of Seaver v. Morse, 20 Vt. 620, is an authority for holding, that a forfeiture of wages, in- curred by a failure to perform an entire CH. VIII.] HIRING OF PERSONS, *42 Where the servant is wrongfully dismissed during a quarter, or other definite term, he may, after the quarter or term ends, recover for the whole in an action, not for work and labor, hut for preventing him from doing his work, (s) If the servant hired for a certain time, reserves the right of leaving earlier, or at his own pleasure, for some specified cause, he cannot leave except for that cause : thus, if he reserves the right to leave " if dissatisfied, " he cannot leave to attend to other business, or for any other reason whatsoever, unless he is " dissat- isfied, " and allege this as the cause of his leaving. (^) It would seem from the decisions that a master is not bound to provide medical attendance or medicines for his farm servant, or his house servant, in case of illness ; even if this be caused by an accident occurring while he was in the discharge of his duty, (u) But it is also held, that if he does send for a * physician he is not only liable himself, but cannot deduct * 42 the charge from the wages of the servant without an ex- press agreement to that effect, (v) The master is bound to take contract, is waived by a subsequent prom- ise of the employer to pay such wages, although the promise is made without any new consideration. See also, ante, p. *36, note {e a special count for the amount of the month's wages which has not been earned ; or, to speak more correctly, for the recovery of damages for the wrongful dismissal, a month's wages being the measure of dam- ages for such breach of contract. See Archard v. Hornor, 3 C. & P. 349 ; Few- ings V. Tisdal, 1 Exch. 295 ; Broxham v. Wag.staffe, 5 Jur. 845 ; Smith v. Havward, 7 A. & E. 544 ; Hull v. Heightman, 2 Ivast, 145. See Lilley v. Elwin, 11 Q. B. 755. In such ca.se the wages due at the time of dismissal cannot be recovered under such special count ; there must be a count for work and labor done ; and these may be joined in the same declaration. Hartley /'. Harmun, 11 A. & E. 798. But see Goodman ;;. Pocock, 15 Q. B. 576. See also, ante, p. *34, note {d}. {t) Monell V. Burns, 4 Denio, 121 ; Lantry r. Parks, 8 Cowen, 63. {h) The contrary opinion was once de- clared by Lord Kenj/on, in Scarman i\ Castell, 1 p:sp. 270, but this doctrine has long since been overruled. See Sellen v. Norman, 4 C. & P. 80 ; Cooper v. Phillips, id. 581. In Dimbar v. Williams, 10 Johns. 249, it is said, that no action lies by a physician for medicine administered' to, and attendance on, a slave, without the knowledge or request of the master, in a case not requiring instant and immediate assistance. But it seems, that if medical or other assistance be rendered to a slave, in case of such pressing necessity as not to admit a previous application to tlie master, the person rendering such assist- ance would be entitled to recover a com- pensation from the master on the impHed assumpsit, arising from the legal obliga- tion of the master to make the requisite provision for his slave. And in England a master is liable to pro:ide medical attendance for his apprentice. Regina v. Smith, 8 C. & P. 1.53.- (v) Sellen v. Norman, 4 C. & P. 80; Emmons v. Lord, 18 Me. 351. It would seem that he cannot deduct the servant's wages during the time he was sick and unable to work. Story on Cont. § 062, /, k, and cases cited. , In Nichols v. Coola- han, 10 Met. 449, a contract was made by N. & C. that N. .should have eleven dollars per month and board, so long as he should work for C, C. informing N. that he (C.) 43 42 THE LAW OF CONTRACTS. [book III. proper care of his servant, and not expose him to danger, (iy)i but it lias been held that he is not responsible for an accident happening in the course of his service, unless the master knew that it exposed the servant to peculiar danger, and the servant did not. (x) might not have two clays' work for him. N. worked for C. several mouths, and brought au action for his wages, and an- nexed to his writ a bill of particulars, in which he charged tlie price agreed on per mouth, and gave C. credit for a certain sum on account of three weeks' sickness of N., during which time he was unable to work. C. filed in set-off an account against N. for board during his sickness; it was held, that the contract was a hiring by the month, that C. was not entitled to pay- ment for N.'s board during his sickness; but that N. could not recover wages for any part of the time of his detention from work by sickness. " Another question," Hubbard, J., remarked, " might have been raised on this contract, namely, whether the plaintiff might not have been entitled to payment for his whole time ; but by crediting the loss of time he has precluded that inquiry, and is properly bound by his admission." Xor, Avithout a specific agree- ment to that effect, can the master deduct the value of articles injured or lost by the servant ; but must bring a cross action therefor. Le Loir v. Bristow, 4^ Camp. 1.34. But see Snell v. The Independence, Gilpin, 40; The New PhcEuix, 2 Hagg. Add. 420. If the servant is au infant, the master may deduct from his wages such sums as he has paid for the infant's neces- saries, l)ut no other. Hedgley v. Holt, 4 C. & P. 104. In this case,' Bni/lei/, J., said : " Payments made ou account of wages due to an infant, for necessaries, and which could not be avoided, are valid payments ; but an infant cannot bind her- self for things which are not necessary ; indeed, even the statement of an account does not bind an infant. It appears that this young woman was under age when she settled tlie account. The consequences might be very injurious if the law were otherwise. What would it lead to in this very case ? Here is a female, who is de- scribed as rather a showy woman, suffered to dress in a manner quite unfitted to her station ; and at the end of her twelve months' servitude she would not have a farthing in her pocket." In Adams v. The Woonsocket Company, 11 3Iet. 327, a father, whose minor daughter was em- ployed by a manufacturing company, at a distance of many miles from his residence, forbade them to employ her any further, and gave them notice that if they should continue to employ her, he should demand $.3. .50 per week for her time and labor, without any deduction on any account whatever, and also directed them not to pay or allow her anything, either goods or monev, on account of her labor. It was held, in an action of assumpsit by the father against the company, to recover pay for his daughter's labor subsequently done for them, that he was entitled to re- cover only as much as her labor was reasonably worth, deducting the price of board provided for her by them, without any deduction for clothing, which they provided for her. (lu) In Priestley v. Fowler, 3 M. & "W. 1, Lord Abinrjer says, that this should be such care as the master may reasonably be expected to take of himself. And see Paterson v. Wallace, 28 E. L. & E. 48. (.r) Priestley v. Fowler, 3 M. & W. 1. In Buzzell v. Laconia Man. Co. 48 Me. 1 13, it is held to be the duty of the master to keep safe and convenient all bridges, passageways, or ladders, necessary to be used b}^ the employe', in going to or re- turning from his labor. See also Ormond V. Holland, 96 Eng. C. L. 102. 1 A master should warn an inexperienced servant of the dangers of the work com- mitted to him, (J'Connor v. Adams, 120 Mass. 427 ; and put guards about dangerous machinery, failing which he is liable, Button v. Great Western Cotton Co. L. R. 7 Ex. 130, as well as for defects in machinery unknown to the servant, but which the master with ordinary care could have cured, Walsh v. Peet Valve Co. 110 Mass. 23 ; Booth v. Boston, &c. R. Co. 67 N. Y. 593 ; Dillon (•. Union Pacific, &c. R. Co. 3 Dillon. 319.— A cab-owner has been held liable for furnishing to a driver a horse not reasonably fit to be driven in a cab, in Fowler v. Lock, L. R. 7 C. P. 272 ; 10 C. P. 90 ; a railroad for allowing a derrick after disuse to remain so as to be thrown down by natural causes, to the injury of a bi-akeman, in Holden v. Fitchburg R. Co. 129 Mass. 268; and a corporation for furnishing giant powder without explaining its use, in Smith r. Oxford Iron Co. 13 Vroom, 467. — K. 44 CH. VIII.] HIRING OP PERSONS. * 43 * It lifts been held, that a master who uses due care in the * 43 selection and employment of his servants, is not responsible to one of them for an injury received from the carelessness of another while employed in the master's service, (y) ^ And the rule has been applied to the case where the party injured was not the servant of the defendants, but was, at the time of the injury, voluntarily assisting their servants ; (z) ^ and also where the ser- vants are employed in distinct departments of the general busi- ness, (zz) But where the servants, though employed upon common work, are in the employment of different masters, and for sepa- rate ends, as in the case of a servant of a carrier injured by the negligence of a merchant's porter, in the process of delivering goods from a warehouse on board a dray, to be transported by the carrier for the merchant, the master of the negligent servant will be responsible to the other servant for the injury, (a) ^ The (y) Farwell v. Boston & Worcester Co. v. "Wehb, 12 Ohio St. 475; Illinois R. R. Co. 4 Met. 49 ; Priestlev v. Fowler, Central R. R. Co. r. Cox, 21 111. 20 ; Hard, .3 M. & W. 1 ; Brown v. Maxwell, 6 Hill Adm'r v. Vt. & Canada R. M. Co. 32 Vt. (N. Y.), 594; Hutchinson v. York, New- 473; contra. Little Miami Railroad Co. v. castle & Berwick Railway Co. 5 Exch. Stevens, 20 Ohio, 415 ; Cleveland, Coluin. 343 ; Wigmore v. Jay, id. 354 ; Tarrant v. & Cincin. R. R. Co. v. Kearney, 3 Ohio Webb, 18 C. B. 797. See also Skipp y. St. 201 ; Manville v. Cleveland '& Toledo Eastern Counties R. Co. 9 Exch. 223; R. R. Co. 11 Ohio St. 417; Chamberlain Hubgh V. New Orleans Railroad, 6 La. v. ]\Iil. & Mis. R. R. Co. 11 Wis. ^38, and An. 495 ; Ryan v. The Cumb. Valley the Scotch case of Dixon v. Ranken, 20 Railroad Co. 23 Penn. St. 384; Coon v. Law Times, 44 ; Oilman v. Eastern R. R. Syracu.se & Utica Railroad, 1 Seld. 493; Co. 10 Allen, 2.33; Burke y. Norwich R. R. Sherman r. Rochester & Syracuse Rail- Co. 34 Conn. 474. road, 15 Barb. 574; Albro" v. Agawara (2) Degg v. Midland R. Co. 1 H. & N. Canal Co. 6 Cush. 75 ; Shields v. Yonge, 773. See also Yose v. Lancashire & Y. 15 Ga. 349 ; Mitchell v. Penn. R. R. Co. R. Co. 2 H. & N. 728. Amer. Law Register, Oct. 18.53, p. 717; (zz) Foster v. Minnesota Central R. R. Honner v. Illinois Central Railroad Co. 15 Co. 14 Minn. 360. III. 550 ; The Ohio & Miss. R. R. Co. v. {a) Abraham v. Reynolds, 5 H. & N. Tiudall, 13 Ind. 366 ; C. & X. & L. M. R. R. 143. 1 A servant takes upon himself the risks of his employment, Lovell v. Howell, 1 C. P. D. 161 ; Gibson v. Erie H. Co. 63 N. Y. 449 ; Peun.sylvania R. Co. v. Lynch, 90 111. 3.33 ; although an infant, I)e Graff v. N. Y. Cent. R. Co'. 76 N. Y. 125 ; and a master ought to discharge a servant as soon as he discovers his unfitness, Columbus, &c. R. Co. V. Troesch, 68 111. 545 ; Mich. Cent. R. Co. v. Dolan, 32 Mich. 510; Houston, &c. R. Co. V. Oram, 49 Tex. 341. — But a master is liable for not employing servants of ordinary skill and care, whereby a fellow-servant is injured. Chapman v. Erie R. Co. 55 N. Y. 579 ; Ardesco r)il Co. v. Gilson, 63 Pa. 146 ; Couch v. Watson Coal Co. 46 la. 17 ; Hardy r. Carolina R. (-0. 76 N. C. 5. — A master, by joining in the work, does become not free from liability as a fellow-servant. Wilson v. Merry, L. R. 1 Sc. & Div. App. 326. — K. '^ Osborne r. Knox, &c. R. Co. 68 Me. 49; unless the assistance was rendered in a transaction of common interest to master and volunteer, with the former's assent, as in getting coal other than at tlie usual place, which was crowded, Holmes r. N. E. H. Co. L. R. 4 Ex. 254 ; 6 Ex. 123 ; or in loading his box, the number of porters being insuffi- cient, Wright V. London, &c. R Co. L. R. 10 Q. B. 298 ; 1 Q. B. 1). 252; or in clearing snow from ajailroad track, Bradley v. N. Y. &c. R. Co. 62 N. Y. 99. — K. 3 This is equally true of a ship owner and a pilot whom the former was compelled to hire, Smith i\ Steele, L. R. 10 C^. B. 125 ; as well as where a colliery engaged A. to complete a shaft, supplying the steam while A. employed and paid tlie workmen, and a 45 * 43 THE LAW OF CONTRACTS. [BOOK III. employer will be held responsible to a servant injured by the act of a fellow-servant, if the injury was caiised by the fellow-ser- vant's using insufficient or unsafe materials which were supplied to him by the employer. (&) If the master has a general man- ager who employs the servants, standing in the place of the master, he is to be treated as the agent of the master, and not as a co-servant, and if he does not hire careful servants the master is liable as if he hired improper servants himself. (c)i There have been of late many cases under the rule exempting an em- ployer from liability for injury to a servant from a co-servant; and there seems to be a tendency to limit the rule to cases where the injured servant was engaged in a common business with the inflicter of the injury, so that he would have an opportunity of preventing by due care his fellow-servant's negligence, (cc) ^ It has been hehl by an application of the general rule that a servant of a railroad company is not entitled to the same remedy for injuries sustained as a passenger, {cd) But such a company was held liable to a repairer of their road injured by cars running out of line, (ce) [In England and many States of this country statutes give under certain circumstances a right of action] for injury caused by {h) Roberts V. Smith. 2 H. & N. 213. Neath R. Co. L. R. 1 Q. B. 417 ; Nash- (c) Walker v. Boiling, 22 Ala. 294; ville R. R. Co. r. Elliot, 1 Cold. 611. See Louisville R. R. Co. v. Collins, 2 IJuvall, also Stewart v. Harvard College, 12 Allen, lU; Feltham r. England, Law Rep. 2 Q. 58; Cooper v. Hamilton Man. Co. 12 B. 33; Murphy v. Smith, 19 C. B. (n. s.) Allen, 193; Felch v. Allen, 98 Mass. 572; 361. Anderson i'. New Jersey, &c. Co. 7 Rob. (cc) Cooper v. Mullins, 30 Ga. 146. 611 ; Shank v. Northern" R. R. Co. 25 Md. And see as to the general rule, Catawissa 462 ; Rohback v. Pacific R. R. Co. 43 Mo. R. R. Co. r. Armstrong, 49 Pa. 186 ; 187. Schultz V. Pacific R. R. Co. 36 Mo. 13; [cd) Weger w. Penn. R. R. Co. 55 Pa. Columbus, &c. R. R. Co. v. Arnold, 31 460. Ind. 174; Donaldson v. Mississippi R. R. (re) Haines v. East Tenn. R. R. Co. 3 Co. 18 la. 280; Morgan v. Vale of Cold. 22^. workman was injured by an engineer under A.'s control, but paid bv the colliery, Rourke V. White Moss Colliery Co. 1 C. P. D. 556 ; 2 C. P. D. 205. See Allen v. New Gas Co. 1 Ex. D. 251. But a person employing master mechanics, each of whom was to furnish the men, tools, and tackle for his work, is not liable, if not negligent in their selection, to a servant of one for an injury caused by imperfect tackle furnished by the other. Harkins v. Standard Sugar Refinery, 122 Mass. 400. See Johnson v. Boston, 118 Mass. 114. — K. 1 A corporation president is not a co-servant. Smith v. Oxford Iron Co. 13 Vroom, 467 ; but contra of a " manager," Wilson v. Merry, 1 Sc. & Div. App. 326 ; of a " vice- principal " of a colliery, Howells v. Landore Steel Co. L. R. 10 Q. B. 62; and of a "foreman," O'Connor v. Roberts, 120 Mass. 227 ; Zeigler v. Day, 123 Mass. 152 ; Ma- lone V. Hathaway, 64 N. Y. 5. — K. 2 A brakeman and an inspector of roUing-.stock, Wonder v. Baltimore, 32 Md. 411 ; the conductor and engineer of the same train, Dow v. Kansas, &c. R. Co. 8 Kan. 642 ; Summerhays v. Kansas, &c. R. Co. 2 Col. 484 ; Ragsdale v. Memphis R. Co. 59 Tenn. 426 ; a construction train conductor and a laborer, McGowan v. St. Louis, &c. R. Co. 61 Mo. 528 ; and a station-master and engineer, Evans v. Atlantic R. Co. 62 Mo. 49, have been held co servants. — K. 46 CH. VIII.] HIRING OF PERSONS. * 44 a co-employ^ ; but under [such statutes] it is held that the employ- ing company is not bound to extraordinary diligence, (c/) ^ From recent cases it would seem that the general rule is now much modified. If the injury was caused directly by the negligence of the employer, he would undoubtedly be responsible, and in a case where the superintendent of an iron company, caused injury to a fellow workman by employing a dangerous explosive, it was held that the negligence of the superintendent was the negligence of the employer, (c^) An employ^ injured by negligence of a fel- low employ^, claimed that this person was notoriously negligent and incompetent ; but, as it appeared that having this knowledge he continued in this employment, it was held that he took the risk on himself, and the employer was not liable, (ch) The master is under no legal obligation to give a testimo- nial * of character to his servant. If he does, it will be pre- * 44 sumed that he speaks the truth, or what he believes to be true ; and therefore if he says what injures the standing and pros- pects of the servant, and this turns out not to be true, the master is nevertheless not liable, unless the servant can prove that the falsity was uttered in malice, {d) Such is the English rule ; but it may be supposed that in this country, if the master is proved to have said what is untrue, he would be responsible for any injury arising therefrom to the servant ; at least unless he could satisfy the jury that he spoke from sufficient cause, and not from malice. In order to constitute a contract of hiring and service, there must be a mutual engagement, on the one part to serve, and on the other to employ and pay. (e) But these engagements cannot always be implied one from the other, or measured one by the other. If a servant agrees to serve for a term of two years, and the master only agrees to pay so much weekly, the master is under no obligation to keep or employ him during the two years, (cf) Hunt V. Chicago, &c. R. R. Co. 26 (e) See Sykes v. Dixon, 9 A. & E. 693, la. 363. where B. contracted in writing to work (eg) Lalor v. V. B., &c. R. Co. 52 111. for the plaintiff in his trade, and for no 401 ; Spelinan v. Fi.sher Iron Co. ,56 Barb, otlier person, during twelve months, and 1.51 ; Louisville, &c. R. R. Co. v. I'ilbern, so on from twelve montlis to twelve 6 Bush, 574. months, until B. should give notice of (di) Davis v. Detroit, &c. R. R. Co. 20 quitting. Held, that such agreement was Mich. 105. invalid under the statute of frauds for (d) Rogers r. Clifton, 3 B. & P. 591 ; want of mutuality. Edmonson r. Stephenson, Bull. N. P. 8 ; Weatherston v. Hawkins, 1 T. R. 110. ^ The right given by such a statute has been held additional to and not instead of any right of action the servant might have at common law. Ryalls v. Mechanics' Mills, 150 Mass. 190. 47 46 THE LAW OF CONTRACTS. [book III. but only to pay so much while he does employ him. (/) * 45 But where the contracts are mutual, and cover * the same ground, for both parties, then the master has at once a right to require the servant to enter upon the discharge of his duty dur- ing the terra, and the servant has a right to require the master to employ him during the whole of the term. Like other agreements, a contract for labor and service, if not to be performed within a year, is within the statute of frauds, and if by parol, is wholly void, {g) And if the contract of service is begun within a year from the making of it, but by the terms of the agreement is not to be completed within that time, it is within the statute and void, {h) It must be certain, however, from the terms of the contract, or be necessarily implied therefrom, that the contract cannot be performed within a year, or it will * 46 not be void, (i) ^ This subject will be, however, * considered (/) In Williamson v. Taylor, 5 Q. B. 175, by an agreement between the defend- ant and plaintiff, the defendant, beinij the owner of a colliery, retained and hired the plaintiff to hew, work, &c., at the colliery, for wages at certain rates in proportion to the work done, payable once a fort- night ; and the plaintiff agreed to con- tinue the defendant's servant during all times the pit should be laid off work, and, when required (except when prevented by unavoidable cause), to do a full day's work on every working day. Held, that the defendant was not obliged by this contract to employ the plaintiff at reason- able times for a reasonable number of working days during the term. In Asp- din V. Austin, 5 Q. B. 671, by an agree- ment between the plaintiff and defendant, the plaintiff agreed to manufacture cement for the defendant, and tlie defendant, on condition of the plaintiff's performing such engagement, promised to pay him £-i weekly during the two years following the date of the agreement, and £5 weekly during the year next following, and al.so to receive him into partnership as a manu- facturer of cement at the expiration of three years ; and the plaintiff engaged to instruct the defendant in the art of manu- facturing cement. Each party liound himself in a penal sum to fulfil the agreement. The defendant afterwards covenanted by deed for the performance of the agreement on his part. Held, that the stipulations in the agreement did not raise an implied covenant that the defendant should employ the plaintiff in the business for. three or two years, though the defendant was bound by the express words to pay the plaintiff the stipulated wages during those periods re.spectively, if the plaintiff performed, or was ready to perform, the condition precedent on his part. See Dunn v. Sayles, 5 Q. B 685 ; Pilkington v. Scott, 15 M. & W. 657; Elderton v. Emmens, 6 C. B. 160; Bust v. Xottidge, 16 E. L. & E. 170, s. c. 1 E. & B. 99; Regina v. Welch, 20 E. L. & E. 82, s. c. 2 E. & B, 357. (7) Bracegirdle 0. Heald, 1 B. & Aid. 722. In this case the contract was by parol on the 27th of May, for a year's service from the 30th of June following, and was held void. Se also Snelling i'. Lord Hunt- ingfield, 1 C. M. & R. 20; Hincklev v. Southgate, 11 Vt. 458; Tuttle i-. Swett, 31 Me. 555 ; Oddy v. James, 48 N. Y. 685 ; Sutcliffe I'. Atlantic Mills, 13 R. I. 480. {h) Id.; and see Pitcher v. Wilson, 5 Mo. 46 ; Drummond v. Burrell, 13 Wend. 307 ; Squire v. Whipple, 1 Vt. 69 ; Birch v. Earl of Liverpool, 9 B. & C. 392. (/) A parol agreement to labor for a company " for the terra of five years, or'so lonc) as A. ahull continue to he w/ent of the company " is not void under the statute, as it iniijht have been completed within a year, although in some contingencies it might extend beyond a year. Roberts e. Rock- bottom Company, 7 Met. 47. — This con- struction of the statute is supported also by the cases of Kent v. Kent, 18 Pick. 569; Peters v. Westborough, 19 Pick. 364; Wells V. Horton, 4 Bing. 40. — In Broad- 1 It was said in Cawthorne v. Cordrey, 13 C. B. x. s. 406, that a contract to serve for one year, to begin the day after the contract was entered into, was not within the 48 CH. VIIT.] HIRING OF PERSONS. *46 more fully in the second part of this work, in the chapter upon the statute of frauds. A nice distinction is taken in some cases between the presump- tions which arise where service is rendered to a stranger, and where it is rendered to near relations. In general, wherever ser- vice is rendered and received, a contract of hiring, or an obliga- tion to pay will be presumed. (J) But it is said not to be so well V. Getman, 2 Denio, 87, it was held, that a parol agreement which is not wholly to be performed within one year, is void, though some of the stipulations are to be executed within the year. And semhie per Beardsletj, J., it is void although one of the parties is to perform every thing on his part within the year, if a longer time than a year is stipulated for the performance by the other. But in Cherry v. Heniing, 4 Exch. 631, it was held (affirming Donnellan v. Read, 3 B. & Ad. 899), that in the 4th section of the statute of frauds the words " not to be performed within the space of one year," mean, " not to be performed on either side." and that the contract in question having been performed on one side within a year from the making thereof, the case was not within the statute. — So in Herrin v. But- ters, 20 Me. 119, the law on this subject is thus laid down : where by the terms of a contract the time of its performance was to be extended ])eyond a year, it is within the statute of frauds, though a part of it was by the agreement to be performed within a y6ar. To bring a case within the statute of frauds, it must have been expressly stipulated by the parties, or it must, upon a reasonable con- struction of their contract, appear to have been understood by them, that the con- tract was not to be performed within a year. A. G. B. contracted in writing with S. to clear eleven acres of land in three years from the date of the contract, one acre to be seeded down the (then) present spring, one acre the next spring, and one acre the spring following ; as a compen- sation for which, he, A. G. B., was to have all the proceeds of said land three years, except the two acres first seeded down. A. G. B. assigned verbally his interest, to the extent of half the contract, to H., who verbally assigned said half to C. B. ; said H. and C. B. respectively agreeing verb- ally to perform one-half of the contract. A. G. B. and C. B. commence the per- formance of the contract, but do not com- plete it. S. sues A. G. B., and recovers damages, for non-performance, which are paid by A. G. B. H. being called upon by A. G. B. for half of the damages so recovered and paid, pays the same to him, and then commences a suit for tlie same against C. B. — It was held, that the con- tract between them (H. and C. B.) was void by the statute of frauds, and that he was not entitled to recover. — See also Roberts V. Tucker, 3 Exch. 632. ( /) Phillips V. Jones, 1 A. & E. 333, Lord Denman. See Peacock v. Peacock, 2 Camp. 45 ; Waterman v. Gilson, 5 La. An. 672. In Xewel v. Keith, 11 Vt. 214, it is said, that if personal services are rendered by A to B at the retpiest of the latter, an action will lie for them, unless it appears from the whole evidence that they were designed to be (jratuitous ; and this is a question of fact. — So where one person has by fraud induced another to labor for a third person, the latter may still be liable for the work. Lucas v. Godwin, 3 Bing. N. C. 737. In Peter v. Steel, 3 Yeates, 250, it was held, that assumpsit would lie in favor of a free negro, for work, lalior, and service, against a person who held him in his service, claiming him Statute of Frauds on the ground that the law excluded fractions of a day from the computation. This dictum was followed by a decision in Dickson v. Frisbee, 52 Ala. 165. In Britain v. Kossiter, II Q. B. D. 123, the court held that .such a contract made Saturday for a year beginning the following Monday was within the statute, and in referring to the dictum in Cawthorne i\ Cordrey, Brett, L. J., said : " This view was founded upon a fiction, namely, that the law does not take notice of part of a dav. I am not prepared to say, that under like circumstances one might not follow that dictum and carry it to the length of a decision." In Billington v. Cahill, 51 Ilun, 132, the dictum in Cawthorne v. Cordrey was disapproved and a decision made at variance with it, Marti)), J., saying, " It is not apparent to us how it can be fairly held that a contract for a full year's service can be performed within one year from the making thereof, when it was made on a day previous to the commencement of the year." VOL. II. 4 49 47 THE LAW OP CONTRACTS. [book III. where the service is rendered to the parent or uncle, or other near relative of the party, on the ground, that the law regards such services as acts of gratuitous kindness and affection. We find American authorities which recognize this distinction, and * 47 particularly where it grows out of the relation of parent * and child, {k) 1 But if a destitute person is received from charity, as a slave. The court laid down the general principle that, where one by com- pulsion does work for another, wliom he is under no legal or moral obligation to serve, the law will imply and raise a promise on the part of the person bene- fited thereby to make him a reasonable rec- ompense. So in Higgins v. Breen, 9 Mo. 497, it was held, that when a married man represents himself to be a widower, and thus induces a woman to marry him, his wife being still alive, such woman may recover of him for her services during such time as she may live with him. — And generally where labor is performed for the benefit of another without his express request, yet if he knows of the work, and tacitly assents to it, an implied promise will arise to pay a reasonable compensation. James v. Bixby, 11 Mass. 34 ; Farmington Academy v. Allen, 14 Mass. 172; Hart v. Hess, 41 Mo. 441; Lipe V. Eisenlerd, 32 N. Y. 229 ; McMillan V. Page, 71 Wis. 655. So where one em- ploys the slave of another the law implies a promise to pay the master for the ser- vices of the slave. Cook v. Husted, 12 Johns. 18S. So of an apprentice. Bowes I'. Tibbetts, 7 Greenl. 457. But labor and service voluntarily done by one for another without his privity or consent, however meritorious or beneficial it may be to him, as in saving his property from destruction by fire, affords no grounds for an action. Bartholomew v. Jackson, 20 Johns. 28; Morris v. Barnes, 35 Mo. 412. So if a workman be employed to do a particular job, and he choose to perform some additional work without consulting his employer, he cannot recover for such additional work. Hort v. Norton, I Mc- Cord, 22. See also ante, vol. i. p. * 468, et seq. Even if it is agreed between the parties that certain work shall be done (iratidtouslii, such contract is nudum pactum, and the party is not bound to perform it ; although it is said that if he once enter upon the performance of such contract, he is bound to complete it. See Rutgers V. Lucet, 2 Johns. Cas. 92, n. (2d ed.) {k) In Andrus v. Foster, 17 Vt. 556, it was held, that where a daughter continues to reside in the family of her father after the age of majority, the same as before, the law implies no obligation on the part of her father to pay for her services. And the same rule applies to cases where the person from whom the compensation for services is claimed took the plaintiff into his family when she was a child, to live ■with him till she should become of age, and she continues after that time, to reside in his family, he standing in loco parentis to her. If she claim pay, it is in- cumbent on her to show that the services were performed under such circumstances as to justify an expectation on the part of both that pecuniary compensation would be required. The right to compensation for services in such cases must depend upon the circumstances of each particular case. See also Fitch v. Peckham, 16 Vt. 150; Weir v. Weir, 3 B. Mon. 647; Al- fred I'. Fitzjames, 3 Esp. 3. In Guild v. Guild, 15 Pick. 130, the law on this point is thus summed up by Shaw, C. J. : " The point is, whether, wliere a daughter, after arriving at twenty-one years of age, being unmarried, continues to reside in her fa- ther's family, performing such useful ser- vices as it is customary for a daughter to perform, and receiving such protection, subsistence, and supplies of necessaries and comforts, as is usual for a daughter to receive in a father's family, the law raises any presumption that she is entitled to a pecuniary compensation for such services, and whether, after proving these facts, the burden of proof is on the defendant to show that the services were performed without any view to pecuuiary compensa- tion. Some of the court are of opinion that, as it is the ordinary presumption, be- tween strangers, that, upon the perform- ance of useful and valuable services in the family of another, it is upon an implied promise to pay as much as such services are reasonably worth, so, after the legal period of emancipation, the law raises a similar implied promise from a father to a daughter. Other members of the court are of opinion (confining the opinion to the case of daughters, and expressing no opin- ion as to the case of sous, laboring on the 1 It is now well settled that services to one's family give rise to no inference that payment was to be made for them, and there can be no recovery on an implied con- 50 ^ P- CH. VIII.] HIRING OF PERSONS. 48 provided with necessaries and set to work, he is under no obligation * to remain, nor has he any claim for wages, * 48 farm, or otherwise in the service of a fa- tlier) that the prolonged residence of a daughter iu her father's family, after tweuty-oue, performing her share in the ordinary labors of the family, and receiv- ing the protection and supplies contem- plated in the supposed case, may well be accounted for, upon considerations of mu- tual kindness and good-will, and mutual comfort and convenience, without presum- ing that there was any understandiug, or any expectation, that pecuniary compen- sation was to be made ; that proof of these facts alone, therefore, does not raise an implied promise to make any pecuniary compensation for such services, or throw on the defendant the burden of proof to show, affirmatively, that the daughter per- formed the services gratuitously, and with- out any expectation of receiving wages or pecuniary compensation, but with a view to the share she might hope to receive in her father's estate or otherwise." The court were equally divided on this ques- tion, and did not decide it ; but they were unanimous in the opinion, that in all such cases the question must be determined by the jury, on all the circumstances, whether there was an implied request for labor, and an implied promise of repayment or not. In King v. Sow, 1 B. & Aid. 1 79, a female natural child was hired for a year by the wife of its reputed father, and con- tinued doing the household work for three years ; but after the first year no w^ages were paid, nor was there any new contract of hiring. Held, that the sessions were warranted in finding that after that time she did not continue on the terms of the original contract. And Bdileij, J., said : " Where the parties are not related, it may fairly be presumed, from a continu- ance in the service, that the terms on which they continue are the same as dur- ing the preceding year. But where the relation of father and child subsists, the ground for that presumption fails." See to the same effect. Dye v. Kerr, 1.5 Barb. 444 ; liidgway v. English, 2 N. J. 409 ; Swires V. Parsons, 5 \V. & S. 357 ; De- france v. Austin, 9 Penn. St. 309 ; Steel V. Steel, 12 id. 64; Lantz r. Frev, 14 id. 201 ; Zerbe v. Miller, 16 id. 488 ; Resor I'. Johnson, 1 Cart. (Ind.) 100; Hussey c. Roundtree, I Busb. L. 110; Partlow v. Cooke, 2 R. I. 451 ; Davis v. Goodenow, 1 Williams, 715 ; Candors' Appeal, 5 W. & S. 513. So an action cannot be main- tained for services performed with a view to a legacy, and not in expectation of a reward in the nature of a debt. See Os- born V. Governors of Guy's Hospital, Stra. 728 ; Le Sage v. Coussmaker, 1 Plsp. 188 ; Little V. Dawson, 4 Dallas, 111; Lee v. Lee, 6 G. & J. 309. Nor will an action for work and labor lie for services per- formed under a contract of apprenticeship which before expiration of the service turns out to be void. Maltbv v. Ilarwood, 12 Barb. 473. But where one party has rendered services for another, and it is manifest from the circumstances of the case that it was understood by both par- ties that compensation should be made by will, and none is made, an action will lie to recover the value of such services. Martin v. Wright, 13 Wend. 460. See also Neal v. Gilmore, 79 Pa. 421. In Eaton V. Benton, 2 Hill (N. Y.), 576, it is said, that one who has served another in expectation of a testamentary provision, and to whom the latter subsequently de- vises a portion of his estate, cannot main- tain a suit for such services against the executors. The general rule seems to he, that a legacy left by a debtor to his credi- tor, which in amount is equal to or greater than the debt, shall be presumed to be in satisfaction of it. tract. It has been so held where a daughter after becoming of age continued to do work in her father's or mother's family. McGarvy v. Roods, 73 la. 363 ; Smith v. Smith's Adm. 30 X. J. Eq. 564 ; Harshberger's Adm. v. Alger, 31 Gratt. 52. Or a son for his father, Zimmerman v. Zimmerman, 129 Pa. 229. Or a grandson for his grandfather, Moyer's Appeal, 112 Pa. 290. Or a son-in-law for his father or mother in law, Coe v. Wager, 42 Mich. 49; Bonney v. Haydock, 40 N. J. Eq. 513; Sawyer v. Hebard's P2st. 58 Vt. 375. Or a niece for her uncle. Wall's Appeal, 1 1 1 Pa. 460.' The rule is based not simply on the relationship between the parties, iiut on the f;ict that the claimant while rendering the .services was a member of the family of the person to whom services were rendered, and it has been accordingly held "that except by express contract stepchildren cannot recover for services rendered to a stepfather who had taken them into his family, Gerdes v. Weiser, 54 la. 591, 593 ; Brown's Appeal, 112 Pa. 18. Nora girl taken from a charitable institution for services rendered to one who had taken her into his family and boarded, clothed, and educated her, Wright V, McLarinan, 92 Ind. 103. Nor a father for services rendered a son in whose family 51 * 48 THE LAW OF CONTRACTS. [BOOK III. unless there be some express agreement, or one may be implied from the peculiar circumstances of the case. A person who seduces a servant away from the service of his master or employer, is liable in an action for damages. Although this principle has been less positively settled by adjudication in this country than in England, we have no doubt of it as a rule of law. (/) In some cases very liberal presumption of payment is made in favor of the master; as where the servant has left his master for a considerable period; and where it is usual to pay wages weekly, (m) As the contract of service is mutual, the employer has a claim (/) Lumlej V. Gye, 20 E. L. & E. 168 ; at the expiration of the time for which he 8. c. 2 E. & B. 216; Keaue v. Boycott, 2 originally hired himself, although the ser- H. Bl. 511 ; Hart v. Aldridge, Cowp. 54; vaut had not at the time any intention of Bowen v. Hall, 6 Q. B. D. 333 ; .Jones c. then quitting his master. Nichol i-. ^Maityn, Blocker, 43 Ga. 331 ; Dickson i\ Dickson, 2 Esp. 734. The contract of hiring be- 33 La. An. 1261; Bixby v. Dunlap, 50 tween the servant and his former master N. H. 256 ; Haskins v. Koyster, 70 N. C. must have been binding, in order to ren- 601. See also Teters v. Lord, 18 Conn, der one enticing him away liable therefor. 337 ; Haight v. Bad: Worrall, 5 C. P. D. 410. P.ut a new promise of marriage made after majority is of course binding, and if the defendant's words may bear this construction, the question whether bis words amounted to a fresh promise or were only a ratification of a former promise may be left to tlie jury. Xorth- cote i;. Doughty, 4 C. P. D. 383. VOL. II. 5 65 * 62 THE LAW OP CONTRACTS. [BOOK III. But in many cases an infant may bring an action for breach of contract against the adult, where the adult could not sue * 62 the infant for a breach on his or her part. It seems to * be distinctly settled, that this is so in the case of a contract to marry, (r/) The very words, or time, or manner of the promise need not be proved ; for it may be inferred from circumstances. It may be that this inference is sometimes made too easily, and that juries, or perhaps courts, justify the reproach, that feeble evidence is sometimes held sufficient to prove such a promise. But it must be remembered that such engagements are often, if not usually, made without witnesses, and are not often reduced to writing. A requirement of precise and direct testimony would facilitate fraud, more perhaps than in any other class of contracts, and fraud that might work extreme mischief. It has therefore been wisely decided that the contract may be inferred from the con- duct of the parties, and from the circumstances which usually attend an engagement to marry ; as visiting, the understanding of friends and relations, preparations for marriage, and the recep- tion of the party by the family as a suitor. ^ But it also held that preparations by the plaintiff in the absence of the defendant, and not connected with him, are inadmissible as evidence. (^^) Where the promise by the defendant was proved, the demeanor of the plaintiff, being that of a betrothed woman, was held to be sufficient evidence of her promise. (A) And consent (7) Holt V. Ward, Stra. 937 ; Willard cussed in the case of Wightman v. Coates, V. Stone, 7 Cowen, 22; Hunt v. Peake, 15 Mass. 1. That was au action of assump- Cowen, 475; Fool v. Pratt, 1 D. (~lhip. sit on a promise to marry the plaintiff, and (Vt.) 252. See Frost v. Vought, 37 Mich, a breach thereof by refusal, and having 65 ; Reish v. Thompson, 55 Ind. 34. married another woman. At the trial, (gfj) Russell v. Cowles, 15 Gray, 582. the evidence of a promise resulted from (fi) In the case of Hutton v. Maosell, sundry letters written to the plaintiff by 3 Salk. 16, tried before Holt, C. J., the the defendant, and from his attentions to promise of the man was proved, but no her for a considerable lensrth of time. It actual promise on the woman's side, yet was objected b}' the defendant, that there he hfild, that there was sufficient evidence beingnodirectevidenceof an express prom- to prove that the woman likewise prom- ise, the action could not be maintained, ised, because she carried herself as one But this objection was overruled by the consenting and approving the promise of judge ; and the jury were instructed, that the man. This question was much dis- if, from the letters of the defendant read 1 Wagenseller i'. Simmers, 97 Pa. 465. Homan v. Earle. .53 N. Y. 267, declared that the promise may be inferred from acts without any formal words ; and where the defendant continues in acts by which the plaintiff to the defendant's knowledge has been induced to believe in an engagement to marry, the defendant cannot deny such engagement ; whether the latter's acts are intended and regarded as serious being a question of fact for the jury. See Richmond v. Roberts, 98 111. 472, where a newspaper article entitled " Love, the Conqueror," given by the defendant to the plaintiff previous to the time of the alleged contract, was allowed to be read in evidence. — K. 66 CH. X.] MARRIAGE. * 64 * of parents in the presence of a daughter, with the absence * 63 of objection on her part, is held to imply her consent ;(i) nevertheless language used to third parties, amounting to an expression of intention to marry the plaintiff, but not uttered in the presence of the plaintiff, does not in general prove a promise to marry. (;') But statements made to a father, who had a right to make such inquiries and to receive a true answer, especially where corroborated by visits and the conduct of the parties, are not only sufficient evidence of a promise, but although the state- ment of the defendant is of a promise to marry the plaintiff in six months, and the count is upon a promise to marry generally, or in a reasonable time, the jury may infer from the statement a general promise to marry. (A;) It has been contended that the promise should be in writing, under the clause in the 4th section of the statute of frauds, which provides that no action shall be brought whereby to charge any person upon any agreement made upon consideration of mar- riage ; but the courts of England, after once so deciding, (l) have since taken a distinction, which is certainly a very nice one, be- tween pi'oviises to marry Q.ndi promises in. consideration of marriage, (m) This clause is not generally * contained in * 64 the statutes of frauds of our States ; but it has been held in this country, that a promise to marry at the end of five years, is within that clause of the statute which requires that a promise not to be performed within one year from the making shall be in writing, (n) A contract to marry, without specification of time, is, as we have seen, a contract to marry within a reasonable time ; each party having a right to reasonable delay, but not to indefinite in evidence, and the course of his conduct and that in these cases mutual promises towards the plaintiff, they were satisfied are so common, although courtshij), or in- that there was a mutual understanding tention, will not supply the place of a and engagement between the parties to promise, yet they come so near, that if marry each other, they might find for the these are once made out, we get on a good plaintiff. In Honyman v. Campbell, 2 way towards our journey's end." See also, I)ow. & C. 282, the Lord Chancellor said : Southardi'.Kexford, 6 Cowen, 2.54; Weaver " I deny that courtship, or an intention to v. Bachert, 2 Penn. St. 80 ; Blackburn v. marry however plainly made out, can con- Mann, 85 111. 222 ; McCrum v. Ilildehrand, stitute, or, in tlie language of the Scotch 85 Ind. 204 ; Homan v. Earle, 53 N. Y. law, is equipollent to a promise. There 267. must be a promise, and the promise must (i) Daniel v. Bowles, 2 C. & P. 553. be mutual and binding on both parties ; (/) ("ole r. Cottingiiam, 8 C. & P. 75. for the law attaches on the promise and (/) Potter v. Deboos, 1 Stark. 82. not on the intention. But still courtship (/) Philpot v. Wallet, 3 Lev. 65. is a most material circumstance, when we (/«) Cork v. Baker, 1 Stra. 34 ; Harri- have to consider whether there was a son v. Cage, 1 Ld. liaym. 387. promise. When we consider how natural (n) Derby v. Phelps, 2 N. II. 515. See It is that lovers should marry, and that Short v. Stotts, 58 Ind. 29. marriage is usually the result of courtship, 67 * 65 THE LAW OF CONTRACTS. [BOOK HI, postponement; nor to delay without reason or beyond reason. ^ If both parties delay the fulfilment of the contract unreasonably, it may be considered as abandoned by mutual consent, in the absence of evidence to negative this inference. ^ These contracts, like most others, may be on condition, and if the condition be legal and reasonable, the liability of the parties under it attaches as soon as the condition is satisfied, (o) But it may easily happen that the condition shall be such as to be void, leaving the contract valid ; as if it be frivolous or impossible, and evidently introduced by one party in fraud of the other. And it may also happen that the condition shall make the contract void. Thus contracts to marry at the death of parents or rela- tions from whom money is expected, and who are kept in igno- rance of the contract, are regarded with great dislike by courts, and would probably be declared void, unless the circumstances cleared them from suspicion. (^) ^ And if the condition were entirely uncertain, or very remote, the contract might be regarded as made in restraint of marriage, as it might prevent either party from marrying for a very long, or for an indefinite period ; and it would be held void on that ground, (g) If the promise is to marry on request, a request should be * 65 * alleged and proved ; but this is not necessary when the defendant is incapacitated from marrying by his or her own act. (r) The defences which may be urged against an action to enforce a promise to marry are very numerous. Consanguinity within (o) Cole !•. Cottingham, 8 C. & P. 75 ; It was endeavored to distinguish this Atchinson v. Baker, Peake, Ad. Cas. 10.3. from other contracts in restraint of mar- ( /)) Woodliouse V. Shepley, 2 Atk. 539 ; riage, on the ground that it was not for Drurv v. Hooke, 1 Vern. 412, was a bill life, but for a time certain; it was held, for relief from a marriage brokage bond, however, that a restraint for a time cer- The marriage had been brought about tain falls within the same policy of the without the consent of the woman's par- law, and makes the contract void, ents. The Chancellor " for tliat reason (;) Short i-. Stone, 8 Q. B. 358 ; Caines alone decreed the bond to be delivered up, v. Smith, 15 M. & W. 189; Harrison v. terming it a sort of kidnapping." Cage, 1 Ld. Raym. 386 ; Millward v. Lit- (q) Hartley v. Rice, 10 East, 22. This tlewood, 1 E. L. & E. 408; s. c. 5 Exch. was an action on a wager that the plain- 775. tiff would not be married in six years. 1 After a reasonable time elapses, and one party without cause refuses to perform, the other is justified in breaking the engagement and bringing suit. Bennett r. Beam, 42 Mich. 346. — K. 2 Wagenseller v. Simmers, 97 Pa. 465. 3 In Erost v. Knight, L. R. 7 Ex. Ill, however, the defendant promised to marry the plaintiff upon the death of his father, and having subsequently refused absolutely to do so, was held liable even before the father's death. But a promise to marry by one already married, when a divorce has been obtained, is against public policv. Noice >• Brown, 38 N. J. L. 228 ; 39 N. J. L. 133 ; Paddock v. Robinson, 63 111. 99 ; cf. Millward v. Littlewood, 5 Ex. 775. 68 CH. X.] MARRIAGE. es the Levitical degrees in England, (s) and in this country, those within which marriage is prohibited by the statutes of the several States. So, the bad character of the plaintiff, or his or her las- civious conduct. ^ The cases generally exhibit this defence where the woman is plaintiff; but it ought with equal justice, and on moral as well as on public grounds, to be permitted to the woman when she is defendant; it was so held in the case of Baddeley v. Mortlock, (t) and undoubtedly would be so held in this country. If the defence be general bad character, evidence of reputation is receivable ; for, says Lord Keynon, " character is the only point in issue ; public opinion, founded on the conduct of the party, is a fair subject of inquiry, "(u) If the defence rests on specific allegations of misconduct, these must be strictly proved ; (v) and if the defendant knew the general bad character, or the specific misconduct, be- fore * making the promise, they constitute no defence, (w) * 66 (s) In Harrison v. Cage, 1 Ld. Raym. 387, it is said, that consanguinity witliin the Levitical degrees may be pleaded in bar or given in evidence under non-as- sumpsit. It has been sometimes inti- mated that previous marriage would be a defence. This must be on the ground that the promised marriage would in that case be unlawful, as in the case of con- sanguinity. But I take the true rule to be, tiiat if the marriage would be unlaw- ful, and this unlawfulness was known to the plaintiff when making the contract, then the plaintiff can sustain no action for the breach of it. Now consanguinity witliin the prescribed degrees may be pre- sumed to be known to both parties. Not so with previous marriage. And cer- tainly a married man who promised to marry a single woman, who did not know his marriage, is liable to an action for the breach of his promise, for it was his own fault that he promised what he could not perform. This seems to be taken for granted bv court and counsel in Daniel v. Bowles, 2'C. & P. 5.5.3. {t) Holt, 1.51. In this case it was proved that charges had been made against the moral character of the plain- tiff, which he did not clear away, and the defendant thereon refused to marry him. Gihbs, C. J., said : " Having promised the plaintiff marriage, she nmst absolve her- self upon some legal gr(iunds. If a wo- man improvidently promise to marry a man, wlio turns out upon inquiry to be of bad character, siie is not bound to per- form her promise. But she must show that the plaintiff is a man of bad char- acter. The accusation is not enough. The facts charged were capable of proof. The e.xistence of the rumor is not suffi- cient to discharge her from her promise. Without proof that the charges were founded she is not absolved from her contract. But it affects the damages." The jury accordingly returned a verdict for the plaintiff, damages one shilling. ('() Foulkes V. Seliway, 3 Hsp. 236. See also, Morgan v. Yarborough, 5 La. An. 416; Sprague i'. Craig, 51 111. 288. (v) Baddeley v. Mortlock, Holt, 151. (w) Irving v. Greenwood, 1 C. & P. 350. This was an action of assumpsit on a promise of marriage. The promise and the breach were clearly made out. But tiie defendant, to bar the action, gave evidence to show that he eventually broke off the match, because he found that the plaintiff was witli child b}^ an- other man. It was admitted, that, after the promise, the plaintiff had had a child, but it was contended that the defendant was its father. Abbott, C. J., in his sum- ming up to the jury, said : " If you think that the defendant was not the 1 Young I'. Murphv, 3 Bing. N. C. 54 ; Kspv v. Jones. 37 Ala. 379 ; Sprague v. Craig, 51 111. 288 ; Hunter v. Hatfield, 68 Ind. 416 ; Denslow v. Van Horn, 16 la. 476 ; Berry v. Bakeman, 44 Me. 164; V%jn Storch c. (iriffin, 77 Pa. 504 ; Capehart y. Carra- dine, 4 Strob. 42 ; Goodall c Thurman, 1 Head, 209. But such character or conduct is no defence if existing and known to the defendant at the time of tlie engagement. Kelley v. Highfield, 15 Ore. 277, and cases above cited. 69 67 THE LAW OF CONTRACTS. [book III. False and injurious language used by plaintiff concerning de- fendant is a good defence, (a?) So bad health, if such as to incapacitate from marriage, or render it unsafe or improper, (y) But a plea of the bad health of the defendant, taking place * 67 subsequently * to the promise, has been held to be no an- swer to an action for a breach of promise, {z) Entire deaf- ness or blindness, or other important physical incapacity, occur- ring after the promise, might be a good defence at law ; {a) ^ so father of the child, he is entitled to your verdict ; for if any man, who has made a promise of marriage, discovers that the person he has promised to marry is with child by another man, he is justified in breaking such promise ; and if any man has been paying his addresses to one tiiat he supposes to be a modest person, and afterwards discovers her to be a loose and immodest woman, he is justified in breaking any promise of marriage that he may have made to her ; but to entitle a defendant to a verdict on that ground, the jur}' must be satisfied that the plaintiff was a loose and immodest woman, and that the defendant broke his promise on that account ; and they must also be satis- fied that the defendant did not know her character at the time of the making of tlie promise ; for if a man knoivwc/li/ promise to marry such a person, he is bound to do so." In Bench i-. Merrick, 1 Car. & K. 463, it was proved, that the plaintiff had had a child some ten years before the promise, and had since sustained an irre- proachable character. Atrherli/, Serj , be- fore whom the case was tried, said : " The great question in this case will be, whether you believe that, in the month of Febru- ary, 1843, the defendant knew the his- tory of the plaintiff in regard to this child. If he did not know it, however great a severity it may be on a woman to rake up the transaction of by-gone times, the defendant's second plea will he sustained, and on that plea the de- fendant will be entitled to the verdict. There is no imputation whatever on the character of the plaintiff except the trans- action of 1831. If the defendant, in your opinion, has not established his defence, there will then be the question of dam- ages ; and in that case, in consequence of the misfortune (calling it by no harsher name) in 1831, the plaintiff cannot be said to be entitled to so large a compen- sation as one on whose reputation no im- putation had ever rested." From this we must infer that if the defendant did know this fact when he made the promise which he had broken, still the fact, though no defence, would go to les.sen the damages. See also, Boynton v. Kellogg, 3 Mass. 189; Palmer v. Andrews, 7 Wend. 142; Snowman v. Wardwell, 32 Me. 275 ; John- son V. Travis, 33 Minn. 231; Kelley v. Highfield, 15 Ore. 277. (x) Leeds v. Cook, 4 Esp. 256. (;/) Atchinson v. Baker, Peake, Ad. Cas'. 103, 124. In this case the plaintiff was a widower upwards of forty years of age, and the defendant a widow about the same age ; when the promise was made, the plaintiff was apparently in good health, but the defendant after- wards discovered that he had an abscess in his breast, and for that reason refused to marry him. Lord Kenyan said, that if the condition of the parties was changed after the time of making the contract, it was a good cause for either party to break off the connection ; that Lord Mans- Jidd had held, that if, after a man had made a contract of marriage, the wo- man's character turned out to be differ- ent from what he had reason to think it was, he might refuse to marry her with- out being liable to an action, and whether the infirmity was bodily or mental the reason was the same ; it would be most mischievous to compel parties to marry Avho could never live happily together. The plaintiff was nonsuited, on theground of a variance ; but afterwards brought a fresh action, and rebutted the defend- ant's testimony as to the abscess, and recovered £4,000 on proof that the de- fendant had promised to settle £5,000 of her fortune on him, and the residue, £18,000, on herself. A motion was then made for a new trial, on the ground of excessive damages, but the cause was compromised. (z) Hall V. Wright, 96 Eng. C. L. 745 ; s. c. E. B. & E. 746. (a) Short v. Stone, 8 Q. B. 369. Lord Denman. A rape wholly without the fault of the woman, would discharge the man 1 Two English cases in regard to such defences seem to allow too little weight to such a defence. In Baker v. Cartwright, 10 C. B. n. s. 124, the defence that sub- 70 CH. X.] MARRIAGE. * 67 would the disposal of her property without the consent of the defendant, and in a manner injurious to his interests, {h) It has been said, also, that if a widow conceals her previous marriage, and betroths herself as a virgin, this would be a fraud, and would avoid the contract, (c) It is going quite far to consider this fact alone as constituting a fraud, but it could seldom occur but under circumstances which would probably determine the character of the concealment; and if this were fraudulent, it must of course have the usual effect of fraud upon the contract ; for if obtained by fraud, whatever that fraud may be, the contract is void. A dissolution of the contract by mutual consent would of course be a sufficient defence, but it must be a real and honest consent, (d) But a pre-engagement by the defendant is no sufficient defence, (e) nor is the fact that the defendant was married at the time of the promise,^ but the plaintiff may bring an action immediately upon discovery, (f) Perhaps it ought to be a good defence, that the from his obligation. Addison on Cont. ability, but it will not avoid the perform- 584. And in France it seems that loss ance of your promise, because it proceeds of a nose would be sufficient. At com- from your own act." mon law it would hardly be held that a ( / ) Wild v. Harris, 7 C. B. 999 ; Mill- misfortune, which merely affected personal ward V. Littlewood, 1 E. L. & E. 408; beauty, was a sufficient defence. Id. s. c. 5 Exch. 775. The consideration was (b) Taylor v. Pugh, 1 Hare, 114. said to be that the plaintiff would remain (c) Addison on Cont. 581. unmarried. Poilock, C. B., said that the {d) See Southard v. Rexford, 6 Cowen, defendant impliedly promised that there 264 ; Kelh^ v. Renfro, 9 Ala. 325 ; Dean was no impediment to his performing his »;. Skiff, 128 Mass. 174; Shelleubarger v. promise This doctrine was also held iu Blake, 67 Ind. 75. the case of Blattmaker v. Saul, which (e) Harrison v. Cage, 1 Ld. Raym. 387 was decided in- Brooklyn, N. Y., in Oc- By Holt, C. J. "Precontract is a dis- tober, 1858. sequent to the engagement the defendant had learned that the plaintiff had previously been insane and confined as a lunatic was held insufficient. In Hall v. Wright, E. B. & E. 746, the defendant pleaded in effect, " that after the agreement and before any breach thereof the defendant became afflicted with frequent and severe bleeding from the lungs, rendering him incapable of marriage without danger of his life, of which the plaintiff had notice." The jury found this plea to be true, except as to tlie alle- gation of notice. A divided court held this to be no defence. In both these cases public policy would seem to require a different decision. In Allen v. Baker, 86 N. C. 91, Hall V. Wright is justly criticised. It was held in Allen v. Baker, that venereal disease on the part of the defendant was no defence to an action for damages if -con- tracted subsequently to the engagement or if contracted before and known to be permanent, the disability having been caused by the defendant's own fault. Impotence of the defendant though known "to both parties at the time of contract- ing, was held a good defence in Gulick c Gulick, 41 N. J. L. 13, because a .statute made the marriage of an impotent person void. Sexual incapacity on the part of the plaintiff unknown to the defendant at time of the engagementis a good defence. Griug V. Lerch, 112 Pa. 244. That the plaintiff (woman) was addicted to swearing was held no defence in Berry v. Bakeman, 44 Mo. 164. Obviously, a feeling on the part of the defendant " that it would be for the happine.ss of both "of them that they should separate," is not a defence. Coolidge v. Neat, 129 Mass. 146. In Sprague V. Craig, 51 111. 288, the defendant was entitled to show in mitigation of damages that he was afflicted with an incurable disease. See Button v. McCauley, 38 Barb. 413. ^ If the plaintiff did not know of the fact. Kelley v. Kilev, 106 Mass. 339. 71 * 68 THE LAW OF CONTRACTS. [BOOK III. plaiutifT, when making the contract for the breach of which the action is brought, was under an engagement to another party. For instance, if a woman sues a man for a breach of promise of marriage, she must of course show that the promise was reciprocated by her; and if the defendant could then show, that when she made this promise to him she was bound by a previous * 68 promise to another, it would * seem to be just that she should not recover for the violation of a contract, her enter- ing into which was a precisely similar violation of contract. But this question does not appear to have been settled by adjudication. It would seem, however, that where there was a fraudulent con- cealment of the prior contract by the plaintiff, the fraud Vieing sufficiently pleaded, the defence would be held good. (^) The contract with a woman divorced for her own fault would be invalid in a State where such woman cannot legally marry. (7/7) An otter to renew or execute the contract after a refusal should be no defence ; ^ nor a change of feeling, nor the fact that another had supplanted the plaintiff in the affections of the defendant. But it would seem, on general principles, to be a good defence, that the promise was made on condition that the plaintiff would commit fornication with the defendant ; for sucli a promise might be void as founded upon an illegal consideration, (h) ^ But it is ((/) Beachey v. Brown, 90 Eng. C. L. nisi for a new trial having been obtained, 796. on the ground tiiat it was/i/c/i/s roDtractus, {(jg) Haviland r. Ilaviland, 34 N. Y. being on condition of tln^ plaintiff going 643. - to bed with the defendant, I..ord Mansfield (h) This \) Nichols v. Nichols, 31 Vt. 328. the husband, has been frequently refused (j>p) There is a strong recent case on where the o?ilij proof was the defendant's this subject in Adams v. Adams, Law admission of the fact. Holland v. Hoi- Rep. 1 P. & D. 333. See also Baylis v. land, 2 Mass. 154 ; Baxter v. Baxter, 1 id. Baylis, Law Rep. 1 P. & D. 395. 1 Insanity following the offence is no bar. Mordaunt v. Moncreiffe, L. R. 2 H. L. So. & Div. 374. As to the insanity of both parties, see Garnett v. Garnett, 114 Mass. 379.— K. 2 Thus a note given towards procuring a divorce is void as between the parties, Kilborn v. Field, 78 Pa. St. 194 ; as well as an agreement for alimony, Adams v. Adams, 25 Minn. 72. See Cairns v. Cairns, 109 Mass. 408; Baugh y. Baugh, 37 Mich 59; Hopkins v. Hopkins, 39 Wis. 167 ; Sickles v. Carson, 11 C. E. Green, 440; Ever- hart V. Puckett, 73 Ind. 409. — K. D2 CH. X.] MARRIAGE. * 85 time with the guilty husband ; whereas a husband is under no such necessity, and should renounce all cohabitation with a wife whom he knows to be an adulteress ; and that a disregard of this requirement would bar his divorce is well settled, (p^) ^ The courts may also decree a divorce a mensd et thoro ; and this kind .of divorce was once the most common. But most of the causes which formerly only sufficed for a divorce from bed and board, are now very generally made sufficient for a divorce from the bond of marriage. In general, a woman divorced from the bed and board of her husband acquires the rights, as to property, business, and contracts, of an unmarried woman. And her hus- band is freed from his general obligation to maintain her, the courts having power, which they usually exercise, of decreeing such maintenance from the husband as his means, and the char- acter and circumstances of the case render proper, (^r) The law applying to foreign divorces is considered in our chap- ter on the Law of Place. ipq) Turnbull v. TurnbuU, 23 Ark. whether for injuries done to her person 615 ; Thomas v. Thomas, 2 Cold. 123. or property, or in regard to contracts ex- See, as to condonation, Sewall v. Sewall, pressor implied arising after the divorce; 122 Mass. 156; Rogers v. Kogers, 122 and that she shall not be obliged to join Mass. 423 ; Warner v. Warner, 4 Stewart, her husband in such suit ; and to the same 225 ; Farnham v. Farnham, 73 111. 497 ; e.xtent she is liable to be sued alotie, she Clouser v. Clapper, 59 Ind. 548. being to all legal intents a feme sole in (7) Dean v. Richmond, 5 Pick. 461, regard to subjects of this nature. Such, where it was held, that a wife divorced however, is not the law of England, it a mensa et thoro may be sued, or sue as having been recently decided that cover- a feme sole. Parker, C. J., in delivering ture is a good plea, notwithstanding a the opinion of the court, after quoting divorce a mensa et thoro. Lewis v. Lee, 3 from 2 Kent, Com 136, as "a recently pub- B. & C. 291. But the difference in the lished book, which I trust from the emi- administration of their law of divorce nence of its author, and the merits of the and ours, and the power of the Court of work, will soon become of common refer- Chancery there to protect the suffering ence in our courts," says: " So far as this party, will sufficiently account for the opinion relates to the case of divorce, we seeming rigor of their common law on fully concur with him, and are satisfied this subject. If the husband is not liable that, although the marriage is not to all for the debts of the wife, after a divorce purposes dissolved by a divorce a mensd a mensd, the chief reason for denying her et^ thoro, it is so far suspended that the the right to sue alone fails." See also wife may maintain her rights by suit. Pierce v. Burnham, 4 Met. 303. 1 So connivance by the libellant in the adulterv of the libellee will prevent a decree of divoi'ce being granted. As to what constitutes connivance, see Jlorrison r. Morri- son, 136 Mass. 310. Cf. Robbins v. Robbins, 140 Mass. 528; Wilson >\ Wilson, 154 Mass. 194. Connivance will also bar relief for any subsequent adulterv, Hedden v. lledden, 6 C. E. Green, 61 ; but not for a prior act of adultery unknown at the time of tlie connivance. Morrison v. Morrison, 142 Mass. 361. 93 87 THE LAW OP CONTRACTS. [BOOK III. *86 * CHAPTER XL BAILMENT. The Law of Bailment has received in modern times a more sys- tematic arrangement than formerly, and a more profound and accurate investigation into its principles. But it was always, though not under the same name, a branch of the common law, and some of its principles are as ancient as any part of that law. Sir Williain Jones speaks of it as referred to in the books of Moses and as quite fully developed among the Greeks. But, in fact, much law on the topics which are now considered under the head of Bailment, must exist in all nations who make any approach to civilization. For there must always be something of borrowing, lending, hiring, and of keeping chattels, carrying or working upon them, for another; and all this is embraced within Bailment. The word is from the Norman-French hailler, to deliver. What- ever is delivered by the owner to another person, in any of the ways or for any of the purposes above mentioned, is bailed to him ; and the law which determines the rights and duties of the parties, in relation to the property and to each other, is the law of Bailments. Sir William Jones, in 1781, published his brief essay on the Law of Bailments. This work first gave to the subject systematic form. It was at that time eminently useful, and has always been celebrated. As a literary and philosophical production, manifest- ing much learning in the Roman civil law, it has great merit ; but, as a law-book for present use, it now possesses less value. In the 2 Anne, Lord Holt, in the case of Coggs v. Ber- *87 nard,(«) laid the foundations of this system of * law, build- (a) 2 Ld.Ravm. 909. This celebrated his own sagacity in seizing those of its case is referred to in the great majority principles which had been adopted by or of subsequent cases which relate to the were applicable to the common law, and responsibility of a bailee. In this case, in stating them with great accuracy of that eminent judge. Sir John Holt, may be definition, and with the modifications re- said to have laid the foundation of "the quired to adapt them to the common law. Law of Bailment for England. He bor- 8o that they have passed through all rows most, perhaps all, of his principles subsequent adjudicatious with but little from the civil law. And he gave at once essential change, a proof of the wisdom of that law, and of 94 CH, XI.] BAILMENT. * 88 ing it, however, on principles deducible from or harmonizing with existing English jurisprudence, although he used an arrangement and nomenclature borrowed from the civil law. A bailee is always responsible for the property delivered to him ; but the degree and measure of this responsibility vary from one extreme to another. He is bound to take care of the prop- erty; but the question always occurs, What care? It is obviously impossible to measure the requirement of care with exact pre- cision. But, for their assistance in doing this, courts have estab- lished three kinds or degrees of care, as standards. There is, perhaps, no better definition of these, than that given by Sir William Jones. First, slight care, which is that degree of care which every man of common sense, though very absent and inat- tentive, applies to his own affairs ; secondly, ordinary care, which is that degree of care which every person of common and ordinary prudence takes of his own concerns; thirdly, great care, which is the degree of care that a man remarkably exact and thoughtful gives to the securing of his own property. It is obvious that the degree of care required measures the degree of negligence which makes the bailee responsible for loss of or injury to the thing bailed. There are, therefore, three degrees of negligence. The absence of slight care constitutes gross negligence; the absence of ordinary care constitutes ordinary negligence ; the absence of great care constitutes slight negligence. The general purpose of the Law of Bailment is to ascertain, whenever loss of or injury to a thing bailed occurs, to what degree of care the bailee was bound, and of what degree of negligence he has been guilty. (&) For this purpose bailees are sometimes distributed into three general classes, corresponding with the three degrees of care and negligence already referred to. The first of these is, where *the bailment is for the benefit of the bailor alone. In this *88 class but slight care is required of the bailee, and he is responsible only for gross negligence. The second is, where the bailment is for the benefit of the bailee alone. In this class the greatest care is required of the bailee, -and he is responsible for slight negligence. The third is, where the bailment is for the benefit both of bailor and bailee. In this class, ordinary care is required of the bailee, and he is responsible for ordinary negli- gence. We shall also see, presently, that there are bailees of whom the utmost possible care is required, and who are respon- (6) For an able criticism upon the deft- 469. See also Blythe v. Waterworks, 36 nitions and classifications of negligence, E L. & E 506; s. c. 11 Exch. 781. see Steamer New World v. King, 16 How. 95 * 89 THE LAW OF CONTRACTS. [book III. sible for the slightest possible negligence, and others who are responsible when guilty of no negligence whatever. Courts and writers have sometimes spoken of gross negligence as the same thing as fraud; but this is inaccurate. (c) There are bailees who should not be held responsible but for the gross- est negligence, and it is often difficult to distinguish between such cases and those where there is reasonable suspicion of fraud ; for such negligence generally justifies such suspicion. But that the law makes this distinction is certain. There have been many different classifications of the kinds of bailments ;(<:?) but we prefer and shall use that of Sir *89 William * Jones, which varies somewhat from IjOtA. Holt's. (c) In the case [n re Hall & Hinds, 2 Man. & G. 852, Tindal, C. J., says: " Lata culpa or crassn riffjligentia, both by the civil law and our own, approximates to, and in many instances cannot be distin- guished from, dolus mains or misconduct." There may be instances in which these cannot be discriminated in fact, but they are entirely distinct in law. In Wilson v. Y. & M. Railroad Co. 11 Gill & J. 58, 79, the court say : " We do not think that gross negligence would, in construction of law, amount to fraud, but was only evidence to be left to the jury, from which they might infer fraud, or the want of bona Jides." In Goodman v. Harvey. 4 A. & E. 876, Lord Denman says: " Gro.*s negli- gence may be evidence of mala Jides, but It is not the same thing." This is quoted with approbation in Jones r. Smith, 1 Hare, 71, and Vice-Chancellor Wigmm adds : " The doctrines of law and equity upon this point ought to be concurrent." When Lord Holt, in Coggs v. Bernard, says, that gross negligence is looked upon as evidence of fraud, he adopts a rule of the civil law ; he does not mean that this evidence is conclusive ; or, tiiat if it be rebutted, and the negligence cleared from all stain of actual fraud, it will not remain gross negligence. In other words, gross negligence is not fraud by inference of law, but may go to a jury as evidence of fraud. See National Bank v. Graham, 100 U. S. 699. {d) There are two classifications of the various kinds of bailments which have become very celebrated in the English and American law, — that of Lord Holt, in the case of Coggs v. Bernard, supra, and that of Sir Wilham Jones, in his essay on bailments. We shall give them both in their author's own language. Lord Holt's is as follows : " There are." says he, " six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to 96 keep for the use of the bailor ; and this I call a depositum, and it is that sort of bail- ment which is mentioned in Southcote's case. The second sort is, w^hen goods or chattels that are useful are lent to a friend gratis to be used by him ; and this is called commodatum, because the thing is to be restored /« specie. The third sort is, when goods are left with the bailee to be used by him for hire ; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor ; and this is called in Latin vadium, and in English a paicn or jiledge. The fifth sort is, when goods or chattels are delivered to be carried, or something is to be done about them, for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is, when tiiere is a delivery of goods or chattels to somebody, who is to carry them or do .something about them gratis, without any reward for such his work or carriage." Upon this classification Sir William Jones has made the following observations : " His division of bailments into six sorts, appears, in the first place, a little inaccurate ; for, in truth his jifth sort is no more than a branch of his third, and he might with equal reason have added a seventh, since the fyth is capable of another subdivision. I acknowledge, therefore, but Jive species of bailments, which I shall now enumerate and define, with all the Latin names, one or two of which Lord //('/^ has omitted. 1. Depos- iTf.Ai, which is a naked bailment, with- out reward, of goods, to be kept for the bailor. 2. MAND.\TrM, or commission, when the mandatary undertakes, without recompense, to do some act about the things bailed, or simply to earn/ them ; and hence Sir Henry Finch divides bail- CH. XI.] BAILMENT. * 90 And we shall speak successively of First, Depositum or deposit without compensation or reward. Second, Mandatum, or gratuitous commission, wherein the mandatary agrees to do something with or about the thing bailed. Third, Commodatum, or loan, where the thing bailed is lent for use, without pay, and is to be itself returned. Fourth, PiGNUS, or pledge, where the thing bailed is security for debt. Fifth, LocATio, or hiring, for a reward or compensation. SECTION I. DEPOSITUM. Where a thing is placed with a depositary, to be kept for a time, and returned when called for, the depositary to have no * compensation, the benefit of the transaction is wholly * 90 on the side of the bailor, and the bailee is liable only for gross negligence, (e) ^ By the Eoman law he was answerable only ment into tivo sorts, to keep, and to eniploi/. Bernard. Lord Coke, however, in Soiith- 3. Commodatum, or loan for use; when cote's case, 4 Rep. 83 b, and in Co. Lit. goods are bailed, without pay, to be used 89 a, laid down a different rule. He for a certain time by the bailee. 4. Pig- stated the law to be, that a gratuitous NORi AccEPTUM, wiien a thing is bailed bailee must answer for the goods deliv- by a debtor to his creditor in pledi/e, or as ered to him at his peril, unless he has a security for the debt. 5. Locatum, or made a special agreement to take such hirim/, which is always for a reivard ; and care of them onlij as he takes of his own this bailment is either, 1. Locatio rei, by gooils; " for to be kept and to be safely which the hirer gains the temporary use kept is all one in law." But the profes- ol the thing ; or, 2. Locatio operis faciendi, sion seem never to have been satisfied when loork and Inhor, or care and pains, with Lord Coke's rule. For it was denied are to be performed or bestowed on the to be law in 33 Car. II. by Pemberton, C. thing delivered; or, 3. Locatio operis mer- J., in the case of Rex v. Hertford, 2 Show. cium veliendariim, when goods are bailed 172, and again in 13 \Vm. III. by Holt,C. for the purpose of being carried from J., in the case of Lane r. Cotton, 12 Mod. place to place, either to a public carrier, 472, 487 ; and finally it was expressly or to a pricute person." See Jones on overruled by the wlioJe Court of Queen's Bailm. 3.5. Bench, in 2 Anne, in the case of Coggs v. (e) This has been the clearly estab- Bernard; And Holt, C. J., in the latter lished law ever since the case of Coggs v. case, said, that the rule stated in the text ^ That national banks have the power to receive special deposits as incidental to their business, and when received gratuitously are liable for gross negligence, see PattLson v. Syracuse National Bank, 80 N. Y. 82, where the authorities on the liability of banks for special deposits are colhited. To the same effect are Lvons Bank i'. Ocean Bank, GO N. Y. 278 ; National Bank v. Graham, 79 Pa. St. 106 ; Chattahoochee Bank v. Schley, 58 Ga. 369. See also Scott v. Chester Vallev Bank, 72 Pa. St. 471. Contra, Whitney v. Brattleboro Bank, ."jO Vt. 388; Wiley v. Same, 47 Vt. .546. See Shoemaker v. Hinze, 53 Wis. 116, where the defendant was held alisolutely liable for a !?um of money given him to take care of and stolen from him. — K. VOL. II. 7 97 92 THE LAW OF CONTRACTS. [book in. * 91 for * fraud ; for if the bailor thus deposited goods with a negligent person, he took upon himself the risk of negli- gence. So it seems to have been held by Bracton, (f) who copied from the Eoman law. But by the English and American law, such bailee is, as we have seen, liable for gross negligence, although he may have been wholly innocent of any fraudulent intent. It is impossible to lay down any rule or principle, which will be in all cases a reliable test as to what constitutes gross negligence. The question must always depend upon several cir- cumstances ; such as the nature and quality of the goods bailed, and the character and customs of the place where the trust is to be executed. What would amount to more than ordinary dili- gence in the case of a chattel of great bulk and little value, might be very gross negligence in the case of a bag of gold coin, or a parcel of valuable papers. Again, what would be a sufficient degree of diligence in a thinly peopled country, might be very culpable negligence in a thickly inhabited citj.{g) It has been commonly stated by writers, and is said in some cases, that a depositary is not liable, as for gross negligence, if he shows that he has taken as much care of the goods of the bailor as he * 92 has of his own ; but this is not law, (h) and although * it had always been acted upon at Guildhall, contrary to the opinion of Lord CV^^'e, particularly during all of Chief Justice Peuiherton's time, and ever since. The whole matter of the liability of a deposi- tary was much discussed in the case of Foster v. The Essex Bank, 17 Mass. 479. The facts in that case were, that the plain- tiff's testator had deposited at the Essex Bank, for safe keeping, a chest containing a large quantity of gold. Some time after the deposit was made, the gold was taken from the chest and })ut in a cask, from whence the greater part of it was fraudu- lently and secretly taken by the cashier and chief clerk, who appropriated it to their own use, and afterwards absconded, having also defrauded the bank of the greater part of its ca])ital. This was done without the knowledge of any of the directors, or members of the corporation. The deposit in question was kept in the vault, in the same manner, and with the same care, as other special deposits, and as the specie of the bank ; and the cashier and the clerk sustained fair reputations, until the time of their aliscondiug. The court /(eW, that the bank was not liable. See Gulledge v. Howard, 23 Ark. 61 ; Green v. Birchard, 27 Ind. 483 ; Bronnen- burg V. Charman, 80 Ind. 47.5 ; Schermer V. Neurath, .54 Md. 491 ; McKay i'. Ham- 98 blin, 40 Miss. 472 ; Eddy v. Livingston, 35 Mo. 487 , Patterson ?•. Mclver, 90 N. C. 493 : Whitney ;• First Bank, 55 Vt. 154; Carrington v. Ficklin's Exec. 32 Gratt. 670. {/) Lib. 3, c. 2, fol. 99 b. (jection to the verdict was, that the plaintiff, upon whom the burden of proof lay, did not make out a prima facte case of gross negligence. But the court unanimously discharged the rule. And .Mr. Justice Tminton said: " rhe defendant receives money to be kept for the plaintiff. What care does he exercise "? He puts it, together with money of his own (which I think perfectly immaterial), into the till of a public house." So Giblin r. McMullin, L. U. 2 P. C. 317. The case of Tracy v. \Vood, 3 Mason, 132, is also a very strong ca.se to the same point. It was an action of assumpsit for negligence in losing 7641 doubloons, in- trusted to the defendant to be carried from New York to Boston, as a gratui- tous bailee. The gold was put nj) in two distinct bags, one within the other, and at the trial, upon the general issue, it appeared that the defenilant, a money- broker, brought them on board of the steamboat bound from New York to Providence ; that in the morning, while the steamboat lay at New York, and a short time before sailing, one bag was discovered to be lost, and the other was left by the defendant on a table in his valise in clie cabin, for a few moments only, while he went on deck to send in- formation of the su{)posed loss to the plaintiffs, there being then a large num- 99 93 THE LAW OF CONTRACTS. [book III. by what may be shown to be his general character in those re- spects, it would seem to be the better opinion, that the indi- vidual character of the bailee is not a legitimate subject of inquiry, unless it can be shown that his character was known to the bailor, and that it was the implied understanding of the parties that the bailee should employ such care and skill as he possessed, (i) If the bailor knows the habits and character of the ber of passengers on board, and the loss being puljlicly known among them. On the defendant's return the second bag was also missing, and after every search no trace of the manner of the loss could be ascertained. The valise contamiug both bags was brought on board by the defendant on the preceding evening, and put by him in a berth in the forward cabin. He left it there all nigiit, liaviug gone in the evening to the theatre, and on his return having slept in the middle cabin. The defendant liad his own money to a considerable amount in the same A'alise. There was evidence to show that he made inquiries on board, if the valise would be safe, and that he was informed that it it contained articles of value, it had better be put into the custody of the cap- tain's clerk in the bar, under lock and key. Stortj, J., in summing up to the jury, said ■ " I agree to the law as laid down at the bar, tliat in cases of bailees without reward, they are liable only for gross negligence. Such are depositaries, or persons receiving deposits without re- ward for their care ; and mandataries or persons receiving goods to carry from one place to another without reward. The latter is the predicament of the defendant. He undertook to carry the gold in que.s- tion for the plaintiff gratuitously, from New York to Providence, and he is not responsible, unless he has been guilty of gross negligence. . . . The contract of bailees without reward, is not merely for good faith, but for such care as persons of common prudence in their situation usu- ally bestow upon such property. If they omit such care, it is gross negligence. The present is a case of a mandatary of money. Such property is b}' all per- sons, negligent as well as prudent, guarded with much greater care than common ])roperty. The defendant is a broker, accustomed to the use and transportation of money, and it must be presumed he is a person of ordinary diligence. He kept his own money in the same valise ; and took no better care of it than of the plaintiff's. Still, if the jury are of opinion that he omitted to take that reasonable care of the gold which bailees without reward in his situation usually 100 take, or which he himself usually took of such property, under such circumstances, he has been guiltv of gross negligence." Cf. Bland v. Womack, 2 Mnrph. (N. C) 373. (i) The William, 6 Rob. Adm. 316. In this case a vessel had been captured, and was afterwards lost while in the hands of the captor. The capture was justifiable, and the question was whether the captor had used such diligence as a captor is required to use in such cases. Sir W. Scott, in addressing the jury, said : " When a capture is not justifiable, the captor is answerable for every damage But in this case the original seizure has been justified by the condemnation of part of the cargo. It is therefore to be considered as a justifiable seizure, in which all that the law requires of the captor is. that he should be held respon- sible for dw diligence. But on questions of this kind there is one position some- times advanced, which does not meet with my entire assent, namely, that captors are answerable only for such care as they would take of their own property. This I think is not a just criterion in such cases ; for a man may, with respect to his own property, encounter risks, from views of particular advantage, or from a natural disposition of rashness, wiiich would be entirely unjustifiable in respect to the custody of tiie goods of another person, which have come to his hands by an act of force. Where jiroperty is confided to the care of a particular person, by one who is, or may be supposed to be ac- quainted with his ciiaracter, the care which he would take of his own prop- erty might, indeed, be considered as a reasonable criterion." " Certainly it might," says Mr. Justice Stori/, " if such character w-as known, and the party under tlie circumstances might be pre- sumed to rely, not on the rule of law, but on the care which the party was ac- customed to take of his own property, in making the deposit. But, unless he knew the habits of the bailee, or could be fairly presumed to trust to such care as the bailee might use about his own property of a like nature, there is no ground to say that he has waived his right to de- CH. XI.] BAILMENT. * 94 bailee, and the place and manner in * which he usually * 9-4 keeps such goods, the bailee is not responsible for any injury resulting from his keeping and treating them in that way. 0') Sir William Jones thinks the depositary held for less than gross negligence, first, where he makes a special bargain for special care, and secondly, where he spontaneously and officiously proposes to keep the goods of another, (k) But neither of these rules has been determined by adjudication. The depositary is bound to deliver the thing as it was, and with it all its increase or profit. But if the bailor was not the rightful owner, and the depositary, in good faith, delivers the thing to the rightful owner on demand from him, this constitutes a good defence against the bailor ; (/) although for his own security, he should, if possible, compel the rival claimants to interplead, (m) or should obtain security from the party to whom he delivers it. ^ If the property belongs to two or more bailors, and is capable of partition, he may on demand restore it by division among them. But where it is incapable of division the law seems to be defi- cient. The ancient action of detinue, with the process of gar- nishment, would have settled the claim. Kent {a) thinks equity interpleader adequate, and far better ; as it certainly would be if it could be applied to the question ; but this, Sto7^ij (o) confines to cases of a privity between the parties, as where there was a joint bailment, or joint contract. Upon the whole we prefer Kent's opinion.^ The duty of the depositary as to the place of delivery has been much questioned. But it may be considered as settled in this country, that a bailee, bound to deliver goods on demand, dis- charges his obligation by delivering or tendering them where they mand reasonable diligence. Why should {h) Jones on Railm. 48. not the rule of the civil law be applied to (/) King v. Richards, 6 Whart. 418 ; such a easel Latoe. culjnc Jim's est non Nelson v. Iverson, 17 Ala. 216; Beach v. intdliqere id quod omnes intelUqunt. Story Berdell, 2 Duer, 327. on Bailm. § 67. See the case of Wilson (m) Rich v. Aldred, 6 Mod. 216. V. Brett, 11 M. & W. 11.3. (n) 2 Kent. Com. 567. ( /) Knowles v. Atlantic & S. L. R. R. (o) Story on Bailm. § 112. Co. 38 Me. 55. 1 A bailee of goods cannot avail himself of the title of a third person to the goods as a defence to an action V>y the bailor except liy showing also that he is defending the action on behalf of and bv the authority of such person. Rogers v. Lambert, [1891] 1 Q. B. 318 ; Dodge v. Mever, 61 Cal. 40.5. See Ex parte Davies, 19 Ch. D. 86 ; Roberts V. Noyes, 76 Me 590; Cook r. Holt, 48 N. Y. 275; Nudd r. Montanye, 38 Wis. 511. 2 Where the bailment is jointly made by two or more, the bailee cannot be required to deliver to one of the bailors, and a possessory action against the bailee cannot be maintained bv less than all. Brandon v. Scott, 7 K. & B. 2.'!4 ; llarjjer i". Godsell, L. R. 5 Q. B. 422 ; Rand v. State Nat. Bank, 77 N. C. 152. 101 9^ THE LAW OF CONTRACTS. [book III. are, or at his own residence or place of business; (j)) but the demand may be made on him elsewhere. ($) It is sometimes said that a depositary has a special prop- *95 erty * in the deposit; but this is perhaps inaccurate. (r) He has the right of possession, but not the right of property ; and may therefore maintain trover, for which possession is enough ; (s) but not replevin, because that action requires property in the plaintiff. (^ If he sell the property, a purchaser, although buying in good faith and without notice, acquires no title, (u) {p) Scott V. Crane, 1 Conn. 255 ; Slingerland v. Morse, 8 Johns. 474. (r/) Higgins V. Emmons, 6 Conn. 76 ; Dunlap I'. Hunting, 2 Denio, 643. (r) Hartop y. Hoare, 3 Atk. 44 ; Story on Bailin. § 93 et set/. (s) Sutton V. Buck, 2 Taunt. 302; Burton v. Hughes, 2 Biug. 173. See also Webb r. Fox, 7 T. R. 391 ; Giles v. Gro- ver, 6 Bligh, 277. {t) At least such is the law in Mas- sachusetts. Waterman v. Robinson, 5 Mass. 303. That was an action of reple- vin. It appeared that the goods replevied, on the 20th of July, 1801, belonged to one Lucas, on which day a commission of bank- ruptcy issued against the said Lucas, and he being declared a bankrupt, by a war- rant from the commissioners, their mes- sengers seized the goods in question, caused them to be appraised and inven- toried, and on the 28th day of the same July delivered them to the plaintiff, tak- ing his obligation to redeliver them on demand. While the goods were so in the custodv of the plaintiff, the defendant, as deputy-siieriff, attached them as the prop- erty of Lucas. Upon the.se facts the court held, that the plaintiff could not recover. Parsons, C. J., said: "Upon these facts we are to decide whether the property of the goods, so that he might lawfully re- plevy them, was in the plaintiff. Trover may be maintained by him who has tlie the possession ; bnt replevin cannot be maintained but by him who has the prop- erty, either general or special. Admitting the commission, and the proceedings under it, to be regular, what property had the plaintiff in the goods ? The general prop- erty was in the commissioners until the assignment, and then in the assignee. The messenger, if any person, had the special property, and not the plaintiff, who had no interest in the goods, but merely had the care of them for safe-keeping. If his po.ssessiou was violated, he might main- tain trespass or trover, but he had no special property, by which he could main- tain replevin ; in which the question is not of possession, but of property, although posse.ssion may be prima facie evidence of property. On this ground we are of opin- ion that the plaintiff cannot maintain this action, he not proving that either the general or special property was in him- self." So in the ca.se of Templeman t\ Case, 10 Mod. 24, it is said that a posses- sory right is sufficient to maintain an action of trespass or case, though not reple- vin. In New York, on tlie other hand, it is held, that replevin will lie in favor of a depositary. See the case of Miller i^. Adsit, 16 Wend. 335. And the court seem to have entertained a similar opin- ion in 21 H. 7, 14 b, pi. 23. That case was as follows : " In replevin. The de- fendant said that the property, &c., was in a stranger. The plaintiff said that the stranger delivered them to him to be re- delivered, aud before any redelivery the defendant took them. Marow said that he would demur upon that plea. For he said it was adjudged in a book, that if one has beasts for a term of years, or to man- ure his land, there he shall have replevin. And the reason is, he has a good property for the time against the lessor, and shall have an action against him if he retakes them. But where he cannot have an action against the lessor it seems that he shall not have replevin. And here there is only a delivery to redeliver to the bailor, so that he has not any property. For if one takes them out of the possession of the bailee, the bailor shall have an action of trespass, and if he recovers by this, the bailee shall never have an action for the taking. Wherefore, &c., Fineux, C. J This is not a new case. For a case similar to this has been several times adjudged in our books ; as the case of letting beasts for a term of years, and to manure land, &c. And in the case here the bailee has a property against everi/ stranger, for he is chargeable to the bailor. And therefore it (u) See McMahon v. Sloan, 12 Penn. St. 229. 102 CH. XI.] BAILMENT. 96 A deposit in a bank has been held to be a loan, not a bail- ment. (<6w) *One cannot be made a depositary against his will. (^') * 96 He must consent ; but the consent may be implied or inferred. A pledgee holding a pledge over after payment of the debt, is a depositary. One finding property need not take charge of it ; if he chooses to do so he becomes a depositary, and is liable for loss from gross negligence, (w) It has been said that he may charge the owner for necessary expense and labor in the care of it. (x) is reasonable that he should recover agaiast auy strauger who takes them out of his possession. Therefore, when the plaintiff has had conveyed to him such special property, it seems that it is good in maintenance of his action. Muroiu then prayed further time, and said that as he was then advised, he would demur upon that plea. Fineux, C. J. And you will not be so well advised to demur upon this plea ; but we shall be as well advised to give judgment against you." (uu) llobinson v. Gardner, 18 Gratt. 509. (y) Lethbridge v. Phillips, 2 Stark. 544. It appeared in this case that a per- son of the name of Bernard, being desir- ous, for particular reasons of his own, that the defendant should see a picture belonging to tlie plaintiff, borrowed the picture of the plaintiff for the purpose of sending it to the defendant, and after- wards delivered it to a son of the defend- ant to be taken to the defendant's house. The defendant's son accordingly took it home, and the picture was, while at the defendant's, much damaged iu conse- quence of having been placed on a mantelpiece near a stove. It appeared tliat the picture had been sent by Bernard to tlie defendant without any request on the part of the latter, and witliout any previous communication between them on the subject. Upon these facts, Abbott, C. J., was of opinion that the action could not be sup[)orted ; that the defend- ant could not, witliout his knowledge and consent, be considered as a bailee of the property. In some instances, he said, it had happened, that property of much greater value than that in the present case had been left at gentlemen's houses by mistake, and in such cases the parties could not be considered as bailees of the property without their consent. (lo) " When a man doth find goods," says Lord Coke, " it liath been said, and BO commonly held, that if he doth dis- possess himself of them, by this he shall be discharged ; but this is not so, as ap- pears by 12 Edw. 4, 13, for he which finds goods is bound to answer him for them who Iwtli the property ; and if he deliver them over to any one, unless it be linto the riglit owner, he shall be cliarged for them ; for at the first it is in his election whether he will take them or not into his custody ; but when he hath them, one only hath then right unto them, and therefore he ought to keep them safely. A man, therefore, which finds goods, if he be wise, will then search out the right owner of them, and so deliver them unto him. If the owner conies unto him, and demands them, and he answers him that it is not known unto him whether he be the true owner of the goods or not, and for this cause he re- fuseth to deliver them ; this refusal is no conversion, if he do keep them for him." Isaac V. Clark, 2 Bulst. 306, 312. The. finder of property, for which a specific reward has been offered, has a lien upou it for the payment of the amount of the reward. VVentworth v. Day, 3 Met. 352. It is otherwise if the offer be merely of "a liberal reward." Wilson v. Guyton, 8 Gill, 213. — If a person finds property, which another has cast away and aban- doned as entirely worthless, he may hold it against the original owner. McGoon u. Ankeny, 11 111. 558. (x) 8o said in Story on Bailm. § 121 a, but it seems never to have been expres.sly ailjudged. Tlie case which comes near- est to it is that of Nicholson v. Chapman, 2 H. Bl. 254. In this case a quantity of timber belonging to the j)laintiff was placed ill a dock on the l)ank of a naviga- ble river, and being accidentally loo.sened, was carried by the tide to a considerable distance, and left at low water upon a towing-path. The defendant, finding it iu that situation, voluntarily conveyed it to a place of safety, beyond the reach of the tide at high-water ; and when the plaintiff 103 *97 THE LAW OF CONTRACTS, [book III, It has been held that one who negligently receives goods not directed to him, is as liable for default as a bailee with compen- sation, (xx) And that a lending for his own purposes by a bailee without compensation, is a conversion, (xi/) * 97 * Perhaps the consent of the finder to take charge of it may be absolutely implied, when the property is forced into his care by extraordinary exigencies, as by tire or shipwreck, and is not at once renounced by him ; and from his consent some obligation of care may be implied. We apprehend, however, that no finder is liable for a refusal to take the property into his hands ; and has no lien on it or any claim for compensation unless for property derelict at sea, which would be governed by the law of Admiralty. If he has any claim whatever, it cannot go beyond the expense and labor necessary for the preservation of the property. It was decided in England, that the finder of lost property has a valid claim against all the world but the owner , and that the place in which it is found can create no exception to this general rule. (^) 1 In Massachusetts, it is held that the afterwards sent to demand the timber to be restored to him, the defendant refused to restore it without payment for his trouble and expense. The plaintiff there- upon brought an action of trover ; and the court held, that the defendant had no lien upon the timber, and that the action was maintainable. Lord Chief Justice Eyre, however, intimated, in the course of his judgment, that the defendant might re- cover for his trouble and expense in some form of action. After declaring that the common law gave the defendant no lien in such a case, and that this case could not be likened to a case of salvage, he said . " It is, therefore, a case of mere finding, and taking care of the thing found (I am willing to agree) for the owner. This is a good office and meri- torious, at least in the moral sense of the word, and certainly entitles the party to some reasonaljle recompense from the bounty, if not from the justice of the owner ; and of which, if it were refused, a court of justice would go as far as it could go towards enforcing the payment." The learned reporter, .in a note to this passage, says : " It seems probable tiiat in such a case, if any action could be main- tained, it would be an action of asxumpsit for work and labor, in which the court would imply a special instance and re- quest, as well as a promise. On a ijnan- turn meruit, the reasonable extent of the recompense would come properly before the jury." See Baker i-. Hoag, 3 Barb. 113; s. c. 7 id. 303; Reeder r Anderson, 4 Dana, 193. It might be found somewhat difficult, however, on technical grounds, to support such an action. See Bartholo- mew V. Jackson, 20 Johns. 28. See also vol. i. p. *446, note {«). {xx) Xewhall v. Paige, 10 Gray, 366. (ry) Persch v. Quiggle, 57 Pa. St. 247. (y) In Bridges f. Hawkesworth, 7 E. L. & E. 424, the plaintiff had picked up from the floor of the shop of the defend- ant a parcel of bank-notes, which he handed to the defendant to keep for the owner. They were advertised by the de- fendant , no one claimed them , three years elapsed ; and the plaintiff demanded them, tendering the cost of the advertise- ment and an indemnity. The county court gave judgment for the defendant ; and tlie Queen's Bench reversed the judg- ment. ' A domestic servant in a hotel who finds a roll of hills in the public parlor is en- titled to the bills as against the hotel-keeper, the owner not being found, Hamnker v. Blanchard, 90 Pa. St. 377 ; and also a servant in a paper mill, as against the mill- owner, to money found by him in paper-stock, Bowen v. Sullivan. 62 Ind. 281 In Durfee v. Jones, 11 R. I. .588, deciding, where the owner's agent offered an old .. Thornton, 6 East, 17. ment during a voyage on which he was (/) Brown i\ Ward, 3 Dner, 660 ; Joliet about to depart. After the voyage was Iron & Steel Co. v. Scioto Fire Brick Co., ended he placed it at the makers' again, 82 111. 548. and then pledged it to the plaintiff, for (?;/) Cocke V. Chaney, 14 Ala. 65; whom the makers, being ignorant of the Hawks ". Hinchcliff, 17 Barb. 492. pledge to the defendants, agreed to hold (mm) Wakeipan r. Gowdy, 10 Bosw. it. The money advanced by tlie defend- 208. See p. * 111, note 1, ante. ants not having been repaid, it was held, (run) Jones l-. Merchants Bank, 6 Rob. that the property in the instrument was 162; H.'incock v. Franklin Fire Ins. Co., in the defendants. The counsel for the 114 Mass. 155. plaintiff contended, that the possession (») Per Walworth, C, in Dykers v. of the chronometer having been parted Allen, 7 Hill (N. Y.), 497. with by the defendants, their property (o) Hayes v. Riddle, 1 Sandf. 248 ; in it was entirely lost, upon the ground. Reeves v. Capper, 5 Bing. (N. C.) 136. that where the party to whom a personal In this last case one Wilson, the captain chattel is pledged parts with the posses- of a ship, pledged his chronometer, then sion of it, he loses all right to his pledge. in the possession of the makers, to the But, per Tindat, C. J. : " As to the sec- defendants, the owners of the ship, in oud point we agree entirely with the 1 " Authority to sell at public or private sale " certain notes pledged as collateral to secure the pledgor's debt, will not authorize the pledgee to compromise with the maker for less than the face of the notes. Union Trust Co. v. Rigdon, 93 111. 458 ; Zimple- man v. Veeder, 98 111. 613. 126 CH. XI.] BAILMENT. * 120 But while it is essential to a pledge, that delivery should be made, and possession retained, it seems that there may be a hypothecation — whether we translate this pledge or mortgage — of property which cannot yet be delivered. Thus, in admiralty, at least, and in equity, property not yet in existence — as a ship to be built — may be effectually hypothecated, {p) At common law, pledges could not be taken in an exe- cution * in favor of a third party against the pledgor. (5') *120 The common law, however, has been changed to some extent in this particular, in some of our States, by statutes. (?-) But provision is always made to protect the interest of the pledgee, and to give to the attaching creditor only the interest of the pledgor. The pledgee cannot retain a pledge for the purpose of securing other debts than those for which it was given, unless he can show that that was the intention of the parties, (s) The pledgee, after the pledgor fails to pay the debt as due, may sell the pledge. If there be no definite time for the payment of the debt, the pledgee may require an immediate payment, but must, as we have seen, demand payment before selling the pledge. In all cases of sale, the pledgee must, before the sale, give a rea- sonable notice to the pledgor, {t) ^ And it is safer and better to doctrine laid down in Ryall v. Rolle, 1 butler to a stranger would have been; Atk. 16.5, that in the case of a simple and could give no more right to the pawn of a personal chattel, if the credi- bailee than Captain Wilson had himself." tor parts with the po.ssession, he loses See also Roberts y. Wyatt, 2 Taunt. 268 ; his property in the pledge; but we think Spalding v. Adams, 32 Me. 211 ; Flory v. the delivery of the chronometer to Wil- Denny, 11 E. L. & E. 584; s. c 7 Exch. son under the terms of the agreement 581. itself was not a parting with the posses- (p) Seethe Hullof aNewShip, Daveis, sion, but that the possession of Captain 199. See also Langton v. Horton, 1 Hare, Wilson was still the possession of Messrs. 549. Capper. The terms of the agreement (17) Bro. Abr. tit. Pledgps, 28 ; Rex v. were, that 'they would allow him the Hanger, 3 Bulst. 1, 17 ; Badlam y. Tucker, use of it for the voyage;' words that 1 Pick. 389, 399. In this last case, a gave him no interest in the chronometer, fiiimre is made whetlier the creditor might hut only a license or permission to use it not remove the incumbrance, and then for a limited time, while he continued as attach the property. See also Pomeroy their servant, ami employed it for the v. Smith, 17 Pick. 85; Srodes v. Caven, purpose of navigating their ship. Dur- 3 Watts, 258. ing the continuance of the voyage, and (r) See Averill v. Iri.sh, 1 Gray, 2.54 ; when the voyage terminated, the posse.s- Stief v. Hart, 1 Comst. 20. sion of Captain Wilson was the possession (.s) Jarvis v. Rogers, 15 Mass. 389; of Messrs. Capper; just as the possession Rusliforth v. Hadfield, 7 East, 224; of plate by a butler is the possession of Walker v. Birch, 6 T. R. 258; Robinson the ma.ster; ami the delivery over to the r. Frost, 14 Barb. 536. See p. *104 note, jjlaintiff was, as between Captain Wilson ante. and the defendants, a wrongful act, just (t) Tucker v. Wilson, 1 P. Wms. 261 ; as the delivery over of the plate by the s. c. 1 Bro. P. C. 494 ; Lockwood v. Ewer, 1 That the ])ledgee of a note may sell it, see Potter v. Thompson, 10 R. 1. 1 ; Donohoe V. Gamble, 38 Cal. 340, — K. 127 * 121 THE LAW OF CONTRACTS. [BOOK III. have a judicial sale by a decree in chancery, whenever the State courts have power to make such decree. Such judicial process was once necessary to make the sale valid ; but it is not so now. (u) The pledgee should not buy the pledge himself ; (v) and he should take all proper and customary precautions, in the time and manner of sale, of notice, or advertisement, and the like, to protect effectually the pledgor's interest and property. Nor should he sell at private sale, (vv) unless the terms of the pledge authorize this, (vw) nor more than enough to pay his debt, if the pledge consist of separable parts ; and if the proceeds do not pay his debt, he may sue for the surplus. Where a pledgor pledges for himself, or as agent or factor, by the act of pledging, it has been held, that he impliedly * 121 warrants * that he or his principal is the owner of the property pledged ; and he will be liable to the pledgee for damages incurred by reason of defective title, (w) One who voluntarily made a pledge to secure an illegal demand (illegal because the contract was made on Sunday), was not per- mitted to reclaim the pledge without paying the demand, (ww) At common law, there cannot be a pledge of that which does not exist, or is not then the property of the Y^ledgor. (tax) And if one who has acquired stock by fraud, pledges it for a pre- existent debt, the pledgee acquires no better title than the pledgor had. (wy) This bailment is terminated either by payment and satisfaction of the debt by acts of the party, or operation of law, or by its merger and discharge by the taking of such higher security as operates as a release of the simple debt for which the pledge was given. 9 Mod. 275 ; 8. c. 2 Atk. 303 ; Hart v. non-payment is denied. Micklewaite v. Ten Eyck, 2 Johns. Ch. 100; Stearns v. Winter, 19 Law Times, 61. This case Marsh, 4 Denio, 227 ; Castello v. Bank of seems opposed hv tlie general tendency Albany, 1 N. Y. Leg. Obs. 25 ; De Lisle of the American cases. ISee, on this sub- V. Priestman, 1 P. A. Browne, 176 ; Bryan ject. Brass v. Worth, 40 Barb. 648 ; Union V. Baldwin, 52 N. Y. 233 ; Stevens v. Trust Co. v. Kigdou, 93 111. 458. Hurlbut Bank, 31 Conn. 146; Gay v. (v) 1 Story, Eq. §§ 308-323. Mos.s, 34 Cal. 125; Luckett y. Townsend, (vv) Baltimore, &c. Ins. Co. v. Dal- 3 Te.x. 119. In this last case it was de- rymple, 25 Md. 269. See, however, £x cided that a stipulation in a contract of parte Fisher, 20 S. C. 179. pledging, that if the pledge be not re- (vw) Bryson v. Rayner, 25 Md. 424. deemed within a specified time, the right of {w) Mairs r. Taylor, 40 Pa. 446. property shall be absolute in the pawnee, (ivw) King v. Green, 6 Allen, 139. can have no effect, and is absolutely in- (wx) Smithurst v. Edmunds, 1 McCar- operative. And see Milliken v. Dehon, ter, 408. 10 Bosw. 325. (wy) Cleveland i-. State Bank, 16 Ohio, (m) Id. But in a late case in Eng- 836. See Goodwin v. Mass L. & T. Co., land, the right of a pledgee to sell upon 152 Mass. 189, 199. 128 CH. XI.] BAILMENT. * 121 SECTION V. LOCATIO. Locatio, in general, means a hiring; and as there are many ways of hiring, the general topic includes these particular forms, and usually the classification and the terms of the civil law are used. 1. Locatio kei, — where a thing is hired and the hirer acquires a temporary use of the thing bailed. 2. Locatio operis faciendi, — where the bailee is hired to do some work or bestow some care on the things bailed. 3. Locatio operis mercium vehendarum, — where the bailee is hired to carry the goods for the bailor from one place to another. This form of locatio embraces also the carrying of passengers. We shall consider these subjects in this order ; and begin with Locatio rei. When the owner of a thing lets it to another, who is to have the use of the thing, and to pay a compensa- tion therefor, the contract between these parties is for their mutual benefit. The bailee is bound therefore only to take or- dinary care of the thing bailed. (J?) But this obligation varies {x) Reeves v. The Ship Constitution, clear he can be liable only for such injur- Gilpin, 579 ; Bray r. Mayne, Gow, 1 ; ies as are shown to come from an omis- Millon V. Salisbury, 13 Johns. 211 ; Har- sion of that diligence; or, in other words, rington v. Snyder, 3 Barb. 380 ; Hawkins for ordinary negligence. If a man hires a V. Pythian, 8 B. Mon. 51.5. In the case horse, he is bound to ride it moderately, of Columbus V. Howard, 6 Ga. 213, 219, and to treat it as carefully as any man of Mr. Justice Lumpkin said : " The question common discretion would his own, and to has been much mooted, what degree of supply it with suitable food ; and if he care or diligence is required of the hirer, does so, and the horse, in such reasonable while using the property for the purpose, use, is lamed or injured, he is not respon- and within the time, for which it was sible for any damages." — In Dean v. hired. Sir William ./o;/es considered that, Keate, 3 Camp. 4, it is held, that if, upon the contract being one of mutual benefit, a hired horse being taken ill, the hirer the hirer was bound only for ordinary calls in a farrier, he is not answerable for diligence, and of course was responsible any mistakes which the latter may com- only for such. And this opinion appears mit in the treatmeut of the horse ; but if to be now settled, upon principle, to be instead of that lie prescribes for the horse the true exposition of the common law. himself, and from unskilfulness gives him He ought, therefore, to use the thing, and a medicine which causes his death, al- to take the same care in the preservation thougli acting bona fide, he is liable to the of it which a good anil prudent father of a owner of the horse as for gross negligence, family would take of his own. Hence the — A somewhat peculiar question of lia- hirer of a thing, being responsible only bility arose in tlie case of Davey v. Cham- for that degree of diligence which all pru- berlain, 4 Esp. 229. It was an action on dent men use, that is, which tlie gene- the case for negligently driving a chaise, rality of mankind use, in keeping their whereby the plaintiff's horse was killed, own goods of the same kind, it is very The two defendants were proved to have VOL. II. 9 129 122 THE LAW OF CONTRACTS. [book III. *122 *witli the nature of the thing and the circumstances. One who hires a valuable watch, easily disordered by any negligence, must be more careful than if the watch were cheaper and stronger. So of a valuable horse. So it should be if any known circumstances gave the thing hired a peculiar value, call- ing for peculiar care. Still it is only ordinary care, as the law defines that, because the rule must be, that the hirer is bound to render such care in each case, as the owner has a right to expect that a man of ordinary capacity and caution would take of the same thing, if it were his own and under the same circum- stances, {y) been together in the chaise when the acci- dent happened ; but Chamberlain, one of the defendants, was sitting in the chaise smoking, and it was driven by the other. Erskine, for the defendants, put it to Lord Ellenborough whether he was not entitled to have a verdict taken for Chamberlain, the ground of his application being, that no verdict ought to pass against him, the injury having proceeded from the igno- rance -or uuskilfulness of the other de- fendant, who was the person driving the chaise, and in whose care and under whose management it then was. Cham- berlain remaining perfectly passive, and taking no part in the management or direction of the horse. Eut liis lordship said, that " if a person, driving his own carriage, took another person into it as a passenger, such person could not be sub- jected to an action, in case of any mis- conduct in the driving by the proprietor of the carriage, as he had no care nor concern with the carriage ; but if two persons were jointly concerned in the carriage, as if both had hired it together, he thought the care of the king's subjects required that both should be answerable for any accident arising from the miscon- duct of either in the driving of the car- riage, while it was so in their joint care." The fact turned out to be, that the chaise in question had been hired by both the defendants, and a verdict passed against both accordingly. (//) What we have stated above in the text has been found to be of great im- portance in its application to hired slaves. Inasmuch as a slave is an intelligent being, and may be supposed capable, under ordinary circumstances, of taking care of himself, his employer is not bound to so strict diligence as the hirer of an ordinary chattel. This is clearly shown by the case of Swigert v. Graham, 7 B. Men. 661. It was an action on the case, brought by the plaintiff against the 130 owners of a certain steamboat to recover for the loss of one Edmund, the plaintiff's slave, who, while employed as a hired hand upon the defendant's boat, was drowned in the Kentucky River. A far- shall. C. J., in delivering the opinion of the court, said : " The material question in the case is, whether, under the actual circumstances, the owners of the boat are lial)le for the loss of the slave by being drowned while in their employ. And this question depends not merely upon the general principles applicable to the case of bailment on hire, as they are stated or adjudged in relation to inanimate or to mere animal property, but upon the proper application or modification of those principles in reference to the particular case of a slave hired for service as a com- mon hand on board of a steamboat en- gaged in the navigation of the Kentucky and Ohio Rivers. The rule that the bailee on hire is bound to ordinary dili- gence, and responsible for ordinary neg- lect, is doubtless true in all cases of their bailment, unless there be fraud, or a special contract by which it may be varied in the ])articular case. But what is or is not ordinary diligence may vary, not only with the circumstances under which the subject of it may be placed, but with the nature of the suiiject itself. That which, in respect to one species of property, might be gross neglect, might in respect to another species be extraordinary care. And, under peculiar circumstances of dan- ger, extraordinary exertions may be re- quired of one who is bound only to ordinary diligence, or, in other words, the circum- stances may be such, that extraordinary exertions are nothing more than ordinary diligence. Ordinary diligence, then, means that degree of care, or attention, or exer- tion, which, under the actual circum- stances, a man oi ordinary prudence and discretion would use in reference to the particular thing were it his own property ; CH. XI.] BAILMENT. 123 *The hirer is equally responsible for the negligence of * 123 his servants as for his own ; provided that this negligence or in doing the particular thing, ■were it his own CDijcern. And where skill is re- quired for the undertaking, ordinary dili- gence implies the possession and use of competent skill. . . . Applying these principles to the ca.se of a slave hired either for general or .special .'service, we come at once to the conclusion, that being ordinarily capable, not only of voluntary motion, bj' which he performs various ser- vices, but also of observation, experience, knowledge, and skill, and being in a plain case at least, as cajiable of taking care of his own safety as the hirer or owner him- self, and presumably as much disposed to do it, from his possession of these quali- ties, with habits and disposition of obedi- ence implied in his condition, and on which the hirer has a right to rely, lie may be expected to understand and perform many, and indeed most, of his duties, by order or direction more or less general, without constant supervision or physical control, and may be relied on, unless under extraordinary circumstances, ior taking care of his own safety without particular instructions on that subject, and a fortiori, without being watched or followed or led, to keep him from run- ning unnecessarily into danger. What sort of care or diligence, then, is the hirer to use for the safety or preservation of the hired slave ? Omitting to notice what may be necessary to his health and comfort, we should say that he ought not, by his orders, to expose him to extraor- dinary hazards, without necessity, though they be incident to the nature of the ser- vice ; and that when he does expose him to such hazards, necessarily or properly, he should use such precautions, by in- structions or otherwise, as the circum- stances seem to require, and as a man of ordinary prudence would use in so expos- ing his own .slave. It might be necessary in sending him to the bottom of a deep well, or to the eaves of a .steep roof, to tie a rope around his waist. But if he were possessed of ordinary intelligence, it would not be required that, in sending him across a wide bridge, he should even be cautioned not to jump or fall from it. Nor if there were a ford as well as a bridge crossing the river, both ordinarily safe, and with each of which the sla\e was well acquainted, would it be deemed necessary to direct him to take the one and avoid tlie other, unless there were some circumstances known or appre- hended at the time, changing the usual condition of one or the other. Certainlv it would not be necessary, when there was on the road which he .was accus- tomed to travel a ford to be crossed, with which he was well acquainted, to tell him either not to go out of the usual track into the deep water, or not to take an- other road which he was not accustomed to travel, and which passed the river at a more dangerous place. In the navigation of our rivers by steamboats, it miglit be- come necessary, in a particular case, that some one on board should swim to the shore with a line, though the attempt might be attended with great danger. This, though incident to the navigation, would be an extraordinary hazard, and doubtless it should not be ordered, nor even permitted to be incurred, without the use of such precautions, within the power of the captain or other officer, as experience might indicate for the occa- sion. But when the boat is aground, on a bar or shoal, wjiere the water on each side, and to the shore on each side, is not more than three feet deep, it could not be deemed necessary, in ordering a particu- lar individual to go to the shore through the water, to do more, even if he were unacquainted with the bar, and could not see it plainly, than to point out its extent, or the direction which he must take to the shore, or to advise caution in his pro- ceedings, or to give such instruction as was necessary. But if he were well ac- quainted witli the bar, or it were plainly visible through the water, and were, moreover, wide and safe, the direction to go to the shore would of itself be suffi- cient. It might be ordinarily assumed that the individual, whether white or black, slave or freeman, if he had com- mon sense, would not go from the bar into the deep water, and the person giv- ing the order would not be bound to anticipate such a deviation, and either to forbid it, or in any manner to guard against it, but might pursue his own employment. Nor tlo we suppose that, if he knew the individual to be a swimmer, and saw that he was purposely deviating from the bar, with the view of swimming a few yards to the shore, he would be bound to order him back, or to caution him against it, unless, from the tempera- ture of the water, or some other fact, he had reason to apprehend danger. The direction to go to the shore on such an occasion implies, without more said, that he should go by the known and safe way. It is only when, from the uncertainty or difficulty of the wav, or from some other 131 125 THE LAW OF CONTRACTS. [book III. *124 occurred *when the servant was in the discharge of his duty, or obeying the commands or instructions of his master, express or implied. When not so employed, the person, though generally a servant, does not then stand in the re- * 125 lation or act in the capacity of a * servant so as to fasten a liability for his conduct on his master; and a master, therefore, would not be responsible for an injury committed by a servant from his ow^n wilful malice, in which the master had no share. (2) If the loss occur through theft or robbery, or the injury result from violence, the hirer is only answerable when his imprudence or negligence caused or facilitated the injurious act. If a bailee for hire sells the property without authority, the bailor may have trover against even a Jjond fide purchaser, (a) When the thing bailed is lost or injured, the hirer is bound to account for such loss or injury. But, when this is done, the proof of negligence or want of due care is thrown upon the bailor. and the hirer is not bound to prove affirmatively that he used reasonable care, {h) circumstance, there may be danger in executing the order given, that it is neces- sary, in the exercise of ordinary care or diligence, to accompany it with any other words or acts than such as are essential to make it intelligible and practicable." This point is well illustrated also by the ca.se of Heathcock v. Pennington, 11 Ired. L. 640. The defendant had hired of the plaintiff a slave boy, about twelve years of age, to drive a whim near the shaft of a gold-mine. The boy, while working there at night, being without an overcoat, had gone to the fire to warm himself, and on his being called to start his horse, being drowsy, fell into the mine and was killed. It wa« held, in an action by the plaintiff to recover the value of the slave, that the defendant was bound to use such diligence as a man of ordinary prudence would, if the property were his own ; that as the slave was a rational being, so much care was not necessary as would be required of the bailee of a brute or an inanimate thing ; that as the plaintiff had let the slave for this very purpose, he must be presumed to know all the dangers and risks incident to the employment; and, therefore, as it did not appear that the usual risks were in any way increased, that he could not recover. But where a slave was hired to work in gold-mines, in which wooden buckets wore used for rais- ing up water and ore, in which w'ere valves for letting out the water, and an 132 iron drill was dropped into a bucket, and fell through the valve, and split the skull of the slave, it was held to be a want of ordinary care. Biles r. Holmes, 11 Ired. L. 16. See also, as to the duties and re- sponsibilities of the hirers of slaves, Mc- Call V. Plowers, 11 Humph. 242 ; Mims v. Mitchell. 1 Tex. 44-3 ; Sims v. Chance, 7 Tex. 561; Mitchell v. Mims, 8 Tex. 6; McLauchlin c Lomas, 3 Strob. L. 85; Alston V. Balls, 7 Eng. (Ark.) 664; Jones V. Glass, 1.3 Ired. L. 303. (z) Finucane v. Small, 1 Esp. 315; Foster v. Essex Bank, 17 Mass. 479; Brind v. Dale, 8 C. & P. 207. See also Butt V. Great Western Railwav Co. 7 E. L. & E. 443; s. c. 11 C. B. 140. But see Sinclair ;-'. Pearson, 7 X. H. 219. See also, ante, vol. i. p. * 102, n. (r). ('() Loeschman v. Machin, 2 Stark. 311 ; Cooper i\ Willomatt, 1 C. B. 672. (b) Beckman r. Shouse, 5 Rawle, 179; Clark r. Spence, 10 Watts, .335: Runvan V. Caldwell, 7 Humph. 134 ; Piatt i'. Hib- bard, 7 Coweu, 400, n. (o); Schmidt v. Blood, 9 Wend. 268; Foote v. Storrs, 2 Barb. 326 : Harrington v. Snvder, 3 id. 380; Claflin v. Meyer, 75 X. Y. 260. This question was very thoroughly dis- cussed in the case of Logan c. Matthews, 6 Pa. St. 417. The court below in that case instructed the jury, that " when the bailee returns the property in a damaged condition, and fails, either at the time or subsequently, to give any account of the CH. XI.] BAILMENT. 126 *The owner must deliver the thing hired in a condition * 126 to be used as contemplated by the parties ; (c) ^ nor may he matter, in order to explain how it oc- curred, the law will authorize a presump- tion of negligence on his part. But when he gives au account, although it may be a general one, of the cause, and shows the occasion of the injury, it then devolves on the plaintiff to prove negligence, unskil- fulness, or misconduct." And this in- struction was held to be correct. Coulter, J , said . " The books are extremely meagre of authority on this subject of the onus proband i in cases of bailment. But reason and analogy would seem to establish the correctness of the position of the court below. All persons who stand in fiduciary relation to others are bound to the observance of good faith and candor. The bailor commits his prop- erty to the bailee, for reward, in the case of hiring, it is true; but upon the implied undertaking that he will observe due care in its use. The property is in the pos- session and under the oversight of the bailee, whilst the bailor is at a distance. Under these circumstances, good faith requires, that if the property is returned in a damaged condition, some account should be given of the time, place, and manner of the occurrence of the injury, so that the bailor may be enabled to test the accuracy of the bailee's report, by suitable inquiries in the neighborhood and locality of the injury. If the bailee re- turns the buggy (which was the property hired in this case), and merely says, ' Here is your property, broken to pieces,' what would be the legal and just pre- sumption '' If stolen property is found in the possession of an individual, and he will give no manner of account as to the means by which he became possessed of it, the presumption is that he stole it himself. This is a much harsher pre- sumption than the one indicated by the court in this case. The bearing of the law is always against him who remains silent when justice and honesty require him to speak. It ha.s been ruled that neg- ligence is not to be inferred, unless the state of facts cannot otherwise be ex- plained. 9 Eng. Jur. 907. But how can they be explained, if he in whose knowl- edge they rest will ncjt disclose them ^ And does not the refusal to disclose them justify the inference of negligence '? Judge Storjj, in his Treatise on Bailments, § 410, says, that it would seem that the burden of proof of negligence is on the bailor, and that proof merely of the loss is not sufficient to put the bailee on his defence. The position that we are now discussing, however, includes an ingre- dient not mentioned by Judge Story and on which it turns ; that is, the refusal or omission of the bailee to give any account of the manner of the loss, so as to enable the bailor to shape and direct his inqui- ries and test his accuracy. Judge Story says, there are discrepancies in the au- thorities. In the French law, as stated by him, § 411, the rule is different, and the hirer is bound to prove the loss was without negligence on his part. And he cites the IScottish law to the effect that if any specific injury has occurred, not manifestly the result of accident, the onus prohundi lies on the hirer to justify him- self by proving tlie accident. That would be near the case in hand, because the in- jury here was not manifestly the result of accident, and the hirer did not even explain or state how the accident oc- curred. The case of Ware ;;. Gay, 11 Pick. 106, seems to have a strong analogy to the principle asserted. It was there ruled, that where a public carriage or conveyance is overturned, or breaks down without any apparent cause, the law will imply negligence, and the burden of proof will be on the owners to rebut the pre- sumption. The prima facie evidence arises from the fact that there is no ap- parent cause for the accident And in the case in hand, there was no apparent cause ; nor would the hirer give any account of the cause. We think, there- fore, there was no error in adding to the answer the qualification or explanation which we have been considering." See also Skinner v. London, B. & S. K. Co. 2 E. L. & E. 360; s. c. 5 Exch. 787. And in Bush v. Miller, 13 Barb. 481, where property was delivered to the defendant, who received the same, and engaged to forward it, but it was never afterwards seen nor heard of, and the defendant never accounted for it in any way, it was held, that he was prima facie liable for the goods without proof of negligence, which proof could not be required unless he gave some account of his disposition of the property. (c) Sutton 'y. Temple, 12 M & W. 52, 60. 1 So held in Fowler v. Lock, L. R. 10 C. P. 90, and in Home r. Meakin, II.t Mass. 326, where the jilaintiff recovered for injuries received in consequence of tlie unfitness of a horse furnished hira. 133 * 127 THE LAW OF CONTRACTS. [BOOK HI. interfere with the hirer's use of the thing while the hirer's prop- erty in it, or right to it, continues, {dy Even if the hirer abuses the tiling hired, as a horse hired for a journey, although the owner may then, as it is said, repossess himself of the thing, if he can do so peaceably, he may not do so forcibly, but must resort to his action, (e) And if such misuse of the thing hired termin- ates the original contract, the owner may demand the thing, and, on refusal, bring trover ; or, in some cases, he may bring this action without demand. (/) The owner is said to be bound to keep the thing in good order, that is, in proper condition for use ; and, if expenses are * 127 * incurred by the hirer for this purpose, the owner must repay them. On this subject, however, there is some un- certainty in the cases. The cases usually referred to on this point relate to real estate ; {g) but the hirer of land, or of a real chattel, has neither the same rights nor obligations as the hirer of a personal chattel. Perhaps the conflicting opinions may be reconciled, by regarding it as the true principle, that the owner is not bound (unless by special agreement, express, or implied by the particular circumstances) to make such repairs as are made necessary by the natural wear and tear of the thing, or by such accidents as are to be expected, as the casting of a horse-shoe after it has been worn a usual time ; but is bound to provide that the thing be in good condition to last during the time for which it is hired, if that can be done by reasonable care, and afterwards is liable only for such repairs as are made necessary by un- expected causes. (Ji) ^ (d) Hickok r. Buck, 22 Vt. 149. Tn damages for the loss of the use of the this case the defendant leased to the plain- horse during the residue of the term, tiff a farm for one year, and, by the con- ie) Lee v. Atkinson, Yelv. 172. tract, was to provide a horse for the plain- ( /') See the case of J'ouldes ?'. Wil- tiff to use upon the farm during the term, loughby. 8 M. & W. 540, as to what will At the commencement of the term he amount to a conversion, furnished a horse, but took him away (g) Pomfret y. Ricroft, 1 Wms. Saund. and sold him before the expiration of the 321; Taylor v. Whitehead, Dougl. 744; term, without providing another. It was Cheetham r. Hampson, 4 T R.318; Fer- held, that the plaintiff acquired a special guson v. , 2 Esp. 590 ; Horsefall v. property in the horse, by the bailment, Mather, Holt, 7. and was entitled to recover, in an action (h) There is very little direct author- of trover, for the horse so taken away, ity in our books upon this question. In 1 In Roberts v. Rtuyvesant Safe Deposit Co 12.3 N. Y. 57 it appeared that the plaintiff had hired a safe of the defendant. The plaintiff placed therein certain (J S. bonds and other securities. A police captain havmg a search warrant stating that certam U. S. bonds had been stolen and were concealed in the plaintiff's safe was allowed by the defendant to break open the safe and remove the contents, though there was nothing in the safe described in the warrant except the U. S. bonds and those were not identified by number, date, issue or otherwise as the stolen property. It was held that the defendant had failed to exercise proper care, and was lianle in damages. ^ Where tlie hirer of a horse with the owner's knowledge placed it for medical 134 CH. XI.] BAILMENT. 128 On the part of the hirer there is an implied obligation to use the thing only for the purpose and in the manner for which it was hired. (2) And if he uses it in a different way or for a longer time, it is held that he may be responsible for a loss thence occurring, although by inevitable casualty, (ii) In general, the hirer must in no way abuse the thing hired, (j) But where hired chattels are lost during a * misuser, it seems that * 128 trover will not lie, unless the owner can show that the misuse?' caused the loss. (^') The hirer must surrender the property at the time appointed ; and if no time be specified in the contract, then whenever called upon after a reasonable time ; and what this is will be determined in each case by its nature and circumstances. (Z) By the contract of hire, the hirer acquires a qualified property in the thing hired, which he may maintain against all persons Pomfret v. Ricroft, 1 Wins. Saund. .321, Lord Hale says : " If I lend a piece of plate, aud covenant by deed that the party to whom it is lent shall have the use of it, yet if the plate be worn out by ordi- nary use aud wearing without my fault, no action of covenant lies against me." But this is only a dictum. So iu Taylor V. Whitehead, Dougl. 744, Lord Mansfield says, in general terms, that by the com- mon law he who has the use of a thing ought to repair it. But he probably had his mind upon real property. Iu the case of Isbell v. Norvell, 4 Gratt. 176, it is held, that where the hirer of a slave pays a physician for attending on the slave while he is hired, he is entitled to have the amount repaid him by the owner of the slave. But in the case of Redding V. Hall, 1 Bibb, 536, the same question was decided the other way, after a care- ful examination of the authorities. It is impossible to say with certainty what the true rule of law is, until we have further adjudication. But it seems to be certain, that the hirer of an animal is bound to bear the expense of keeping it, unless there is an agreement to the contrary. See Handfordy. Palmer, 2 Br. & B. .359. (*) Duncan v. Railroad Co. 2 Rich. L. 613; Columbus i-. Howard, 6 Ga. 213. {li) Lewis V. McAfee, 32 Ga. 465. (j) Homer v. Thwing, 3 I'ick. 492 ; Rotch V. Hawes, 12 id. 136; Wheelock v. Wheelwright, 5 Mass. 104 ; De Tollenere V. Fuller, 1 So. Car. Const. Rep. 116; Duncan u. Railroad Company, 2 Rich. L. 613; Columbus v. Howard, 6 Ga. 213; Harrington v. Snyder, 3 Barb. 380 ; Booth V. Terrell, 16 Ga.'20. In the case of Mul- len V. Ensley, 8 Humph. 428, the defend- ant having hired a slave of the plaintiff, for general and common service, set him to blasting rocks, and the slave while so engaged was severely injured. The court held the defendant liable. And Truli/,^., said : " We are of opinion tliat the em- ployment of blasting rocks is not an ordinary and usual one ; that it is at- tended with more personal danger thau is common to the usual vocations of life ; aud tliat a bailee who has hired a negro for general and common service, has no right to employ him in such an occupa- tion without the consent of his owner." But in the case of McLauchlin v. Lomas, 3 Strob. L. 85, where a negro was let to hire as a house carpenter, and was em- ployed by the hirer in his shop, where he carried on the business of a house car- penter, and where his workmen were ac- customed to use a steam circular-saw, when necessary for their work at tlie business, and the negro, while at work at the saw, received wounds of which he died, and in an action t)y the owner to recover the value of the slave from the hirer, the jury gave a verdict for the de- fendant, the court refused to grant a new trial. Richardson , J., dissented. (k) Harvey v. Epes, 12 (iratt. 1.53. (/) See Esmav v. Fanning, 9 Barb. 176. treatment with a third person, the latter was allowed to recover for his services in an action against the owner. ■ Leacli v. French, 69 Me. 389. 135 * 129 THE LAW OF CONTRACTS. [BOOK III. except the owner, and against him so far as the terms and condi- tions of the contract, express or implied, may warrant, (m) During the time for which the hirer is entitled to the use of the thing, the owner is not only bound not to disturb him in that use, but if the hirer returns it to the owner for a temporary purpose, he is bound to return it to the hirer, (n) But if a bailee of any chattel, without authority, mortgage it to secure his own debt, and the mortgagee takes possession, the owner may have an action there- for without any demand, (o) It is held, that if a hirer fastens hired chattels to real estate, in such a way that they cannot be removed without injury to the real property, a purchaser of the land, without notice, holds the chattels, and the owner of them must look to the hirer for compensation, (p) The letter for hire acquires an absolute right to, and property in, the compensation due for the thing hired ; and this compensa- tion or price, where not fixed by the parties, must be a reasonable price, to be determined, like the time for which the thing is hired, by the nature and circumstances of the case. * 129 *The contract of hire may be terminated by the expira- tion of the time for which the thing was hired, or by the act of either party within a reasonable time, if no time be fixed by the contract. Or by the agreement of both parties at any time. Or by operation of law, when the hirer becomes the owner of the thing hired. Or by the destruction of the thing hired. If it perish without the fault of either party, before any use of it by the hirer, he has nothing to pay ; if after some use, it may be doubted how far the aversion of the law to apportionment would prevent the owner from recovering p7v tanto ; probably, however, where the nature of the case admitted a distinct and just appor- tionment, it would be applied. (5) Either party being in fault would of course be answerable to the other. And the contract might provide for the contingency of the destruction of the prop- erty in any manner. Goods are often hired in connection with real estate ; as where one hires a house with the furniture therein, or a room with its (m) See Hickok i'. Buck, 22 Vt. 149, the period of his service, see the follow- cited an. 591 ; Mansfield v. Cole, 61 111. 191 ; Mavnard v. Buck, 100 Mass. 40; McCarthy v. Wolfe, 40 Mo. 520; Eastman, V. Patterson, 38 Vt. 146. 138 CH. XI.] BAILMENT. 132 there is auy such established usage, we think that, generally, where an owner leaves a chattel with a workman who is to labor upon it, and tlie chattel is accidentally destroyed when this labor has been partially performed, each loses what each one has in the thing destroyed; the owner his property, and the workman his labor. If the thing perishes from intrinsic defect, the reason for requiring j^ro tanto compensation from the owner would be stronger. Where the workman is employed to make a thing out of his * own materials, it is a case of purchase and sale, or * 132 hiring of labor, and not of bailment. But if the principal materials are delivered to the workman, this is a case of bail- ment, although he has to add his own materials to them, (u) (>t) INferritt v. Johnson, 7 Johns. 473. This subject was thoroughly discussed in the case of Gregory v. IStryker, 2 Denio, 628. It was an action of trespass for a wagon, and the defendant, who was a constable, justified the seizure of it under an execution against one Rose ; and the question was, whether the wagon when taken by the defendant belonged to the plaintiff or Rose It appeared th.at the wagon in question formerly be- longed to the plaintiff, and that he made a contract with Rose to repair it for hira. Before the wagon was repaired it was worth but little, except the iron ; none of the wooden part was used in the repara- tion, except the tongue and evener When finished it was worth $90, and Rose's account for repairs amounted to $78.50 The defendant took the wagon in the po.ssession of Rose immediately after it was completed, and sold it on the execution. Upon these facts the court held, tliat the ]3roperty in the wagon still continued in the plaintiff. And Beurdslei/, J., said . " .iVs the value of the new ma- terials and labor used and employed in repairing or reconstructing tlie wagon greatly exceeded that of the old ma- terials used in the operation, it was urged that this was really a contract with Rose to make a new wagon, and not for the repair of an old one ; and, therefore, a.s most of the materials were furnished by him, his right of property in the vehicle wcjiild continue until its completion and delivery under the con- tract. Xo doul)t where a manufacturer or mechanic agrees to construct a par- ticular article out of his cnvn materials, or out of materials the pincipal part of which are his own, the jiroperty of the article, until its completion and dtdivery, is in him, and not in the person for whom it was intended to be made. But it is equally clear, as a general proposition, that where the owner of a damaged, or worn-out article delivers it to another person to be repaired and renovated by the labor and materials of the latter, the property in the article, as thus repaired and improved, is all along in the original owner, for whom tlie repairs were made, and not in the person making them. The agreement in such case is but au every-day contract of bailment — locatto open's faciendi ; and the original owner, so far from losing his general property in the thing thus placed in the hands of another person to be repaired, acquires that right to whatever accessorial addi- tions are made in bringing it to its new and improved condition. Nor am I aware that in this class of cases it is at all im- portant what the value of the repairs, actual or comparative, may be. No case is referred to which proceeds on that dis- tinction, nor any writer by wliom it is adverted to as material. If we adopt this distinction, what shall be its limit '* The general property must be in one party, to the exclusion of the other, for surely they are not tenants in common in the thing repaired. Shall we then say that where the value of the repairs falls below that of the dilapidated article on which they were made, the original owner has title to the article in its im- proved condition, and vice versa, where tliey exceed it in value, title to tlie ar- ticle, as repaired and improved, pa.sses over to the person by whom the repairs were made '? Such a rule would cer- tainly be plain enough, and probably might be ajjplied, witiiout great ditti- culty, to any particular case. But it would b(! found to give rise to a variety of questions never heard of in actions 139 *133 THE LAW OF CONTRACTS. [book in. * 133 * Where materials are delivered to a workmari, and a fabric is to be returned by him, made at his own election, either of those materials or of similar materials of his own, as if a certain weight of silver be given him, to be returned in the form of a silver goblet, or a certain quantity of wheat to be returned in tiour, some difficulty has arisen, and some conflict of opinion. We should regard such a contract not as a locatio operis faciendi, but as creating an obligation of a different character on the part of the workman ; one, indeed, more similar to a debt. If the contract expressly, or by a clear implication, imported that the fabric to be returned should be made specifically of the very material delivered, then, if the material should perish or be lost without the fault of the workman, it would be the loss of the owner. In the former case, where the workman was at liberty to use what materials of like quality he would, those delivered to him would be regarded only as a partial payment in advance for the thing to be made and delivered to him who advanced it, and the workman would be still bound to make and deliver this article, {y) growing out of the reparation of de- cayed or injured articles ; and the rule itself, I am persuaded, has not so much as the shadow of authority for its sup- port. There are a multitude of instances in which the expense of proper repairs greatly exceeds the value of the article on which they are made. It is so in the lowly operation of footing an old pair of boots, and not unfrequently in repairing a broken-down carriage. The principle contended for by the defendant is not necessary for the security of the mechanic by whom the repairs are made. He has a lien for his labor and materials, and may retain possession until his just demands are satisfied. This affords amjde protec- tion to the mechanic. And who, let me ask, ever lieard that this lien was limited to repairs whicli, in value, fall below that of the original article on wliich they are made? Yet this limitation must neces- sarily exist, if the ground assumed by the counsel for the defendant is well taken." See also McConihe v. New York, &c. R. R., 20 N. Y. 49.5 ; Arnott v. Kansas Pacific R. R. 19 Kan. 95. {v) This subject has been very much discussed within tlie last few years, espe- cially in the courts of New York. The earliest case that we have seen is that of Seymour v. Brown, 19 Johns, 44. There the plaintiff sent to tlie defendant, a mil- ler, a quantity of wheat, to be exchanged for flour at the rate of a barrel of tiour 140 for every five bushels of wheat. The de- fendant mixed the plaintiff's wheat with the mass of wheat of the same quality be- longing to himself and others ; but, before the flour was delivered to the plaintiff, the mill of the defendant, with all its con- tents, wheat and flour, was entirely de- stroyed by fire from some unknown cause, and without any fault or negligence on the part of the defendant. It was held, that the defendant was not responsible for the loss of the plaintiff's wiieat, there being no contract of sale by which the property was transferred to the defendant. This case was decided in the year 1821. A few months afterwards a case was de- cided the same way by the court of Aj> peals of Virginia, on a somewhat simi- lar state of facts. Slaughter v. Green, 1 Rand. (Va.) 3. In 1825, the question came up in Indiana in the case of Ewing V. French, 1 Blackf. 353. The facts of the case were almost identical with those in Seymour r. Brown, and the court held, that the plaintiff was entitled to recover- Seymour v. Brown having been cited, Blackford, J., said . " That decision, it i< admitted, cannot be reconciled with ours , but as an independent tribunal, we must, after consulting the authorities within our reach, determine for ourselves as to what the law is, however unpleasant ii may be to differ from a court so eminently dis- tinguished as that of New Y'^ork." lu 1827 came the case of Hard v. West, 7 CH. XI.] BAILMENT. 134 * Closely connected with these questions, and indeed * 134 sometimes identical with them, are those which arise Cowen, 752. In that case the defendant had let a number of sheep to one Dayton, and Dayton, wliile tlie sheep were in his possession, had sold tiieni to the plaintiff. And the question was, whether the prop- erty in the sheep was in Dayton, so that he could transfer tliem to the plaintiff. [Voodworth, J., in remarking upon the evi- dence, which was somewhat uncertain, said : " It seems to me the first question was, ichether the idenlkal sheep, if they sur- vived, were to be returned, or the same num- ber of sheep, and of as good qualitij. In the first case, the title would still have con- tinued in the defendant below, with the right to assert it wheu the period of let- ting expired. If the terms of the letting were as in the second case, or in the alter- native, the right of the defendant below rested in contract ; for he was not author- ized to claim the identical sheep." Sey- mour V. Brown was not cited or alluded to, either by the counsel or tlie court, in Hurd V. West ; but the reporter, in a learned note, in which he discusses the question, considers the former as sub- stantially overruled by the latter, and such would seem to be the case from the language which we have quoted. After- wards in 1839, the precise ((uestion passed upon in Seymour v. Erowu came up again in the same court, in Smith v. Clark, 21 Wend. 83, in which the former case was considered by the court, and overruled. Since that time the courts of New York have uniformly held tlie law as we have stated in the text. See Pierce v. Schenck, 3 Hill (N. Y.), 28; Baker v. Woodruff, 2 Barb. 520; s. c. nom. Norton v. Woodruff, 2 Comst. 153 ; Mallory v. Willis, 4Comst. 76. In this last case, the rule as now held was very clearly stated by Bronson, C. J. " The distinction," says he, " which will be found to run through all the authorities on this subject, with the ex- ception of two cases which iiave been overruled, is this : wheu the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the prop- erty is not changed. But wheu there is no obligation to restore the specific article, and the receiver is at liberty to return an- other thing of equal value, he becomes a debtor to nuike the return, and the title to the property is changed ; it is a sale." The same doctrine is hi'ld in the cases of Wadsworth /•. Allcott, 2 Scld. 64; Foster '.'. Fettibone, 3 Seld. 433; Chase v. Wash- burn, 1 Ohio St. 244; Hyde v. Cooksoa, 21 Barb. 93; Johnston i'. Browne, 37 la. 200; Powder Co. v. Burkhardt, 97 U. S. 110. [In Vermont, contrary de- cisions to Hurd r. West, supra, have been made. Grant v. King, 14 Vt. 367 ; Smith V. Niles, 20 Vt. 315; Downer v. Kowell, 22 Vt. 347.] A similar rule was laid down in Buffum v. Merry, 3 Mason, 478. In that case A delivered yarn to B on a contract that the same should be manu- factured into plaids. B was to find the Jilling, and was to weave so many yards of the plaids at 15 cents per yard, as were equal to the value of the yarn at 65 cents per pound. It was held, that, by the delivery of tiie yarn to B, the prop- erty thereof vested in him. On the other hand, in King v. Humphreys, 10 Pa. 217, where rags were delivered by the plaintiff to the defendant at a certain price, under a special contract, to be made into paper, which was to be re- turned at a certain price, — the difference to be i)aid by a note ; and paper was manufactured out of the identical rags ; it was held, that the property in the rags and paper continued in the plaintiff. But it appeared that this was the usual mode in which the trade naade contracts for working rags into paper ; and the court seemed to put their decision \x\nm the ground that the plaintiff was entitled to receive the paper made of the identical rags delivered. If this was the ground of the decision, tlie case does not conflict with what we have stated to be the es- tablished rule ; the question in the case was one of construction, and it resembled in this respect the case of Mallory v. Willis, already cited. In that case tiie plaintiff agreed to deliver good merchant- able wheat at a flouring miil carried on by the defendant, " to be manufactured into flour." The defendant agreed to deliver 196 pounds of superfine flour, packed in barrels to be furnished by the plaintiff, for every four bushels and fif- teen pounds of wheat. He was to be paid si.xteen cents per barrel, and two cents extra, in case the plaintiff made one shilling net profit on each barrel of flour. The defendant was to guarantee the inspection. Tiie plaintiff was to have the "offals or feed," which the defendant was to store until sold. It was held, that the contract imported a bailment of the wheat, and not a sale, and therefore that the plaintiff might maintain replevin for a portion of the flour manufactured from the wheat delivered under the contract. But Bronson, C. J., and Harris, ,]., dis- sented from the judgment of the court, 141 * 136 THE LAW OF CONTRACTS. [bOOK IH. * 135 when property is * claimed by accession, or by the right which the owner of property has to whatever other prop- * 136 erty becomes inextricably added * to, or combined with it; either naturally, as by vegetable or animal growth or increase ; or artificially, as where a person makes a new article by adding to his own materials those of another; or by adding to the materials of another, his own labor. And again, similar to these questions are those which arise from the confusion of goods, when the property of two or more persons is inseparably and undistinguishably mingled. In the two preceding notes, we have given the principal Ameri- can cases which bear in fact, though not always in name, upon these questions. It will be seen, that it must be difficult to draw distinct and certain rules of law from this adjudication. It may be said, however, that neither the English nor the American law permits a man to claim, hy accession, the property of another, if the claimant originally took the property wrongfully, and as a trespasser, {w) But if one honestly receives goods under a con- tract and with a design to increase their value by his own labor ; and after doing this, subjects himself to an action of trover for a wrongful conversion of them, it seems that he is to be allowed for that increase of value, {x) ^ And if a right by accession takes and delivered able opinions. There was no pursuant to the contract. Coit-en, J., [cit- difference of opinion, however, among the injr] Collins v. Forbes, 3 T. R. 316 ; Barker members of the court, as to the general v. Roberts, 8 Greenl. 101. Cf. Butterfield rule ; the only question between them was v. Lathrop, 71 Pa. 225 ; First Nat. Bank one of construction. — A question some- »'. Schween, 127 111. 573. what similar to the one that we have been {w) This seems to have been a set- considering, arises where materials are tied principle as long ago as the time of delivered to be worked up at the shares, Henry VII. See Year Books, 5 H. 7, 15; as it is termed. But in that case it is and "from that period it can be traced held, that the contract is one of bailment, downwards. For American cases on this and not of sale. The question arose in point, see Frvatt v. SuUivan Co. 5 Hill Pierce v. Schenck, 3 Hill (X. Y.), 28. (N. Y.), 116 -"s. c. 7 Hill (N. Y.), 529. Logs were delivered by the plaintiff at See also Silsbury v. McCoon, 6 Hill (N. the defendant's saw-mill under a contract Y.), 425, 4 Denio, 332, 3 Comst. 379; with the defendant that he should saw Strubbee v. Trustees, 78 Ivy. 481 ; Jewett them into boards within a specified time, i^. Dringer, 3 Stewart, 291, and the re- and that each party should have one half porter's elaborate note ; Foster v. Warner, of the boards. It was held, that the tran.s- 49 Mich. 641 ; Heard v. James, 49 Miss, action inured as a bailment merely, and 236 ; Arpin v. Burch, 68 Wis. 619. that the bailor retained his general prop- (x) Hyde v. Cookson, 21 Barb. 92. erty in the logs till all were manufactured 1 In the case of Isle Royale Mining Co. v. Hertin, 37 Mich. 332, the plaintiffs (defend- ants in error), innocently mistaking the boundary of their land, cut wood belonging to the defendant and hauled it to the liank of a lake. The wood was there worth S2.87^ a cord, and the value of the labor of the plaintiffs in cutting and placing it there was $1.87^ a cord. The defendant took possession and disposed of it. The plaintiffs sought to recover the value of their labor, but it was held that they were not entitled to recover. The decision was followed in Gates >•. RiHe Boom Co. 70 Mich. 309. In the case of Wetherhee v. Green, 22 Mich. 311, an action of replevin, the plaintiff sought 142 CH. XI.] BAILMENT. * 137 place, when tlie materials of many persons are inseparably united together into one article, it seems that there is no better rule, than the somewhat loose one, that the ownership of the whole article rests with the party who was the owner of the principal part of the materials. (?/) If there be a confusion of goods in an article which exists by * combining them extricabl}^ * 137 we think the common law asks whether either party wrong- fully took the goods of the other and mixed them with his own ; for, if so, he has lost his goods, and the whole article belongs to the party whose goods were thus wrongfully taken. ^ But the party thus mingling his goods with those of another does not lose them, if he does this through negligence only, and without ill design, {a) If the party claiming the benefit of the common -law principle as to confusion of goods, has fraudulently countenanced the act of the person by whom the intermixture was made, the object being to conceal the property of the latter from his creditor, the claim of the former will not be sustained against such creditor, (h) (i/) Pulcifer v. Page, 32 Me. 404. v Bowman, 47 N. H. 494. See also Gates (a) Pratt i'. Bryant, 20 Vt. 333 ; Moore v. Kifle Boom Co. 70 Mich. 309. (b) McDowell v. Kissell, 37 Pa. 164. to recover a numher of barrel hoops on the ground that they were manufactured from wood cut wrongfully on his land. The defendant offered to show that he cut the timber in good faith, that it was worth standing but $25, while the hoops were worth $700. The trial court rejected the evidence offered. It was held that the rejection was erron- eous. Cooleij, J., delivered an elaborate opinion, and after carefully examining the cases, adds (pp. 319, 320) : "Some of the cases place the right of the former owner to take the thing in its altered condition upon the question whether its identity could be made out by the senses. . . . But this is obviously a very unsatisfactory test. ... It may often happen that no difficulty will l)e experienced in determining the identity of a piece of timber which has been taken and built into a house, but no one disputes that the right of the original owner is gone in such a case. A particular piece of wood might perhaps be traced without trouble into a church organ, or other equally valuable article ; Vjut no one would defend a rule of law which, because the identity could be determined by the senses, would permit the owner of the wood to appropriate a musical instrument a hundred or a thousand times the value of his original materials, when the party, who, under like circumstances, has doubled the value of another man's corn by converting it into malt, is permitted to retain it, and held liable for the origi- nal value only. . . . No test which satisfies tlie reason of the law can be applied in the adjustment of questions of title to chattels by accession unless it keeps in view the cir- cumstance of relative values." In Winchester v. Craig, 33 Mich. 20.5, standing timber worth $1.,50 a thousand feet had been innocently cut and transported to Toledo, where the value was §12, the damages of the owner of the timber were restricted to the actual injury sustained ; and the same rule was applied in Railway Co. v. Ilutchins, 32 Ohio St. .571 ; 37 Ohio St. 282, in favor of an innocent purchaser from a wilful tres- passer who before the sale had increased the value of the wood threefold. But the Michigan court in Tuttle v. White, 46 Mich. 485, being apparently influenced by fear of encouraging trespassers, refused to restrict the onlinary rule of damages in favor of such a purchaser and disapproved the decision in Eailway Co. v. Hutchins. See further 1 Am. & Kng. Encyclopedia of Law, 56-,58. 1 First Nat. Bank v. Schween, 127 111. .573. And .see 1 Am. & Eng. Encyc. of Law, 57, for full collection of cases. The same principle lias been ap])lied to matters of account. Diversey v. Johnson, 93 111. 547. 148 * 137 THE LAW OF CONTRACTS. [bOOK IH, There may be a confusion of goods made honestly, where the goods of a party are mingled with goods of another party, of the same kind, description, and value. As if A receives ten bushels of corn from B, and, with no wrongful purpose, mingles them with corn of his own, of the same kind. Here, there is a confusion of goods, which, in one sense, is perfect ; for it would be impos- sible to identify a single grain as belonging to either party. But, for all practical purposes, the grain of one party may be as cer- tainly and accurately separated from the grain of the other party, by measuring out ten bushels, as the horse of one might be sepa- rated from the horse of the other by leading him out of the stable. We do not know that the precise case has arisen ; but we should hold the law to be founded upon the practical aspect of the case ; and B would own his ten bushels of the mixture, to be discrimi- nated simply by measuring out; there being, practically, no inextricable confusion of goods, {hb) It is not always easy to determine the rights and obligations of the parties when the workman does his work imperfectly, or in a manner different from that desired, or leaves it unfinished. The difficulty is in the application of the principles of law to the facts, rather than in ascertaining those principles. We think they may be stated thus. If the workman, by a deviation from his instructions, makes his work of no use, he can claim no compensation. If the article be still of some use, and be received by the employer, the work- man may claim pro tanto ; but his claim is open to a set-off or cross-action for any demand the employer may have for damages sustained by the deviation. If the work be done by special con- tract, and there be a departure from its terms, the workman can recover nothing under the contract; but may on a quantum meruit, if his labor was useful to his employer, and its benefit accepted, but subject to set-off as before. And, undoubtedly, it the deviation be important, and the materials have been so used as to have lost their value as such, the employer may abandon them to the workman, and recover of him their value. So if the thing be left imperfect and unfinished, by the fault of the work- man, he can recover nothing ; but if not by his fault, then he (hh) Russell v. Carrington, 42 N. Y. p. 454, an able and exhaustive discussion 118; Warren v. Milliken, 57 Me. 97, of the whole subject. The conclusions of accord with these views. The business the writer agree substantially with those done through grain elevators is now very expressed in the text. He objects to large, and is rapidly increasing ; but the Chase & Others v. Washburne, 1 Ohio law on the subject' is hardly yet deter- (y. s.), 144, opposing them, and refers to mined by authority. There" fs in the McPherson v. Gale, 40 111. 368, as agree- American Law Review, April, 1872, ing with them. 144 CH. XL] BAILMENT. * 138 should have compensation j:?ro tanto, subject to set-off. And if the contract be rescinded by the act or assent *of * 138 both parties, then the workman may recover pro tanto. If the deviation be such as makes the thing more valuable and more costly, the workman cannot recover for this additional cost, unless the employer assented thereto, (c) In this last case, and in some others, it is often important and difficult to determine what is an assent on the part of the em- ployer, and what assent is sufficient. (^) Knowledge and silence might be considered so, if a knowledge of the deviation existed while it was going on, and the employer could put a stop to it. But not if only known afterwards, and when too late to prevent or arrest the alteration. It would certainly be safer and more just for the employer to signify his disapprobation as soon as possible ; and his not doing so would be a circumstance, which, connected with others, as directing other alterations in conform- ity, and the like, might lead to an inference that he assented to and adopted the alteration. Contracts for work and labor in making some article frequently contain a provision, that if there be alterations made with the assent of both parties, such alterations shall be paid for or allowed for at the same rate of payment as that provided by the contract for the work it specifies ; and we think that such would be the operation of law, without an express stipulation, (e) A workman employed to make up materials, or to alter or repair a specific article, has a lien upon the materials of the thing for his pay. (/) But this is merely a passive right of (c) The principles stated above in our value to the goods, has a lien thereon for text are not peculiar to the contract of his charges, there being no special con- which we are now treating. They apply tract inconsistent with such lien. And equally to several other species of con- such lien extends to all the goods deliv- tracts ; and we have already had occasion ered under one contract, and is not con- to consider them somewhat in our chap- fined to the particular portion on which ter on the Hiring of Persons. We shall the labor has be3n bestowed. Accord- defer their further consideration and the ingly where a quantity of logs was citation of cases until we come to our delivered on different days at the defend- Chapter on Construction. ant's saw-mill, upon an agreement to saw (a) See Lovelock i-. King, 1 Mood. & the whole quantity into boards, and the R. 60. See also a/(^e, pp. * 56-58. defendant sawed "a part of them, and (e) See an^e, p. *58, note (r). delivered the boards to the bailor, with- (/) M'lntyre v. Carver, 2 W. & S. out being paid for the service; it was 392. In this case it is decided that every held, that he had a lien for the amount of bailee, who has by his labor and skill his account upon the residue of the logs conferred value upon specific chattels in his possession. And the care, skill, bailed to him has a particular lien on and labor employed by a trainer upon a them; but such lien does not exist in race-horse give him a right of lien, but he favor of a journeyman or day-laborer, waives this lien by contracting to allow So in Morgan i'. Congdon, 4 Comst. 551, the owner of the horse to take it for it is hfltl, that every bailee for hire, who racing whenever ho chooses. Forth v. by his labor or skill imparts additional Simpson, 13 Q. B. 680. VOL. II. 10 145 139 THE LAW OF CONTRACTS. [book III. * 139 * retainer, or, as it is sometimes called, a passive lien, and does not authorize a sale. There is some authority for the proposition, that where the retainer of the property in- volves considerable expenditure, and renders it entirely useless to both parties, the right of sale may exist, by local custom ; {g) but it is well settled that such a lien does not in general author- ize a sale. (^) And while equity will decree a sale in fulfilment of a pledge, it refuses in this case to grant relief to a bailee. {%) Tradesmen and mechanics generally have, by the common law of England and this country, a lien on chattels in their hands in the course of their business ; and this lien and the rules of law applied to it, are considered in our chapter on Liens. Warehousemen. This is also a contract for mutual benefit; and the bailee is therefore held only to ordinary diligence, {j) ^ The forwarding merchants of this country are only subject to the liabilities of warehousemen, {k) unless they act also as (g) Hostler's Case, Yelv. 66; Moss v. Townsend, 1 Bulstr. 207. [h) Jones v. Thurloe, 8 Mod. 172; Chase v. Westmore, 5 M. & S. 180. (j) Thames Iron Co. v. Patent Derrick Co., 1 Johns. & Hem. 93. (j) Chenowith v. Dickinson, 8 B. Mon. 156; Eoote v. Storrs, 2 Barb. .326; Hatchett v. Gibson, 13 Ala. 587 ; Cailiff V. Danvers, Peake, Cas. 114; Piatt i\ Hil)bard, 7 Cowen, 497 ; Knapp v. Curtis, 9 Wend. 60; Batut v. Hartley, L. R. 7 Q. B. 594; Searle v. Laverick,"L. K. 9 Q. B. 122; Schwerin v. McKie, 51 N. Y. 180; Jones V. Morgan, 90 N. Y. 4 ; Safe De- posit Co. V. Pollock, 85 Pa. 391 ; National Bank v. Graham, 100 U. S. 694, 704. But if an uncommon or unexpected danger arise he must use efforts proportioned to the emergency to ward it off. Leek v. Maestaer, 1 Camp. 138. In this case the defendant was the proprietor of a dry- dock, the gates of which were burst open by an uncommonly high tide, and the plaintiff's ship, which was lying there, forced against another ship and injured. It was sworn, that with a sufficient num- ber of hands the gates might have been shored up in time, so as to bear the pressure of the water; and, though the defendant offered to prove that they were in a perfectly sound state, Lord FJIeu- horniiqh /ifid, that it was his duty to have had a sufficient number of men in the dock to take measures of precaution when the danger was approaching, and that he was clearly answerable for the effects of the deficiency. So a wharfinger who takes upon him the mooring and sta- tioning of the vessels at his wharf, is liable for any accident occasioned by his negligent mooring. Wood i-. Curling, 15 M. & W. 626; s. c. 16 id. 628. — The same rule applies to an agister of cattle. Broadwater i-. Blot, Holt, 547. See ante, p.* 131, n. (k) Roberts r. Turner, 12 Johns. 232. This is a very important case on the lia- bility oi forwarding merchants. It was an action on the case against the defendant as a common carrier. The defendant resided at Utica, and pursued the busine.ss of forwarding merchandise and produce from Utica to Schenectady and Albany. It appeared that the course of business was, for th^ forwarder to receive the mer- chandise or produce at his store, and send it by the boatman who transported goods on the Mohawk River, or by wagons to Schenectady or Albany, for which he was paid at a certain rate per barrel, &c., and his compensation consisted in the difference between the sum which he was obliged to pay, and that which he received from the owner of the goods. The defendant received from the plaintiff who resided in Cazenovia, in 5ladison county, by one Aldrich, his agent, twelve barrels of potash, to be forwarded to Albany to one Trotter; the ashes were 1 In Smith v. Frost, 51 Ga. 336, it was held that a warehouseman was not lialde, if the owner knew of the danger to which the property was subjected and could have saved it by the exei'cise of ordinarv care. 146 CH. XI.] BAILMENT. 140 * common carriers, in which case they come under the * 140 peculiar rules to be hereafter noticed. It may sometimes be difficult to determine in which capacity such a person acted at the time of the loss. But in general, the rule is, that if the transit had terminated, and the bailee was only under an en- gagement to forward the goods by another carrier, he is only a warehouseman, (l) Nor will it cause him to continue to be a put on board a boat, to be carried down the Mohawk to Schenectady, and, while proceeding down the river, the boat ran against a bridge and sunk, and the ashes were thereby lost. The defendant's price for forwarding to Schenectady was twelve shillings per barrel, and the price which he had agreed to pay for transporting the goods in question to that place was eleven shillings; he had no interest in the freight of the goods, and was not concerned as an owner in the boats em- ployed in the carriage of merchandise. The judge being of opinion that these facts did not make the defendant a com- mon carrier, nonsuited the plaintiff; and a motion having been made to set the nonsuit aside Spencer, J., said : " On the fullest reflection, I perceive no grounds for changing the opinion expressed at the circuit. The defendant is in no sense a common carrier, either from the nature of his business, or any community of interest with the carrier. Aldrich, who as the agent of the plaintiff, delivered the ashes in question to the defendant, states the defendant to be a forwarder of mer- chandise anil produce from Utica to Schenectady and Albany ; and that he delivered the a.shes, with instructions from the plaintiff to send them to Col. Trotter. The case of a carrier stands upon peculiar grounds. He is held re- sponsible as an insurer of the goods, to prevent combinations, chicanery, and fraud. To extend this rigorous law to persons standing in the defendant's situ- ation, it seems to me, would be unjust and unrea-soiiable. The plaintiff knew, or might have known (f(jr his agent knew), that the defendant had no interest in the freight of the goods, owned no part of the boats employed in the carriage of goods, and that his only business in relation to the carriage of goods con- sisted in forwarding them. That a ])er- son thus circumstanced, should be deemed an insurer of goods forwarded by him, an insurer, too, without reward, would, in my judgment, be not only without a prece- dent, l)ut against all legal principles. Lord Kffni/on, in treating of the liability of a carrier (5 T. 11 3'J4), makes this the criterion to determine his character ; whether, at the time when the accident happened, the goods were in the custody of the defendants as common carriers. In Garside v. The Proprietors of the Trent and Mersey Navigation Co. 4 T. K. 581, the defendants, who were common carriers, undertook to carry goods from Stourport to Manchester, and from thence to be forwarded to Stockport. The goods arrived at Manchester, and were put into the defendants' warehou.se, and burnt up before an opportunity arrived to forward them. Lord Kenyan held, the defend- ants' character of carriers ceased when the goods were put into the warehouse. This case is an authority for saying, that the responsibilities of a common carrier and forwarder of goods rest on very dif- ferent principles. In the present case the defendant performed his whole undertak- ing ; he gave the ashes in charge to an experienced and faithful boatman. It has been urged that the defendant derived a benefit from the carriage of the goods, in receiving cash from the owners of produce, and paying the boatmen in goods, and also in charging more than he actually paid. The latter suggestion is doubted in point of fact ; but admit- ting the facts to be so, these are advan- tages derived from the defendant's situa- tion as a warehouse keeper and forwarder of goods, and b\- no means implicate him as a carrier; for surely the defendant is entitled to some remuneration for the trouble in storing and forwarding goods. In atiy and every point of view, there is not the lea.^t pretext for charging the defendant with this loss as a common carrier." See also White v, Bascom, 28 Vt. 268. (/) Garside v. Trent and Mersey Nav- igation Co. 4 T. R. 581. In this case the defendants, being common carriers between Stourport and Manchester, re- ceived goods from the plaintiff at Stour- port to be carried to Manchester, and to be forwarded from the latter place to Stockport. The defendants carried the goods to Manchester, and tiiere jnit thorn in their warehouse, in which they were destroyed liy an accidental (ire before 147 141 THE LAW OF CONTRACTS. [book III. * 141 common * carrier until the next carrier receives the goods, that he has no distinct compensation as warehouseman, (m) But if the goods are housed by the carrier between the termini of his transit, they are still under his. charge as carrier. (?i) And if he pays the warehouse rent to another person, he is still liable as carrier, if his duty has not terminated, and he is bound by the contract or the usage to deliver the goods, (o) But if he is only bound to keep them safely until the consignee or owner calls for them, he is then only a warehouseman, although the goods be in his own store, (p)^ And if he undertakes to forward them beyond his own route, and for that purpose puts them into a suitable vehicle, or otherwise disposes of them in a proper way for that purpose, he is liable only for negligence, (q) And if he receives goods as warehouseman into his store on his own wharf, for the purpose of carrying them forward, he is not liable as a carrier for their loss until their transit begins, actually or constructively, because until then he does not assume the character of a car- they had an opportunity of forwarding them. The court hfld, that they were not answerable for the kjss. See also Brown V. Deuison, 2 Wend 593; Ackley v. Kel- logg, 8 Cowen, 223. (w) See Garside r. Trent and Mersev Navigation Co. 4 T. R. .581. («) Forward v. Pittard. IT E. 27. (o) Hyde v. Trent and Mersev Navi- gation Co. 5 T. R. 389. (o) Webb, in re, 8 Taunt. 443. In this case. A, B, C, and D, in a partnership as carriers, agreed with S. & Co., of Frome, to carry goods from London to Frome, where they were to he deposited in a warehouse belonging to the partnership at Frome, where A resided, without any charge for the warehouse-room, till it should be convenient for S. & Co. to take the goods home. Goods of S. & Co., carried by the partners from London to Frome, under this agreement, were de- posited in the warehouse at the latter place, and destroyed by fire. It was held, that the partners were not liable to S. & Co. for the value of the goods burnt. So in the case of Thomas v. Boston & P. R. R. Co. 10 Met, 472, it was held, that the proprietors of a railroad, who transport goods over their road, and deposit them in their warehouse without charge, until the owner or consignee has a reasonable time to take them away, are not liable, as common carriers, for the loss of the goods from the warehouse, but are liable as depositaries, only for want of ordinary care. See further as to this change in liabilitv. Shepherd v. Bristol &c. Rv. Co, L. R."3 Ex. 189; Chapman (-."Great Western Ry. 5 Q. B. D. 278; Cohn v. Michigan Central R. R. 71, 111. 96; Rice r. Boston & Worcester R. R. 98 Mass. 212; Rice v. Hart, 118 Ma5S. 201; Faulkner v. Hart, 82 N. Y. 413 ; Spears V. Spartanburg &c. R. R. 11 s. c. 158. (f/) Thus, where common carriers re- ceived goods on board their sloop, to transport from New York to Troy, where they transferred them on board of a canal-boat bound to the north, pursuant to the bailor's instructions ; receiving no reward for the transfer or further trans- portation ; and the goods were lost by the upsetting of the canal-boat, it wa.s held. that their character of common carriers ceased at Troy ; and having exercised ordinary care in seeing the goods ])laced on board a safe boat, they were not re- sponsible for the loss. Ackley v. Kellogg, 8 Cowen, 223. ^ A stipulation in a bill of lading tliat "the goods will be deposited at the expense of the consignee, and at his risk of fire, loss, or injury, in the warehouse provided for that purpose, &c,," does not exempt a carrier from liability as a warehouseman for a negligent deliverv of goods stored in a warelvouse under his control. Collins v. Burns, 63 N, Y. 1 ; Merchants, &c. Co. v. Story, 50 Md. 4. — K. 148 CH. XI.] BAILMENT. 142 rier. (r) If, however, he receives them to forward them, and delivers them to one not authorized to receive them, he is liable, (rr) * It is not necessary that the goods be housed, to affect * 142 the bailee with the liabilities of a warehouseman. It is enough if they are actually within his cliarge and custody for the purpose of being housed, (s) As to the obligation of the warehouseman to deliver the goods to the consignee, or to redeliver them to the consignor, in the case where they are claimed by another as the proper owner who forbids such delivery, there seems to be some uncertainty. (0 We take the law to be, however, that he must decide for himself which is the better right, and is exposed to loss if he decide wrongly. But if he in good faith deliver the goods to the origi- nal bailor, or his consignee, the true owner should not recover damages from him by merely proving his ownership and a notice (/•) Piatt V. Hibbard, 7 Cowen, 497. In Wbite v. Humphrey, 11 Q. B. 43, where the plaintiff deposited hops iu the defendant's wareliou.se, to be conveyed to London in the barges of the defendant (who was also a carrier), whenever the plaintiff should direct, and in the mean time to be kept by the defendant without charge for warehousing, it was held, by the judge at nisi prius, that the advantage of carrying the hops for hire might be con- sidered as payment for the warehouse- ing and that tlie defendant was not, there- fore, a gratuitous bailee, and so liable only for gross negligence ; and the Court of Queen's Bench refused to grant a new trial on the ground of misdirection. (/•;■) Jeffersonville B. 11. Co. v. White, 6 Bush, 251. (s) Thus it has been decided, that as soon as the goods arrive, and the crane of the warehouse is applied to raise them into the warehouse, the liability of the warehouseman commences ; and it is no defence that they are afterwards injured by falling into the street from the break- ing of the tackle, even if the carman who brought them Jias refused the offer of slings for further security. Thomas v. Day, 4 Esp. 262. (t) In Ogle V. Atkinson, 5 Taunt. 759, it was decided, that a warehouseman, receiving goods from a consignee, who has had actual posse.ssion of them, to be kept for bis use, may nevertheless refuse to redeliver them, if they are tlie j)roperty of another. I'ut several siilisfMpifiit cases have established that a warelioiiscniali cannot dispute tiie title of liis bailor, or of any other person whose title he has ac- knowledged, in an action brought against him by such person. See Gosling v. Bir- nie, 7'Bing. 339; Holl v. Griffin, 10 Bing. 246; Kieran v. Saudars, 6 A. & E. 515; Harman v. Anderson, 2 Camp. 243 ; Stouard v. Dunkin, id. 344 ; Burton v. Wilkinson, 18 Vt. 186. In the case, how- ever, of Cheesman n. Exall, 4 E. L. & E. 438 ; s. c. 6 Exch. 341 , where property had been delivered by the plaintiff to the defendant, for the purpose of defeating an execution against the plaintiff, it was held, that in the present action of trover the defendant might set up the title of a previous transferee of the plaintiff to defeat the plaintiff's right to recover, and the court refer to Ogle v. Atkinson as in point. The court are inclined to the o])inion that in the case of a pledge the jiledgee may set up the jus terlii unless he has made an absolute agreement to give up the property to the party pledg- ing it. See also Bates v. Stanton, 1 Duer, 79 ; Cook v. Holt, 48 N. Y. 275 ; Pitt v. Albritton, 12 Ired. L. 77. So if a ware- honseman delivers the goods intrusted to him to a wrong ])orson by mistake, or they are obtained from him by fraud, as by a forged order, he is liable to his bailor for their value. Lubbock v. Inglis, 1 Stark. 104; Willard v. Bridge, 4 Barb. 361. On the other hand, if the goods are taken from the ])ossession of the ware- houseman by the authority of the law, this constitutes a good defence for him in an action brought against him bv his bailor. Burton c. Wilkinson, 18 Vt. 186. 149 * 143 THE LAW OF CONTRACTS. [BOOK III. to the warehouseman ; aud not unless he exhibited to the ware- houseman in due season such proofs as might reasonably be required of his ownership. Aud if on such evidence * 143 * the warehouseman did deliver the goods to the person claiming to be owner, and it appeared afterwards that the claim was unfounded, the original bailor should be limited in his recovery to the strictest compensation, if the warehouseman could show that he acted on evidence which would satisfy a cautious and honest man. In practice, it is usual in such cases to demand and receive an indemnity from the party put in possession of the goods. It has been recently held, that a bailee who seeks to excuse his non-delivery of goods to one party when they are claimed by another, makes himself a party to the controversy, and his excuse is or is not valid according to its result ; but that he may remain neutral, and permit a claimant to take them on his own responsi- bility ; (tt) but this rule if it be one, must be subject to much qualification. If sued by the shipper, it seems that he may set up in defence his delivery of the goods to the rightful owner, (tu) A warehouseman has a lien on the goods which he stores, for his charges for those goods ; and he may redeliver a part of those goods, and retain his lien on the residue, for the whole of his charges on all the goods ; provided they were delivered to him as one bailment. But he has no general lien on the goods for all his charges against the bailor for storage of other goods, (f)^ Wharfingers. This kind of bailment is quite similar to that first spoken of, and the rules of law applicable to it are much the same, {wy {tt) Rogers v. Weir, 34 N. Y. 463. is subject to charges for storage, he will {tu) Bliven v. Hudson R. R. R. Co. 36 be liable for such charges : and the ware- N. Y. 403. housemen will have a lieu for such {v) Schmidt v. Blood, 9 Wend. 268. charges; an/ley, J., in Thompson v. Ma.xwell v. Mc-llvoy, 2 Bibb, 211 ; Christy Lacy, 3 B. & Aid. 283, 286. V. Smith, 23 Vt. 663. So also Bolan r (h) Bac. Abr. tit. Inns and Innkeepers Williamson, 2 Bay 551 ; s. c. 1 Brevard, (B). "A sign is not essential to an inn, 181; Ford r. Parker, 4 Ohio St. 576; but is an evidence of it." Per //o/f, C. J., Fitzgerald v. Burrill, 106 Mass. 446. in Parker v. Flint, 12 Mod. 2.54. (e) Schroyer v. Lynch, 8 Watts, 453 ; (/) I)(je v. Laming, 4 Camp. 73. Wiggins V. Hathaway, 6 Barb. 632; ( /) This was directly lield hy Erie, J. Christv V. Smith, 23 Vt. 663. And in in Dansev v. Kichardson, 20 Law Times, Bishop r. Williamson, 2 Fairf. 495, this 213, 25 E. L. & E. 76. 3 E. & B. 144. See rule was applied to a case where a deputy also Queen v. Rymer, 2 (.1. B I). 136,139. postmaster had em))loyed an assistant (/•) So one who entertains strangers without having an oatli administered to occasionally, although he receives com- him, as was refiuired by the statute of pensation for it, is not an innkeeper, the United States. Accordingly, where State r. Mathews, 2 Dev. & B. 424 ; Lyon such assistant wrongfully refuseil to de- i\ Smith. 1 Morris (la ), 184. So it has liver a letter to the plaintiff, his em- been /le/d, that a housekeeper at Tun- ployer was held liable in damages. See bridge or Epsom, or other watering-place, also Bolan v. Williamson, 1 Brevard, 181. who lets lodgings, and furnishes meat ^ The owner of an apartment house though he furnishes heat, water, and attend- ance is not an innkeeper, Davis v. Gay, 141 Mass. 531. Nor is a sleeping-car company either an innkeeper or common carrier, Pullman Palace Car Co. v. Smith, 73 111. 360 ; Woodruff &c. Co. v. Diehl, 84 Ind. 474, 481 ; Pullman Palace Car Co. v. Gaylord, (Super. Ct. Ky.), 30 Alb. L. J. 424; s. c 23 Am. L. Reg. n. s. 788; Lewis o" New York Central Sleeping Car Co. 143 Mass. 267; Root v. New York Central Sleeping Car Co. 28 Mo. App. 199 ; Pullman Palace Car Co. v. Pollock, 69 Tex. 120 : Pullman Palace Car Co. i\ Matthews, 74 Tex. 654. Contra, Pullman Palace Car Co. v. Lowe, 28 Xeb. 239. Nor is a Steamship Company an innkeeper. Steamboat Crystal Palace V. Vanderpool, 16 B. Mon. 302: Clark r. Burns, 118 Mass. 275. But see contra, Crozier v. Boston &c. Steamboat Co. 43 How. Pr. 466. 152 CH. XL] BAILMENT. 146 * Public policy imposes upon an innkeeper a severe liabil- *146 ity. The later, and, on the whole, prevailing authorities, make him an insurer of the property committed to his care, against everything but the act of God, or the public enemy, or the neglect or fraud of the owner of the property. (/) There seems to be some disposition, however, to regard this rule of law as too severe, and as needing modification. In several well-con- sidered cases a different rule was adopted. (//) In a recent case in and drink, and provides stable-room for the comjiauy who resort there for health or pleasure, is not an innkeeper. Park- house V. Forster, 5 Mod. 427 ; s. c. noin. Parkhurst v. Foster, Carth. 417 ; s. c. 1 Salk. 387. And Lord Holt said, the case was so plain that there was no occasion for giving re;isons. See also Bonner v . Welborn, 7 Ga. 296. But in Thompson V. Lacy, 3 B. & Aid. 283, it was held, that a house of public entertainment in Lou- don, where beds, provisions, &c., were furnished for all persous paying for the same, but which was merely called a tavern and coffee-house, and was not fre- quented by stage-coaches and wagons from the country, and which had no sta- bles belonging to it, was to be considered as an inn, and the owner was subject to the liabilities of innkeepers, and had a lien on the goods of his guests for the payment of his bill, and that too even where the guest did not appear to have been a traveller, but one who had previ- ously resided in furnished lodgings in London. In Wintermute v. Clarke, 5 Sandf. 247, the court say, that in order to charge a party as an innkeeper it is not necessary to prove that it was only for the reception of travellers that his house was kept open, it being sufficient to prove tliat all who came were re- ceived as guests without any previous agreement as to tlie time or terms of their stay. A public house of entertain- ment for all who choose to visit it is the true definition of an inn. See Krohn v. Sweeaev, 2 Dalv, 200 ; Walling v. Potter, 35 Conn. 18.3, 18.5; Hancock r. Rand, 94 X. Y. 1 ; Southwood v. Myers, 3 Bush, 681, 684 ; Pinkerton v. \V(Jodward, 33 Cal. 557 ; Fav v. Pacific Improvement Co. 93 Cal. 253. (/) Mason v. Thompson, 9 Pick. 280, per iVildf, J. ; Riclimond v. Smith, 8 B. & C. 9, per Buf/lci/, J. ; Piper v. Manny, 21 Wend. 282, per Nelson, C. J. ; (irin- nell V. Cor)k, 3 Hill (N. Y.), 485; per Jironson, .1. ; .Manning v. Wells, 9 Humph. 746 ; Thickstun r. Howard, 8 Blackf. 535 ; Mateer v. Brown, 1 Cal. 221 ; Hulett ;;. Swift, 42 Barb. 230, 33 N. Y. 571 , Fay V. Pacific Improvement Co. 93 Cal. 253; Sibley v. Aldrich, 33 N. H. 553; Pinkerton v. Woodward, 33 Cal. 657 ; Walsh V. Porterfield, 87 Pa. 376 ; Shultz (•. Wall, 134 Pa. 262 ; Burrows l: Trie- ber, 21 Md. 320; Shaw c. Berry, 31 Me. 478. This last was an action ou the case against the defendant, who was an innkeeper, for an injury to the plain- tiff's horse, while at the defendant's stable. The horse was placed at tJie stable in the evening, and the next morning one of his hind legs was found to have been broken above the gambrel joint. The evidence tended to show that he was treated with care and faithfulness ; that he was placed in a safe and suitable stall, with sufficient and suitable bedding ; and that the injury liappened without the fault of any one. Tlie learned judge, before whom the cau.se was tried, instructed the jury, that the rule of law applicable to common carriers was not applicable to innholders ; that the law, in case of in- jury to goods or property while in the custody of the innkeeper, presumed it to have happened through his negligence or fault, and would hold him responsible for it, unless he could prove that he was guilty of no fault ; and that if the de- fendant had proved that he was not iu fault, the action could not be maintained. The case was carried up to the Supreme Court on exception to these instruc- tions, and that court, after an elaborate examination of the autliorities, held the instructions to be incorrect ; and declared the rule of law to be that an innkeeper is bound to keep the goods and chattels of his guests so tliat they shall be actually safe; inevitable accidents, the acts of pub- lic enemies, the owners of the goods and their servants, excepted ; and tliat ])roof that there was no negligence in the inn- keeper or his servants, was not sufficient for his immunity. (//) Dawson v. Chamney, 5 Q. B. 164, and Merritt ;,'. Claghorn, 23 Vt. 177. Dawson r. Chamney was an action on the case to recover damages for an in- jury to the plaintiff's horse. It appeared that the defendant was an innkeeper ; that 153 146 THE LAW OF CONTRACTS. [book III. New York where an innkeeper was held responsbile for the loss of the goods of his guest by fire of which the cause was unknown, the plaintiff gave the horse in charge to the defendant's hostler, who placed him in a stall where tliere was another horse ; and that the injury was done by the other horse kicking the horse of the plaintiff. The defendant having called witnesses to show that proper care had been taken of the horse, the learned jud<;e directed the jury to find for the plaintiff, if they were of opinion that the defendant, by himself or servants, had been guilty of direct injur}-, or of negligence, but o'^herwise for the defendant. The jury found a verdict for the defendaut, and the Court of Queen's Bencli held the direction proper. This decision was considered in the case of Mateer v. Brown, 1 Cal. 221. The court adopt the dictum of Mr. Justice Bai/lei/ in Kichmoud v. Smith, 8 B. & C. 9, that the innkeeper very closely resembles a common carrier, and is liable for any loss uot occasioned by the act of God or the king's enemies, e.Kcept where the guest chooses to liave the goods under his own care ; and after a lengthy and able consideration of the subject they say, that although that dictum of Mr. Justice Bayla/ has been overturned in England by the decision of Dawson ?\ Chamney, they think the dictum right and the decision wrong. The case of Merritt v. C'laghorn was al.«o an action on the case to recover the value of two horses, a double harness, two horse-blankets and two halters. On the trial, it was conceded that the defend- ant was the keeper of an inn, and that the agent of the plaintiff was received as a guest at the defendant's inn, with the property in question, belonging to the plaintiff ; and that the horses and other property were, as is usual in such ca.ses, put into the barn of the defendant, which was a ])art of the premises, and, at the Usual time for closing the stable, tlie barn was locked by the defendant ; and that about daylight the next morning, and while the property was thus in the custody of the defendant, as an innkeeper, the barn was discovered to be on fire, sup- posed to be the work of an incendiary, and tlie horses and other property were burued and destroyed ; and that there was no negligence, in point of fact, in the de- fendant or his servants, in the ca.se of the barn and of the property in question. < )n these facts, the court hfld tiiat the plaintiff was not entitled to recover. And Red- Jield, J., in giving the opinion of the court, said : " The case finds that the plaintiff's loss was without auv negligence, 154 in point of fact, in the defendant or his servants. From this we are to under- stand that no degree of diligence on his part could have prevented the loss. If, then, the defendant is liable, it must be for a loss happening by a cause beyond his control. In saying this we have refer- ence only to the highest degree of what would be esteemed reasonable diligence, under the circumstances known to exist, before the fire occurred. We are aware that it would doubtless have been possible, by human means, to have so vigilantly guarded those buildings as probably to have prevented the fire. But such ex- treme caution in remote countrv towns is not expected, and if practised, as a general thing, must very considerablv increase charges upon guests, which they would not wish to incur, ordinarily, for the remote and possible advantage which might accrue to them. The question, then, is whether the defendaut is liable ? Do the authorities justify any such con- clusion ? For it is a question of author- ity merely. We know that many eminent judges and writers upon the law have considered that innkeepers are liable to the same extent as common carriers. It may be true, that the cases are much alike in principle. For one, I should not be inclined to question tliat. But if the case were new, it is certainly not free from question how far any court would feel justified in holding any bailee liable for a loss like the present. But in re- gard to common carriers, the law is per- fectly well settled, and they contract with the full knowledge of the extent of their liability, and demand not only pay for the freight, but a premium for the in- surance, and may reinsure if they choose. And the fact that carriers are thus liable no doubt often induces the owners to omit insurance. But, unless the law has al- ready affixed the same degree of extreme liaiiility to the case of innkeepers, we know of no grounds of policy merely which would justify a court in so holding." After a careful examination of the au- thorities, the learned judge concludes -. '■ It is certain no well-considered case has held the innkeeper liable in circum- stances like the present. And no prin- ciple of reason, or policy, or justice, requires, we think, any such result, and the English law is certainly settled other- wise." See also Mc Daniels v. Robin.son, 26 Vt. 316; Metcalf v. Hess, 14 III. 129; Baker v. Dessauer, 49 Ind. 28 ; Cutler v. Bouney, 30 Mich. 259 ; Howe Machine CH. XI.] BAILMENT. * 147 the guest not having been negligent, two of the judges dissented from this opin'on. (Z//i) Where a woman leaving an inn where she had been a guest, left a trunk, saying she would send for it in ten minutes, and some days after sent for it, and the trunk was lost, the innkeeper was held liable, on the ground that he was liable for a reasonable time after the guest had left his house. {In) ^ He would then be liable * for a loss * 147 occasioned by his own servants, by other guests, by rob- bery or burglary from without the house, or by rioters or mobs. Nor will it excuse him if he were sick, insane, or absent, at the time ; for he is bound to have competent servants and agents, {m) But it is a good defence that the loss was caused by the ser- vant of the owner, {ji) or by one who came with him as his companion, (o) or by the negligence of the owner ; (p) or that Co. V. Pease, 49 Vt. 477 ; Howth v. Frank- night, as he had been accustomed to do ; it lin, 20 Tex. 748. was the custom of travellers to leave their (Im) Hulett V. Swift, 33 N. Y. 571. driving boxes in the commercial room (/") Adams v. Clem, 41 Ga. 65. during the night. The box was so inse- (m) Cross v. Andrews, Cro. E. 622; curely fastened that it might be opened Borradaile v. Hunter, 5 Man. & G. 630. without a key, by pushing back the lock. {n) Calye's case, 8 Rep. 32. The learned judge, in summing up to the (o) Id. jury, said, that by the custom of England (p) Burgess v. Clements, 4 M. & Sel. an innkeeper was bound to keep the goods 306; Elcox v. Hill, 98 U. S. 218; Armi- of his guests safely; but that a guest stead V. Wilde, 6 E. L. & E. 349 ; s. c. 17 might, by gross negligence, relieve the Q. B. 261. This last was an action on the innkeeper from his liability ; and that if case for the loss of money, wliich the they tliought that a prudent man would plaintiff brought with him to the defend- have taken the box with him to his bed- ant's inn. On the trial, it appeared that room, or given it into the express custody the plaintiff was a commercial traveller, of the defendant, tliey might find a ver- who had fre([uented the defendant's inn diet for the defendant ; and left it as a for twenty years. On the evening of the question for them whether the plaintiff night in whicli tlie money was stolen from was guilty of gross negligence in the the plaintiff's driving bo.x, he had opened traveller's room, or whether they were the box and counted over the bank-notes satisfied on the evidence that the plaintiff in the presence of many persons in the had acted with ordinary caution. The commercial room, as he had also done on jury found a verdict for the defendant, several days before, and after replacing And a rule having been obtained for a them in the box he left it in that room all new trial, on the ground of misdirection ^ When a guest departs and leaves his baggage at an inn till sent for, the relation of gue.st and innkeeper is ordinarily terminated thereby, the latter becoming merely a gratuitous bailee. Glenn v. Jackson, 93 Ala. 342 ; Wear ii. Gleason, 52 Ark. 364; . Miller v. l^eeples, 60 Miss. 819 ; Whittemore v. Haroldson, 2 Lea, 312 ; Lawrence v. Howard, 1 Utah, 142. But in Adams v. Clem, 41 Ga. 65, and Murray v. Marshall, 9 Col. 482, it was held that " an innkeeper with whom the baggage of his guest is left with his consent, tliough he gets no additional compensation for taking care of it, is still liable for it as innkeeper, for a reasonalile time to be estimated according to the circumstances of the case." In Adams v. Clem, four days was held a reasonable time, and in Murray r. Marshall, two days was held reasonable. The innkeeper is not liable, as such, for losses happening before the relation of gnest and innkeeper begins. Thus where the plaintiff, expecting to stay at the defendant's liotel.gave his luggage to a porter of the hotel, but changing his mind went out telling the porter to lock up his luggage, the defendant was held not liable for a part of the luggage which was lost. Strauss f;. The County Hotel, &c. Co. 12 Q. B. D. 27. See also Stewart v. Head, 70 Ga. 449 ; Toub v. Schn'iidt, 15 N. Y. Supp. 616. 155 149 THE LAW OP CONTRACTS. [book III. 148 149 * the owner retained personally and exclusively the cus- tody of his goods, (q) It is not enough for this, however, that he exercised some choice as to the room where they should be * placed, (r) or that the key of the room was de- livered to him. (s) It was long ago held, that the owner Lord Campbell, C. J., said : " I am of opinion that the rule should be dis- charged. If the judge had intimated that it was the duty of the plaintiff to with- draw the box from the commercial room, and carry it with him iuto his bed-chamber, and that, not having done so, he had lost his claim upon the defendant, that would have been a misdirection. But tnere is no misdirection in what he has reported to us. It must be taken that he left the question to the jury under all the circum- Ktances of the case ; and it is not possible to say, as a matter of law, that a traveller might not be guilty of negligence, under some circumstances, in leaving a box con- taining money in the commercial room ; and in this case I think that there was strong evidence from which the jury were justified in finding that the plaintiff was guilty of gross negligence. Indeed, it is tjuestionable whether the direction was not too favorable for the plaintiff, be- cause it is doubtful whether, in order to relieve the iuukeeper from his liability, there must be crassa negligentia in the guest." (q) This was decided in the case of Faruworth v. Packwood, I Stark. 249. It appeared in this case that Kirtou came to the house of the defendant, an inn- keeper, and in the course of three or four days afterwards applied to the defendant for a private room, for the purpose of depositing goods there, and exposing them for sale ; and the defendant having shown him a small room, which he ap- proved of, Kirton the next day took pos- session of it, and the key was delivered to him, and was kept by him exclusively for several days ; but, upon the defend- ant's wife refjuesting to place some par- •cels in the same room, Kirton permitted her to use the key, and he had not the exclusive use of it, and other parcels were deposited in the same room. Kirton boarded and lodged in the house for al- most a fortnight, and from time to time introduced his customers into the room. A short time before he left the house he discovered that a package was missing, which made the subject of the present demand. Le Blanc, ,J., in summing up to the jury, said: "If a guest take upon himself the exclusive charge of the goods which he brings into the house of an inn- 156 keeper, he cannot afterwards charge the innkeeper with the loss. The only ques- tion in this case is, whether Kirton did not take upon himself the exclusive charge of his goods, to the exclusion of every other person ? A landlord is not bound to furnish a shop to every guest who comes into his house ; and if a guest takes exclusive possession of a room, which he uses as a warehouse or shop, he discharges the landlord from his common- law liability. The question, therefore, for your consideration is, whether, when the goods were lost, they were exclusively in Kirton's possession ? It is admitted that during part of the time Kirton kept the key ; if afterw^ards the defendant took the key from him, the goods then ceased to be under his exclusive control, and the defendant became liable for their safe custody. The only question is whether, at the time of the loss, the goods were in the exclusive possession of Kirton f " The jury found a verdict for the defend- ant. See also Burgess v. Clements. 4 M. & Sel. 306 ; Vance v. Throckmorton, 5 Bush, 41. The same rule holds, where the guest, instead of reposing himself upon the protection of the innkeeper, in- trusts his property to some one else in the house. .Sneider v. Geiss, 1 Yeates, 34. (/■) Thus, where a traveller went into an inn, and desired to have his luggage taken into the commercial room, to wliicli he resorted, from whence it was stolen, the court held, that the innkeeper was responsible, although he proved that ac- cording to the usual practice of his house, the luggage would have been deposited in the guest's bedroom, and not in the commerical room, if no order had been given respecting it. Kichmond v. Smith, 8 B. & C. 9. See further Epps v. Hinds, 27 Miss. 6.57. (s) Anonymous, Moore, 78, pi. 207 : Calye's case, 8 Rep. 32. In the case of Burgess r. Clements, 4 M. & Sel. 306, I.,ord Ellenborough says : " I agree that if an innkeeper gives the key of the chamber to his guest, this will not dispense with his own care, or discharge him from his general responsibility as innkeeper. But if there be evidence that the guest ac- cepted the key, and took on himself the care of his goods, surely it is for the jury to determine whether this evidence of his CH. XI.] BAILMENT. * 149 may still recover, even if he does not use the key, but leaves the door unlocked, (t) ^ But an innkeeper may require of his guest to place his goods in a particular place, and under lock and key, or he will not be answerable. And if these precautions are reason- able, and the guest neglects them, and exposes the goods to a greater hazard, the innkeeper is exonerated. (%) It is common for large hotels or inns to have safes for holding valuable property and to give notice to guests that they will not be responsible for such property, as money, jewels, or ornaments, unless delivered to them to be put into the safe. Such notice would be reasonable, and it is sustained by a statute in New York, passed in 1855 ; and would undoubtedly be held generally to limit the responsibility of the innkeeper, {mc) ^ So it has been held under a similar statute in Wisconsin, and the rule applied to a watch and chain, although the guest needs the constant use of such an article, and usually keeps it with him. (^tv) Some receivins: the key proves that he did it (») Sanders v. Spencer, Dyer, 266 b; animo custocUendi, and with a purpose of Calye's case, 8 Eep. 32 ; Purvis r. Cole- exempting the innkeeper, or whether he man, 21 N. Y. Ill ; Fuller v. Coats, 18 took it merely because the landlord forced Ohio St. 343. it on him, or for the sake of securing (»«) For cases under this statute on greater privacy, in order to prevent per- usage, see Bendetson v. French, 44 Barb, sous from intruding tliemselves into his 31. and Piukerton v. Woodward, 33 Cal. room." 557. (/) Calye's case, 8 Rep. 32. (wi-) Stewart v. Parsons, 24 Wis. 241. ^ It is a question of fact for the jury, whether leaving a door unlocked, in connec- tion with the otlier circumstances of the case, shows negligence on the part of the guest contributing to the loss. " By omitting to lock his door a jury might well think that the guest chose to take the risk of robbery upon himself, and that he ought to have taken more care. All these are questions of degree when forming a judgment on the facts." Oppenheim v. White Lion Hotel Co. L R. 6 C. P. '515, 520, per ll7//es, J. Herbert v. Markwell, 45 L. T. (x. s.) 649 (1882) ; Lanier v. Youngblood, "3 Ala. 587; Murchison v. Sergent, 69 Ga. 206; cf. Swann v. Smith, 14 Daly, 114. So leaving a window unfastened. Bohler v. Owens, 60 Ga. 185. So whether intoxi- cation of the guest contributed to the loss. Walsh v. Poiterfield, 87 Pa. 376. But in Rubenstein v. Cruikshanks, 54 Mich. 201, 205, it is said that if the guest became intoxicated at the bar of the landlord, "if anything . . . the landlord should be held to stricter liability on that account." Negligence is not to be imputed to a guest because he consented to share his room with another guest, who stole his property. Olson y. Crossman, 31 Minn. 222. Nor because he failed to notify the landlord that the door of his room had no lock. Lanier v. Youngblood, 73 Ala. .587. 2 Apart from statute, an innkeeper's liability is not affected by such a notice unless it be shown that the guest knew of it or had his attention called to it. Morgan i-. Ravey, 6 H. & X. 265 ; Pinkerton v. Woodward, 33 Cal. 557 ; Bodwell v. Bragg, 29 la. 232; Shultz v. Wall, 134 Pa. 262. But, generally, by statute an innkeeper by post- ing notices as required may affect his guests with constructive notice of their contents. See e. g. Lanier v. Youngblood, 73 Ala. 587 ; Shultz v. Wall, suprn. In some juris- dictions such statutes are construed as providing the only way in which the guest can be charged witli notice. Lanier v. Youngblood, supra ; Olson v. Crossman. 31 Minn. 222 ; Batterson r. Vogel, 8 Mo. App. 24. In others, per.sonal notice is still sufficient. Purvis c. Coleman, 21 X. Y. Ill ; Shultz v. Wall, supra. The statutory requirements must be strictly complied with to afford the innkeeper protection. Spice v. Bacon, 2 Ex. D. 463 ; Beale v. Posey, 72 Ala. 323. 157 * 150 THE LAW OF CONTRACTS. [BOOK III. donht may be thrown on this doctrine by a recent case in New York.(?t.r) A distinction has been taken, and appears to rest on good rea- son, between those effects of a traveller not immediately requisite to his comfort, and those essential to his personal convenience, and which it is necessary that he should have constantly about him ; so that, though personally notified to deposit the latter with the innkeeper for safety, if he fail to comply, the innkeeper will still be responsible, (i') If the goods are once within the custody of the innkeeper, and while there, are lost, the presumption of law is, that they are lost through his negligence, (if) No especial delivery or direction of the goods to the innkeeper is necessary to charge him ; for it is enough if they are fairly, according to common practice within his custody, (x) * 150 * Thus, if he engages to take passengers " free " from a station, and a passenger gets into a hack which, by agree- ment with the owners, may be used by him for that purpose, and loses a trunk in that hack, the innkeeper is liable, (y) If a ser- vant of the innkeeper take the luggage of the passenger to carry it to the cars, the innkeeper continues responsible for it, until delivery to the ca,rs. (yy) It is said, that if the innkeeper refuses to receive the party as a guest, he is not liable for any loss of his goods. But he cannot so refuse, unless his house is full, and he is actually unable to receive him. (5;) And if on false pretences he refuses, he is liable to an action, (a) And it is said that he may even be indicted therefor. (6) {ux) Krohn v. Sweeney, 2 Daly, 200 ; and money of their guests, is founded on Ramaley ;•. Leland, 43 N.Y. 539 ; Maltby the great "principle of puhlic utility, and is V. Chapman, 25 Md. 310. not restricted to any particular or" limited {v) Profilet V. Hall, 16 La. An. 524. amount. . . . The principle for which See Noble ?•. Milliken, 74 Me. 225 ; 77 Me. the defendants contend, that innkeepers 359 ; Murchison v. Sergent, 69 Ga. 206 ; are liable for such sums onlv as are neces- Fay V Pacific Improvement Co. 93 Cal. 253. sary and designed fur the ordinary travel- (w) See the cases in the former notes, ling expenses of the guest, is unsupported and Kisten v. Hildebrand, 9 B. Hon. 72; bv'authoritv,and wholly inconsistent with Sibley v. .\ldrich, 33 N. H. 553. the principle upon which the liability of (r) McDonald v. Edgerton, 5 Barb, an innkeeper rests." 560 ; Bennett v. Mellor, 5 T. R. 273. (y) Dickinson v. Winchester, 4 Cush. Nor is it material whether the property 114. See also Coskerv r. Nagle, 83 Ga. 696. intru.sted to the innkeeper consists of (yy) Sasseen ?;. Clark, 37 Ga. 242. In goods or of money. Kent v. Shuckard, this" case the liability of an innkeeper is 2 B. & Ad. 803. Nor is it limited to any much considered. particular amount. Berkshire Woollen (s) Hawthorn v. Hammond, 1 Car. & Co. r. Proetor,7 Cush. 417. See the facts K. 404; Kirkman r. Shawcross. 6 T. K. of this case stated, post, p. * 152, note ( /). 14 ; Willis v. McMahon, 89 Cal. 156. Fletcher, J., in reference to the point, {a) White's case, Dver, 158 b, 1 Roll. says: "The responsibility of innkeepers Abr. 3, (F) pi. 1. for the safety of the goods and chattels (6) Rex v. Ivens, 7 C & P. 213 158 CH. XI.] BAILMENT. * 151 An innkeeper may refuse to receive a disorderly guest, or re- quire him to leave his house, (c) He is not bound to examine into the reasonableness of the guest's requirements, if the guest be possessed of his reason, and is not a minor. (cZ) And while travellers are entitled to proper accommodations, they have no right to select a particular apartment, or use it for purposes other than those for which it is designed, (e) But an innkeeper has no right to prevent the driver of a line that is a rival to one which favors the innkeeper, from entering his house for lawful and reasonable purposes. (/) Nothing need be, nor usually is, paid for the goods sepa- rately, (g) The compensation paid by the owner for his enter- tainment covers the care of the property. The custody of the goods is accessory to the principal contract. It is sometimes difficult to know who is the guest of an innkeeper, (h) ^ In this country it is very common for per- sons to * become boarders at an inn ; and then they cease to * 151 be guests in such a sense as to hold the innkeeper to his peculiar liability, and, on the other hand, give him his lien, {i) (c) Howell V. Jackson, 6 C. & P. 723 ; King's Bench sustained the verdict, de- Rex V. Ivens, 7 C. & P. 213 ; Queen v. ciding that the plaintiff's servant was to Rymer, 2 Q. B. D. 136; State v. Steele, be deemed the guest of the defendant. 106 N. C. 766. See also McDonald v. Edgertou, 5 Barb, (rf) Proctor u. Nicholson, 7 C. & P. 67. 560; Washburn v. Jones, 14 Barb. 193. (e) Fell V. Knight, 8 M. & W. 269. Nor is it necessary that the owner of the (/) Markhara v. Brown, 8 N. H. 523. goods be himself a guest, in order to en- ig) Lane w. Cotton, 12 Mod. 472,487. title him to an action against an inn- (rt) Purchasing liquor at an inn has keeper. If his servant or friend to whom been held sufficient to constitute one a he has intrusted the possession of the guest. Bennet v. Mellor, 5 T. R. 273. goods is a guest, it is sufficient. This is In this case the plaintiff's servant had held in the following cases : Mason t'. taken some goods to market at Man- Thompson, 9 Pick. 280 ; Towson v. Havre Chester, and not being able to dispose of de Grace Bank, 6 Har. & J. 47 ; Berkshire them, went with them to the defendant's Woollen Co. v. Proctor, 7 Cush. 417. inn, and asked the defendant's wife if he (/) Manning v. Wells, 9 Humph. 746; could leave the goods there till the fol- Ewart v. Stark, 8 Rich. L. 423 ; Hursh v. lowing week, and she said she could not Byers, 29 Mo. 469. The liability of tell, for they were very full of parcels, boarding-house keepers for the goods of The plaintiff's servant then sat down in their guests was much discussed in the the inn, had some liquor, and put the case of Dansey v. Richardson, 25 E. L. & goods on the floor immediately behind E. 76 ; s. c. 3'E. & B. 144. The declara- him, and when he got up, after sitting tion stated that the plaintiff had become there a little while, the goods were miss- a guest in the boarding-house of the de- ing. There was a verdict for the plaintiff fendaut upon the terms, among others, for the value of the goods ; and, on a that the defendant would take due and motion for a new crial, the Court of reasonable care of the goods of the plain- 1 An innkeeper who receives property otherwise than as an innkeeper, is liable as an orlinary b.ailee, — as a^rratuitous bailee if he entertains a person and takes charge of his property without piy ; or retains the baggage of a departing guest as an accom- modation; see ante. p. * 146, — as a bailee for hire if he receives pav, Healev v. Grav, 6^ Me. +80 ; .Mowers r. Fethers, 61 N. V. 34. See Medavvar c. Grand Hotel" Co. (1891) 2 Q. B II 159 * 152 THE LAW OP CONTRACTS. [book III. We take the distinction between the guest and the boarder to be this. The guest comes without any bargain for time, remains without one, and may go when he pleases, paying only for the actual entertainment which he receives ; (m) and it is not enough to make a boarder, and not a guest, that he has stayed a long time in the inn in this way. This we hold to be the gen- *152 eral rule; but * there may be some difficulty in the appli- cation of it; for, on the one hand, the special contract between the boarder and the master of the house may be express or implied, and a length of residence, upon certain terms, might certainly be one circumstance, which, with others, might lead to the inference of such a contract. On the other hand, if a traveller on a journey stops at an inn for three days, and makes a bargain for that time, it would be difficult to say that he thereby ceased to be a guest, and that the innkeeper was exonerated from liability as such, (y) So if a company gave a ball at an inn, the tiff while they were in the house of the defendant, for hire and reward, and it then became the duty of the defendant, by herself and servants, to take such care of the plaintiff's goods while a guest in the defendant's house. Breach of the al- leged duty, and a loss of the plaintiff's goods, by the neglect of the defendant and her servants. On the trial it ap- peared that the plaintiff had been re- ceived as a guest in the defendant's boarding-house, at a weekly payment, upon the terms of being provided with board and lodging and attendance. The plaintiff, being about to leave the house, sent one of the defendant's servants to purchase some biscuits, and he left the front door ajar, and while he was absent on the errand a thief entered the house and stole a box of the plaintiff's from the hall. The learned .judge directed the jury that the defendant was not bound to take more care of the house and the things in it than a prudent owner would take, and that she was not liable if there were no negligence on her part in hiring and keeping the servant ; and he left it to the jury to say whether, supposing the loss to have been occasioned by the neg- ligence of the servant in leaving the door ajar, there was any negligence on the part of the defendant in hiring or keeping the servant. Held by the court that at least it was the duty 'of the defendant to take such care of' her house and the things of her gue.) Amies v. Stevens, 1 Stra. 128; Lowe v. Moss, 12 111. 477. And where Williams v. Branson, 1 Murphey, 417; damage was done to a cargo by water Williams v. Grant, 1 Conn. 487 ; Camp- escaping through the pipe of a steam- bell V. Morse, Harp. L. 468 ; Clark v. boiler, in consequence of the pipe having Barnwell, 12 How. 272; New Brunswick been cracked by fi'ost; it was held, that S. Co. V. Tiers, 4 Zab. 697. this was not an act of God, but negli- ip) Forward v. Pittard, 1 T. R. 27; gence in the captain, in filling the boiler Thorogood v. Marsh, Gow, 105; Hale iJ. before tlie time for heating it, although N. J. Steam Navigation Co. 15 Conn, it was the practice to fill overnight when 539, 545; Parker v. Flagg, 26 Me. 181 ; the vessel started in the morning. And Parsons v. Monteath, 13 Barb. 353; ^es^, C. J, said : " No one can doubt that Chevaillier v. Strahani, 2 Tex. 115; Mil- this loss was occasioned by negligence, ler V. Steam Navigation Co. 10 N. Y. It is well known that frost will rend (6 Seld.) 431; Merchants', &c. Co. v. iron; and if so the master of a vessel Smith, 76 111. 542 ; Merchants', &c. Co. i\ cannot be justified in keeping water Theilbar, 86 111. 71 ; Empire Transporta- within his boiler in the middle of winter, tion Co. V. Wamsutta Oil Co. 63 Pa. 14. when frost may be expected. The jury (q) Gilmore v. Carman, 1 Sm. & M. found that this was negligence, and I 279. agree in their verdict." Siordet r. Hall, 4 (?) Parsons v. Hardy, 14 Wend. 215. Bing. 607. But the carrier is nevertheless bound to ()t) Bliven r. Hudson River R. R. Co. exercise ordinary forecast in anticipating 36 N. Y. 403 ; Ohio, 6l:c. R. R. Co. v. Yohe, the obstruction; must use the proper 51 Ind. 181 ; French i-. Star Union Trans- means to overcome it; and exercise due portation Co. 134 Mass. 288; Pingree v. diligence to accomplish the transporta- Detroit, &c. R. R. Co. 66 Mich. 143 ; Mc- tion he has undertaken, as soon as the Alister v. Chicago, &c. R. R. Co. 74 Mo. obstruction ceases to operate, and in the 351 ; Jewett v. Oleson, 18 Ore. 419 ; Fur- mean time must not be guilty of negli- man v. Chicago, &c. Ry. Co. 37 la. 42 ; 62 gence in the care of the property. Bow- la. 395 ; 68 la. 219 ; 81* la. 540. man v. Teall, 23 Wend. 306. See also ^ A carrier is not liable for destruction by an unusual and sudden flood which could not have been foreseen or guarded against. Strouss r. Wabash, &c. Rv. Co. 17 Fed. Rep. 209; Norris v. Savannah, &c. Ry. Co. 23 Fla. 182 ; Nashville, &c. R. R. Co. v. David, 6 Heisk. 261 ; Nashville, &c. R. R. Co. v. King, 6 Heisk. 269. Or bv an earth- quake. Slater v. South Carolina Ry. Co. 29 S. C. 96. Or bv a heavy snow storm. Chapin r. Chicago, &c. Ry. Co. 79 la. 582 ; Pruitt v. Hannibal, &c. R. R. Co. 62 Mo. 527 ; Black i-. Chicago, &c. R. R. Co. 30 Neb. 197 ; Feinberg v. Delaware, &c. R. R. Co. 52 N. .1. L. 451, 454. Or by an unusually severe gale. Blythe v. Denver, &c. Ry. Co. 15 Col. 333. But the destruction of a v'essel bya storm,' which would not have des- troyed a seaworthy vessel, does not excuse the owner from his liabilitv as a common carrier. Packard v. Taylor, 35 Ark. 402. Nor will destruction bv a landslide excuse if caused by ordinary rain, as it should have been guarded against. Gleeson v. Vir- ginia Midland R. R. Co. 140 U. S. 435. When a loss takes place the burden is on the earner to show that it was caused bv act of God. Davis v. Wabash, &c. Ry. Co. 89 Mo. 340; Wallingford v. Columbia, &c. R. R. Co. 26 S. C. 258. But if bv' contract the carrier is excused from all losses except such as are caused bv its own negligence, the burden is on the owner of tlie goods to prove the carrier's negligence. Witting v. St. Loui.s, &c. Rv. Co. 101 Mo. 631. 170 CH. XI.] BAILMENT. * 162 * If the goods have been injured by such an act of God, * 162 the carrier is still bound to take all reasonable care of them, to preserve them from further injury ; but is not bound to repair them or have them repaired ; (s) and if practicable he should unpack the goods and dry them ; (t) and for this purpose he may open barrels and boxes ; (u) but he is not bound to delay his voyage or journey for that purpose. («;) The carrier is not liable for any loss from natural decay of perishable goods, such as fruit or the like ; or the fermentation of liquors, or their evaporation or leakage, (w) And it has been held, that a carrier of animals is not liable for injury to them, caused by the peculiar risks arising out of their own nature, to which they are subject. He would not be liable for an accident arising from the animal's own viciousness, or restiveness, or of that of other animals transported with it. ^ In such cases the cause of the loss is a question to be determined by the jury, (x) So far as losses of this kind are caused by the operation of natural laws, they come within the exception of the " act of God. " But the carrier is nevertheless not excused if the loss was caused also by his default, as by bad stowage, or other negligence. And if he is informed that the goods are perishable, or should know it from the nature of the goods, he is bound to use all reasonable means and precautions to prevent the loss, {y) So if a particular (.s) Charleston S. B. Co. v. Bason, he wa.s driving gently. Per Lord Holt, Harper, 262. in Farrar v. Adams, Bull. X. P. 69. See (/) Chouteau V. Leech, 18 Pa. 224. also Leach v. Baldwin, 5 Watts, 446; («) Bird V. Cromwell, 1 Mo. 81. Warden v. Greer, 6 Watts, 424; Clark v. (v) Steamboat Lynx i'. King, 12 Mo. Barnwell, 12 How. 272. And where there 272. See Notara v. Henderson, L. R. 5 is a custom to carry goods in open wag- Q. B. .346 ; 7 Q. B. 225. ons, of which the sender had notice, the (to) Thus, if an action be brought carrier is not liable for injuries caused again.st a carrier for negligently driving by rains during tlie transportation. Chev- his cart, so that a pipe of wine was burst aillier i'. Patton, 10 Tex. 344. and lost, it will be good evidence for the (x) Hall v. Kenfro, 3 Met. (Ky.) 51. defemlant that the wine was upon the (y) Farrar v. Adams, supra. ferment, and when the pipe was burst 1 A common carrier is not liable for loss or damage caused by an inherent defect in the thing or animal carried without any fault of the carrier, or l)y the manner of pack- ing or loading, the responsibility of which the owner has assumed, or by any want of care which the owner was to exercise. Rixford v. Smith, 52 N. H. 355 ; Chajjin v. Chicago, &c. R. R. Co. 79 la. 528. But where the can.se of damage to live-.'^tock, for which recovery is sought, is not cotmected with the conduct, character, or propensities of the animals undertaken to be carried, tlie ordinary responsibility of the carrier should attach. McCoy v. K. & D. M. R. Co. 44 la. 424. 'Thus Blower v. Great Western Hail- way, L. R. 7 C. P. 655, deciiled that a common carrier was not lialth^ for the loss of a bullock which escaped .solely by its own efforts from a proper car in wliich it had been placed, and was killed without any negligence on the carrier's part. Carriers of live- stock are liable for anv loss occasioned by their failure to ])rovide tliem with water. Toledo. &c. R. Co. v. Hamilton, 76 111. 39.3. See Michigan, &c. R. Co. i: McDouough, 21 Mich. 165. — K. 171 163 THE LAW OF CONTRACTS. [book hi. notice is given him; as by marking the box, "Glass, this side up," or the like, he is bound to take notice and follow these directions, (z) *163 * Losses by the public enemy include those only which are sustained from persons with whom the State or nation is at war; and pirates on the high seas, who are "the enemies of all mankind;" (a) but not thieves; or robbers; nor mobs; nor rioters, insurgents, or rebels, (b) But this principle may be affected by the rule that robbery at sea is piracy. SECTION VI. who is a common carrier. To determine who is a common carrier, we adopt the definition of Mr. Chief Justice Parker of Massachusetts. " He is one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place, "(c) ^ And we regard this as a (z) Thus, where a box containiug a glass bottle filled with oil of cloves, de- livered to a conimou carrier, was marked, "Glass — with care — this side up;" it ■was held, that this was a sufficieut uotice of the value and nature of the contents to charge him for the loss of the oil, occa- sioned by his disregarding such direction. And Shaw, C. J., said ; " It is not denied that the box was marked, ' Glass — with care — this side up,' which was quite sufficient notice to the defendant tliat the article was valuable, and liable to injury from rough liaiidling and other causes, and that there was danger in carrying it in any other position than the one indicated by the inscription. As the carriage is a matter of contract, as the owner has a right to judge for himself what position is best adapted to carr3'ing goods of this description with safety, and to direct how they shall be carried, and as the carrier has a right to fix his own rate for the carriage, or refuse altogether to take the goods with such directions, the court are all of opinion, that if a carrier accepts goods for carriage, thus marked, he is bound to carry the goods in the manner and position required by the notice. Here it is in evidence, and not denied, that the box was stowed in such a manner that the marked side was not kept up, and consequently the large bottle, which was broken by some cause in the passage, after it was stowed and before its arrival, bore its weight upon its side, and not on its bottom." Has- tings V. Pepper, 11 Pick. 41. See also Sager i\ Portsmouth Kailroad Co. 31 Me. 228 ; and Cougar v. Galena R. R. Co. 17 Wis. 477. («) Story on Bailm., §§ 25, 526; An- gell, Com. Car. § 200. We have ventured to include pirates within the exception of " public enemies," on the authority of these eminent text-writers. The cases however, which they cite, arose upon bills of lading, which contained tlie ex- ception of the " ])erils of the sea ; " and the only question made in those cases was whether a loss by pirates came within tiie latter exception ; and the tes- timou}- of merchants was taken as to the mercantile usage in that respect. See Pickering v. Barkley, 2 Roll. Abr. 248 ; s. c. Styles, 132 ; Barton v. Wolliford, Comb, 56. {h) Morse v. Slue, 1 Vent. 190. 238. (c) Dvvight V. Brewster, 1 Pick. 50. 53. A similar definition is given in Rob- ertson V. Kennedv, 2 Dana, 430 ; Elkins V. Boston & Maine R. R. Co. 3 Foster (N. H.), 275; Mershon v. Hobensack, 2 N. J. 373. So in Gisbourn v. Hurst, 1 1 An express company that receives and agrees to transport goods from a certain place to another for a compensation, in the ordinary means of convevance, although 172 CH. XI.] BAILMENT. 164 true definition, although in some of the States it has been held, that a wagoner who carried goods on a special request, although such carrying was not his general business, but only * occasional and incidental, was still a common carrier, (rf) * 164 Salk. 249, it was resolved, that " any man undertaking for iiire to carry the goods of all persons indifferently is a common carrier." {(I) Gordon v. Hutchinson, I W. & S. 285. In this case the defendant being a farmer, applied at the store of the plain- tiff for the hauling of goods from Lewis- town to Bellefonte, upon his return from the former place, where he was going with a load of iron. He received an order and loaded the goods. On the way, the head came out of a hogshead of molasses, and it was wholly lost; and this action was brought to recover the price of it. The defendant contended that he was not subject to the responsi- bilities of a common carrier, but only answerable for negligence, inasmuch as he was only employed occasionally to carry for hire. But the learned judge before whom the case was tried in- structed the jury that he was liable as a common carrier. And the Supreme Court held the instruction to l)e correct. 6'/6so«, C. J., said ; "The best definition of a common carrier, in its application to the business of this country, is that which Mr. Jeremy (Law of Carriers, 4) has taken from Gisbourn v. Hurst, 1 Salk. 249 [see preceding note], which was the case of one who was at first not thought to be a common carrier, only because he had, for some small time before brought cheese to London, and taken such goods as he could get to carry back into the country, at a reasoualjle price ; but the goods having been distrained for the rent of a barn, into which he had put his wagon for safe-keeping, it was finally resolveil that any man undertaking to carry the goods of all persons indifferentbj, is, as to exemption from distress, a com- mon carrier. Mr. Justice Storji has cited this case (Commentaries on Bailments, .322), to prove that a common carrier is one who holds himself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occu- pation, pro hdc vice. My conclusion from it is different. I take it a wagoner who carries goods for hire is a common car- rier, whether transportation be his prin- cipal and direct business, or an occasional and incidental employment. It is true, the court went no further than to say the wagoner was a common carrier, as to the privilege of exemption from dis- tress; but his contract was held not to be a private undertaking, as the court was at first inclined to consider it, but a public engagement by reason of his readiness to carry for any one who would employ him, without regard to his other avocations ; and he would consequently not only be entitled to the privileges, but be subject to the responsibilities of a common carrier; indeed, they are cor- relative, and there is no reason why he should enjo}' the one without being bur- dened with the other. Chancellor Kent (2 Com. 597) states the law, on the authority of Robinson v. Dunniore, 2 B. & F. 416, to be, that a cairier for hire in a particular case, not exercising the business of a common carrier, is answer- able only for ordinary neglect, unless he assume the risk of a common carrier by express contract , and Mr. Justice Slorij (Com. on Bailments, 298), as well as the learned annotator on Sir William Jones^ Essay (Law of Bailm. 10.3 d. n. 3), does the same on the authority of the same case. There, however, the defendant was held liable, on a special contract of warranty, that the goods should go safe ; and it was therefore not material whether he was a general carrier or not. The judges indeed said that he was not a common carrier, but one who had put himself in the case of a common carrier by his agreement; yet even a common carrier may restrict his responsibility by a special acceptance of the goods, and not the owner, and having no interest in the conveyance by which the goods are transported, is a common carrier. (Overland, &c. Express Co. v. Carroll, 7 Col. 43 ; U. S. Express Co. v. Backman, 28 Ohio St. 144 ; Bennett v. Northern Pac. Express Co. 12 Ore. 49; Grogan v. Adams Express Co. 114 Pa. 523; but not a log-drivuig com- pany, Mann v. \\ bite River Log, &c. Co., 46 Mich. 38. Nor a vessel hired to carry a single cargo. The Dan, 40 Fed. Rep. 691 ; cf. Liver Alkali Co. c. Joiinson, L. R'. 9 Ex. 338, where a lighterman letting barges to one customer at a time under a sepa- rate agreement with each for the conveyance of goods between any points such cus- tomer wished, was held liable for goods lost without negligence. Sleeping and parlor car companies are not common carriers. See ca.ses cited ante, p. * 145, n. 173 105 THE LAW OF CONTRACTS, [BOOK Til. It may sometimes be difficult to draw the line ; and more ♦165 ditiicult * in this country than elsewhere, where men so may also make himself answerable by a special a9 101 180 I CH. XI.] BAILMENT. * 172 general ship which is put up for a voyage which she never went before, and is never to go again. If the question were wholly unsettled, it might perhaps be doubted whether such a vessel becomes a common carrier; for if she does, it can hardly be denied that she is bound to take the goods of any one who offers them. But the distinction between a regular packet-ship and a general freighting ship for a particular voyage, does not seem to have been taken by the courts. ^ Still, it is usual in all ships for the master to give a bill of lading for goods received, by which he engages to deliver them to *the order of the * 172 party from whom he receives them, certain risks excepted. This ancient document, in almost universal use among mercan- tile nations, undoubtedly determines the rights and duties of the parties, so far as it aff'ects them. Thus, it usually excepts " the perils of the seas ; " and then the ship is not responsible for a loss by one of these perils, although it could not be referred to the "act of God."(iv)^ And if other exceptions were introduced, they would limit the liability accordingly. So also if a ship is hired by a charter-party, to carry goods for the hirers on a cer- tain voyage, or a certain time, and upon certain terms, this char- ter determines the relation of the parties, and their rights and responsibilities, and not the law of common carriers. Eailroad companies have carried goods but for a short period ; but wherever they are established they supersede almost all other modes of conveyance ; they exist expressly to carry goods and passengers ; their termini and routes are definitely fixed ; they advertise for freight, offering to the public the terms on which they will receive it.^ It seems strange that a doubt whether {iv) As to what losses come within v. Shepherd, 3 Story, 349 ; Whitesides i'. the exception of " perils of the sea," see Thurlkill, 12 Sm. & M. 599 ; The Rebecca, the following cases: Williams v. Grant, Ware, 188, 210; Van Syckel i-. The Ewiug, 1 Conn. 487; McArthur v. Sears, 21 Crabbe, 405 ; The Newark, 1 Blatchf. C. Wend. 190; Plaisted v. B. & K. Steam C. 203 ; Clark ;;. Barnwell, 12 How. 272 ; Navigation Co. 27 Me. 132; The Brig Rich y. Lambert, 12 How. 347. As to Casco, Davies, 1 84 ; Gordon f. Buchanan, rats, Laveroni v. Drury, 16 PI L. & E. 5 Yerg. 71 ; Turney v. Wilson, 7 Yerg. 510; s. c. 8 Exch. 166. As to the excep- 340 ; Bulier v. Fisher, 3 Esp. 67 ; The tion of loss by " robbers," or " dangers of Schooner Reedside, 2 Sumner, 567 ; King the roads," see De Rothschild v. R. M. 1 See ante, p *163, n. I. 2 As to " thieves," " barratry," or " damage," capable of being covered by insur- ance, see Taylor v. Liverpool & Great Western Steam Co. L. R. 9 Q. B. 546, and Spinetti v. Atlas Steamship Co. 80 N. Y. 71. — K. 3 That railroad companies are carriers for hire, and, being engaged in a public em- ployment affecting the public interest, are, unless protected by their charters, subject to legislative control as to their rates of fare and freight, see Chicago, &c. R. Co. v. Iowa, 94 U. S. 155 ; Dow (-. Beidelmann, 125 U. S. 680. Rae v. Grand Trunk R. Co. 14 Fed. Rep. 401, decided that a State may require a railroad to draw cars of other corporations at rea.sonable times and for reasonable compensation. — K. 181 * 173 THE LAW OF CONTRACTS. [BOOK III, tlicy were common carriers could ever have existed ; that they are, is, however, abundantly settled by authority, (a-) And re- ceivers of railroad companies, if liable as carriers in their own State, may be sued as such in another State, {xx) And trustees for mortgage bondholders, when in possession and running the railroad, are liable as common carriers, (xy) It has been said that there is no difference between railroads and common highways, as to the care necessary in the construc- tion and management of vehicles used upon them, (y) * 173 Owners * of cars are liable as common carriers, although the State owns and manages the railroads, (z) There are some peculiarities in the law which regulates the lia- bilities of railroad companies, which we shall speak of hereafter. Still more recently telegraph companies have been established, and are now very largely employed for the conveyance of mes- sages. Communication by telegraph is so peculiar in its nature, that it must be governed by peculiar laws, nor can they exist as a system until that be created by statutory provisions, or by adjudication. We give the principles and cases which relate to this subject in the chapter on the Law of Telegraphs. SECTION VII. OBLIGATIONS OF A COMMON CARRIER. A private carrier may or may not carry for another, as he pre- fers. But a common carrier is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment; and is liable to an action in case of refusal. (7j) ^ But he is entitled to his pay; he may demand it. Steam Packet Co. 14 E. L. & E. 327 ; s.c. the goods were carried in this manner for 7 Exch. 7.34. See ;)os^, chapter on the Law temporary conveuieuce only. Elkins v. of Shippinir. Boston & Maine Kailroad Co. 2 Foster (.r) Thomas v. Boston & P. R. R. Co. (N. H.), 27.5. 10 Met. 472 ; Pickford v. Grand Junction (xx) Paige v. Smith, 99 Mass. 395. R. R. Co. 8 M. & W. 372 ; Norwav Plains (xi/) Rogers r. Wheeler, 2 Laus. 486. Co. V. B. & M. R. R. Co. 1 Gray, 263. (//) Beers v. Housatonic R. R. Co. 19 They are not common carriers of goods Conn. .566. by their passenger trains, and evidence of (z) Peters v. Rvlancjs, 20 Pa. 497. one or two instances in which they have See also Schopman v'. B. & W. R. R. Co. 9 so carried will not prove that tliey in- Cush. 24. See post, p. * 250 tended to hold themselves out as such (b) Lane y. Cotton, 12 Mod. 472, 484; carriers, but the presumption will be that Jackson v. Rogers, 2 Show. 327 ; Johnson 1 In Pfister v. Central Pacific R. R. Co. 70 Cal. 169, the plaintiff, having purchased a ticket, sought to carry on the defendant's train satchels containing S91,952, in coin, 182 CH. XI.] BAILMENT. *1T4 and if it be refused, he may refuse to carry the goods. The owner of the goods may tender him the freight-money ; or, if the money is not demanded by the carrier, he may aver and prove that he was ready and willing to pay the freight-money, and this will be equivalent to a tender, (c) * Payment of * 174 the fare has been inferred without proof, from the mere usage to pay ; (d) but we doubt whether this could safely be adopted as a general rule. Carriers are not bound to adopt every contrivance invented or supposed to promote the safety of the goods they carry, but are V. Midland Railway Co. 4 Exch. 367 ; Pickford v. The Graud Junction Railway Co. 8 M. & W. 372 ; p:ast Tennessee R. R. Co. V. Nelson, 1 Cold. 271. Contra, Costa R. R. Co. V. Moss, 23 Cal. 323. (c) Pickford v. The Graud Junction Railway Co. 8 M. & VV. 372; s. c. 12 id. 766. So if the carrier demands payment before he receives the goods, and demands a larger sura than he is entitled to receive, the owner of the goods may pay him such sum as he demands, under protest, and re- cover back the e.xcess in an action for money had and received. And to entitle him to recover in this action, it is not ne- cessary that he should make a tender to the carrier of such sum as he is entitled to receive. Parker r. The Gre.it Western Railway Co. 7 Man. & G. 253, 8 E. L. & E. 426,"' II C. B. 543; Edwards v. The Great Western Railway Co. 8 E. L. & E. 447 ; s. €. 11 C. B. 588 ; Crouch v. The London Railway Co. 2 Car. & K. 789; V. Pigott, cited in Cartwright v. Rowley, 2 Esp. 723 ; Parker l\ The Bristol & E. Railway Co. 7 E. L. & E. 528 ; s. C. 6 Exch. 184, 702. The same rule holds where the carrier, not having received his pay in advance, nor made any special agreement, refuses to deliver the goods at the end of his transit until he is paid a larger sum for the carriage than he is entitled to receive. Thus in Ashmole V. Wainwright, 2 Q. B. 837, the defend- ants, common carriers, refused to deliver the plaintiff's goods, which they had car- ried for him, except on payment of £5 5s. charges. He insisted that he was not liable to pay anytliing; but ultimately, the defendants having said that they would take nothing less than the whole sum, he paid the whole to regain his goods, protesting that he was not liable to pay anything, and that if he was liable, the charge was exorbitant. He had not tendered or named any smaller sum. Afterwards, witiiout having de- manded the return of any surplus, he brought assumpsit for money had and received, claiming by his particular the whole sum, as having been paid in order to obtain possession of his goods, under protest that he was not liable to pay the same, or any part thereof, or, if he was liable to pay some part, that the sum was exorbitant. The jury having found that the defendant was entitled to charge £1 10s. 6f/., the court held, that the plaintiff was entitled to recover the dif- ference in this form of action ; and that it was not necessary to his right of recovery that he should have temlered any specific sum. But, seinhle, per Patteson, J., that if a party, simply denying that anything is due, tenders a sum which is accepted, but which exceeds the sum legally demand- al)le, he cannot recover back the excess. This case was doubted by Pollock, C. B., in the case of Parker v. The Bristol & E. Railway Co. 7 E. L. & E. 528 ; s. c. 6 Exch. 184, 702, on the ground that the action for monev had and received, must be brought for a definite, clear, and cer- tain sum, and not for some unknown sum, which is to depend upon the verdict of the jury, who are to decide whether the defendant has received the money or not. He stated, however, th.at the doubt be- longed exclu-iively to his own mind, and not to that of the rest of the court, who were satisfied with the decision, and alto- gether agreed with it, not merely as a binding authority, but as agreeable to their own opinion and judgment. (d) McGill v. Rowand, 3 Pa. 451. but the defendant refused to allow it. The court held that the defendant wa.s not bound to carry coin, the code defining the obligation of carriers as restricted to what- ever " he undertakes or is accustomed to carry." 183 * 175 THE LAW OF CONTRACTS. [BOOK III. bound to apply any apparatus known to be useful and in common use. ((/(/) Au act of Congress was passed March 3, 1851, entitled, " An act to limit the liability of ship-owners and for other purposes ; " and under the provisions of this act it is held that a carrier by water is not liable for the baggage of a passenger destroyed by tire without the carrier's default, (c^e) But this statute does not apply to a common carrier who ships goods over a part of his route on a vessel which he neither owns nor charters ; and he is liable for injury to goods caused by an accidental fire on such a vessel, {df) It is a good excuse for the carrier's refusal that his carriage was full, (e) or that the goods would endanger him, or incur themselves extraordinary danger, (/) or are not such as he car- ries in the known and usual course of his business ; (5') ^ or that he cannot, at the time and in the way proposed, receive them without unreasonable loss and inconvenience. And he is * 175 not * obliged to receive them until he is ready to set forth on his route, {h) And if perishable goods are offered him by one owner, and goods non-perishable by another owner, and he cannot take all, he may take the perishable goods, as they will suffer most by the delay, (/t/t) A common carrier may make what contract he will as to his compensation ; but a tender of his usual, or of a reasonable compensation, obliges him to carry ;(t) and when he carries with- (dd) Steinweg v. Erie R. R. Co. 43 N. the plaintiff refused to do so, wherefore Y. 123 ; Case v. Northern, &c. R. R. Co. and because the defendants did not know 59 Barb. 644. See also Caldwell i;. New what the package contained, they refused Jersey Steamboat Co. 47 N. Y. 282. to receive and carry it ; the plea was held (d'e) Chamberlain v. Western Trans- bad, for that a carrier has no general portation Co. 44 N. Y. 305. right, in any case and under all circnm- ( df) Hill Manufacturing Co. r. Boston, stances, to require to be informed of the &c. li. R. Co. 104 Mass. 122. contents of packages tendered to them to (e) Lovett r. Hohbs, 2 Show. 127. But be carried, not, it seems, if he has issued a ticket for ((/) Sewall v. Allen, 6 Wend. 335; the journey, and has put no condition to Tunnell '•. Pettijohu, 2 Harring. (Del.) his liability. Hawcroft i'. Great Northern 48; Citizens' Bank i-. Nantucket Steam- Railway Co. 8 E. L. & E. 362. boat Co. 2 Story, 16 ; Johnson v. The Mid- ( /■)' Edwards v. Sherratt, 1 East, 604; land Railway Co. 4 Exch. 367. The'Nitro-Glvcerine Case. 15 Wall. 524; (h) Lane' r. Cotton. 1 Ld. Ravm. 646, Pate V. Henry, 5 Stew. & P. 101. But 652 ; s. c. 1 Comyns, 100, 105. where, to an action against the defend- [hh) Marshall v. New York, &c. R. R. ants as common carriers, for refusing to Co. 45 Barb. 502 ; Tierney v. New York, carry a package of the plaintiff, the de- &c. R. R. Co. 76 N. Y. 305 ; Michigan fendants pleaded that when the package Central R. R. Co. v. Burrows, 33 Mich. 6. was tendered they reque.sted the plaintiff (/) Harris v. Packwood, 3 Taunt. 264. to inform them of its contents, and tiiat 1 A carrier, in the absence of improper concealment by the shipper, must inquire as to the nature and value of goods shipped, failing to do which he cannot escape liability. Merchants', &c. Co. v. Bolies, 80 111. 473. —K. 184 CH. XI. J BAILMENT. * 175 out special agreement, this is all the compensation he can recover. If he carries articles, as, for example, bags of grain, for freight, and is to return the empty bags without charge for freight, this is not a gratuitous carriage, of the bags, as the freight paid for the full bags is compensation also for the return of empty bags, (m) In the absence of special agreement, he must treat all persons alike ; but it is said that he is under no obliga- tions at common law to charge equal rates of carriage to all his customers. (J) Where required by statute to make reasonable and equal charges against all, he cannot, by by-laws or rules, dis- criminate as to amounts or modes of computation between persons according to their occupations, but must carry the same amount, the same distance, for the same price, for all persons, (k) ^ All carriers are held to act by their agents, and to be responsi- ble for the acts of their servants and agents, under the common rules of agency. (/) If the character of the goods carried is substantially changed by a cause for which the carrier is responsible, the owner need not receive them, and the carrier is responsible for their whole value, and a recovery thereof from him vests the property therein in him ; but if only partially injured, the carrier is liable only to the extent of the injury, and the property in the goods remains in the owner, (m) It is now common to send articles by a carrier, who is to receive the price on delivery of the goods. He is the agent of the sender for this purpose. From the cases it would seem that if the carrier undertakes to collect the price, he must do so, and if he delivers the article without receiving the price, he makes himself liable therefor, (mw) ^ But it is also held that merely (//) Pierce v. Milwaukee, &c. R. R. Co. See McDuffee v. Portland, &c. R. Co. 52 23 Wise. 387. N. H. 430 ; Messenger v. Peun. R. Co. 8 (/) Baxendale v. Easteru Counties Vroora, 531'; Stewart v. Lehigh, &c. R. Co. Railway Co. 93 Eng. C. L. 63. 9 Vroom, 505. (k) Pickford r. Grand Junction Rail- (/) See Machu v. Railway Co. 4 Exch. way Co. 10 M. & W. 399 ; Parker v. Great 415, and Butcher v. L. & S.'W. R. Co. 16 Western Railway Co. 7 Man. & G. 253, C. B. 13. 8 E. L. & E. 426; lie. B. 545; Edwards (/«) Hackett v. B. C. & M. R. R. Co. V. Great Western Railway Co. 8 E. L. & 35 N. H. 390. E. 447; s. c. 11 C. B. 588"; Crouch v. The (mm) Meyer v. Lemcke, 31 Ind. 208; Loudon Railway Co. 2 Car. & K. 789. Murray v. Warner, 55 N. H. 546. 1 An Act of Congre.ss approved Feb. 4, 1887, known as the " Interstate Commerce Act," forbids discriuiination in charges by railroads running from one State or Terri- tory into another, or into a foreign country. And different States have enacted laws on the subject. See Illinois Central R. R. Co. v. People, 121 111. 304; State v. Fre- mont, &c. R. R. Co. 22 Neb. 313 ; Gulf, &c. Ry. Co. v. Dwyer, 75 Tex. 572. "■^ If a consignor instructs an express company not to permit the consignee to ex- 185 176 THE LAW OF CONTRACTS. [book III. marking the article C. 0. D., or Cash on Delivery, is not enough to make him liable without some undertaking on his part ; but this may be proved directly, or inferred from a usage, {iim) SECTION VIII. WHEN THE RESPONSIBILITY BEGINS. As soon as the goods are delivered and received, they are at the risk of the carrier. This reception of them may be * 176 specific *or general, and according to the usage of his business ; and it may be actual or constructive, {n) But the delivery to the carrier is not complete if the goods are still in charge of the owner or his representative ; the delivery must place the goods in the custody of the carrier, (o) The delivery (mn) Chicago, &c. R. R. Co. v. Merrill, 48 111. 425. (n) Merriam v. The Hartford Railroad Co. 20 Conn. 354. See Green v. Mil- waukee, &c. li. Co. .38 la. 100. {o) Brind v. Dale, 8 C. & P. 207 ; Kent V. Midland R. Co. L. R. 10 Q. B. 1 ; Clark V. Burns, 118 Mass. 275. It frequently becomes a difficult question of fact whether goods have been so delivered to a carrier as to be in his custody and under his con- trol, or whether they still continue under the control of the owner or his servant. There are several cases in the books which have turned upon this question. Tims, in the case of the East India Co. v. Pullen, 2 Stra. 690, an action was brought against the defendant as a common car- rier, on an undertaking to carry for hire on the River Thames, from the ship to the company's warehouses. It appeared in evidence tliat the defendant was a com- mon lighterman, and that it w^as the usage of the company, on the unshipping of their goods, to put an officer, who was called a guardian, into the lighter, who, as soon as the lading w^as taken in, put the company's locks on the hatches, and went with the goods to see them safely delivered at the warehouse. It a])peared that such was the course iu this case, and part of the goods were lost. Upon this evidence, Raymond, C. J., was of the opin- ion that " this differed from the common case, this not being any trust in the defendant, and the goods were not to be considered as ever having been iu his pos- session, but in the possession of the com- pany's servant, who had liired the lighter to use himself." The plaintiff was accord- inglv nonsuited. So in the case of Tower r. The Utica & S. Railroad Co. 7 Hill (N. Y.), 47, where an action was brought to charge a railroad company as common carriers, for the loss of an overcoat belong- ing to a passenger, and it ajjpeated that the coat was not delivered to the defend- ants, but that the passenger, having placed it on the seat of the car in wliicli he sat, forgot to take it with him when he left, and it was afterwards stolen ; it was held that the defendants were not liable. And Nelson, C. J., said : " The overcoat was not delivered into the possession or cus- tody of the defendants, which is essential to their liability as carriers. Being an article of wearing apparel of present use, and in the care and keeping of the trav- amine the goods sent, before delivery and payment of charges, the company's agent is authorized to refuse such an examination, and incurs no personal liabilitv bv returning the goods to the consignor. Wiltse v. Barnes, 46 la. 210. But generallv the assignee is entitled to examine the goods. Lyons v. Hill, 46 N. H 49. 186 CH. XI.] BAILMENT. *177 to a ship is complete * when the master, or mate, or other *177 agent of the owner, receives them, either at the ship, or on the wharf, or in a warehouse, if such delivery and receipt be according to the usage. And the owners of the ship forthwith become insurers as to all but the cases excepted by law, or by the bill of lading, (p) Delivery may be made in a different way, or at a different time or place, from that which is usual, or notified to the public ; such difference being requested, or suggested by eller himself for that purpose, the defeud- ants have a riglit to say tliat it shall be regarded iu the same light as if it had beeu upon his person. No carrier, how- ever discreet and vigilant, would think of turning his attention to property of the passenger in the situation of the article iu question, or imagine that any responsi- bility attached to liim iu respect to it." (Jn the other hand, iu Robinson v. Dun- more, 2 B. & P. 416, it appeared in evi- dence that the plaintiff, who was an upholsterer, having occasion to send some furniture into the country, agreed with the defendant to take tlie same ; that the defendant brought his cart to the plain- tiff's house, where the goods were loaded in the presence of the plaintiff himself, and with the assistance of two of the jilaintiff's servants; that the plaintiff hav- ing observed that the tarpaulin which the defendant had brought for the purpose of covering the cart was too small, the de- fendant said, " I have plenty of sacks, and I will warrant the goods shall go safe ; " that, on account of the defendant's being a stranger to the plaintiff, tiie latter sent one of his own porters with the cart, who would otherwise have goue by the stage ; that this porter, in the course of the jour- ney, paid a person for watching the goods one night ; and that the goods in the course of the journey were damaged by rain. Upon these facts, the jury, under the direction of Lord Eldon, before whom the case was tried, found a verdict for the plaintiff. And a rule nisi having beeu obtained for setting this verdict aside and entering a nonsuit, Chambre, J., said : " This is a very clear case. The defend- ant is not a common carrier by trade, but has put himself into the situation of a common carrier by his particular war- ranty. As to possession, that seems clearly proved by the circumstances of the case ; the defendant attends with his horse and cart at the plaintiff's house, where the goods are delivered to liim and ])Ut into the cart by the plaintiff's ser- vants. This is a complete possession. How is this affected by the presence of the plaintiff's servant ? It has been de- \ termined, that if a man travel in ) Thus, where the owners of a stage- coach employed a driver, under a contract that he should receive a certain sum of money per month, and the compensation which should be paid for the carriage of small parcels, it was held, that the owners would be answerable for the negligence of the driver in not delivering a parcel of that description, intrusted to him to carry, unless this arrangement was known to the proprietor of the goods, so that he con- tracted with the driver as principal. Bean V. Sturtevant, 7 N. H. 146. See also Allen V. Sewall, 2 Wend. 327 ; s. c. 6 id. 335 ; Hosea v. McCrory, 12 Ala. 349 ; Chouteau V. Steamboat, 16 ]\Io. 216; Whitmore v. Steamboat Caroline, 20 id. 513. See also the case of Farmers and Mechanics Bank V. Champlain Transportation Co. 23 Vt. 186, in which these points are thoroughly considered. See the facts of the case stated post, p. * 187, note (s). One of the points made was whether the defendants were to be held as common carriers of the bank-bills in question. Upon this point Redjield, J., said : " It seems to us that when a natural person, or a corporation, whose powers are altogether unrestricted, erect a steamlioat, appoint a captain, and other agents, to take tlie entire control of their boat, and thus enter upon the carry- ing business, from port to port, they do constitute the captain their general agent to carry all such commodities as he may 192 choose to contract to carry within the scope of the powers of the owaiers of the boat. If this were not so it would form a wonder- ful exception to the general law of agency, and one in which the public would not very readily acquiesce. There is hardly any business in the country, where it is so important to maintain the authority of agents, as in this matter of carrying by these invisible corporations, who have no local habitation, and no existence or power of action except through these same agents, by whom almost the entire carrying busi- ness of the country is now conducted. If, then, the captains of these boats are to be regarded as the general agents of the owners, — and we hardly conceive how it can be regarded otherwise, — whatever commodities, within the limits of the powers of the owners, the cai)tains, as their general agents, assume to carry for hire, the lial)ility of the owners as carriers is thereby fixed, and they will be held responsible for all losses, unless, from the course of business of these boats, the plaintiffs did know or upon reasonable inquiry might have learned, that the cap- tains were intrusted with no such author- ity. Prima facie the owners are liable for all contracts for carrying, made by the captains or other general agents for that purpose, within the powers of the owners themselves, and the oiutf. rests upon them to showtiiat they)laintiffs iiad made a pri- vate contract with the captain, which it was understood should be kept from the knowledge of the defendants, or else had given credit exclusi^■ely to the captain. But it does not appear to us that the mere fact that the captain was, by the company, permitted to take the perquisites of carry- ing these parcels, will be sufficient to ex- onerate the company from liability. Their suffering him to continue to carry bank- bills ought, we think, to be regarded as fixing their responsibility, and allowing the captain to take the perquisites, as an arrangement among themselves." CH. XI.] BAILMENT. * 183 tered in two ways. If the hirer provides and pays the officers and crew, in this case the owner is not more liable for their acts than if he had sold the ship, (c) If the owner agrees to man the ship, and then the hirer hires ship, officers, and crew, *of the owner, the owner alone is in general responsible * 183 for the acts of the officers and men in reference to the goods, because his possession and control of the ship for that voy- age are sufficient to render him thus liable, (d) The owner of the ship is certainly liable for the acts of those whom he provides and pays, where the goods were laden on board on his credit, trusting to him as the owner of the ship, he knowing this trust, and by his words or conduct authorizing it, and so accepting the respon- sibility. So an owner of a ferry who has leased it and placed the lessee in possession, is not liable for loss of goods in crossing the ferry, (e) SECTIOX IX. WHEN THE KESPONSIBILITY ENDS. As the liability of the carrier begins with the delivery of the goods to him, so it continues until the delivery of the goods by him. For he is bound not only to carry them to their destined place, but to deliver them there to the bailor, or as the bailor may direct. (/) And th'is he must do within what shall be a reasonable time, judging from all the circumstances of the case ; (g) ^ and within the proper hours of business, when the (c) James !/•. Jones, 3 Esp. 27 ; Vallejo 4.5; Ostrander i'. Brown, 15 Johns. 39; V. Wheeler, Cowp. 143; Frazer v. Marsh, Eagle v. White, 6 Whart. 505; McHenry 13 East, 238; Keynolds v. Toppan, 15 v. Railway Co. 4 Harring. (Del.) 448; Mass. 370; Marquette Bank v. Stewart, Adams y. Blankenstein, 2 Cal. 413. The 26 Mich. 83. bailor undertakes also that a proper per- {d) Parish v. Crawford, Stra. 1251; son shall be at the de.stination of the goods, Emery v. Hersey, 4 Greenl. 407 ; Mclntire and in default thereof, the liability of the V. Browne, 1 Johns. 229 carrier, upon due notice, is discharged. (e) Ladd v. Chotard, Minor (Ala.), 366. Marshall, &c. v. Am. Express Co. 7 Wis. 1. (/) Golden v. Manning, 3 Wils. 429 ; (17) Hand v. Baynes, 4 Whart. 204; s. c. 2 W. Bl. 916 ; Hyde v. Trent & Mer- Favor v. Philbrick, 5 N. H. 358 ; Wallace sey Navigation Co. 5 T. R. 389; Wardell v. Vigus, 4 Blackf. 260; Nettles v. Rail- V. Mourillvan, 2 Esp. 693 ; Storr v. Crow- road Co. 7 Rich. L. 190; Raphael v. Pick- ley, McClel. & Y. 129; Gibson v. Culver, ford, 6 Scott, N. R. 478. 17 Wend. 305 ; Fisk v. Newton, 1 Deuio, 1 In the absence of a special contract, the law implies an agreement on the part of a common carrier to transport merchandise within a reasonable time, and if he negli- gently omits to do so, and its market value falls, the measure of damages is the differ- ence in its value at the time and place it ought to have been delivered, and at the time VOL. II. 13 193 IS'i THE LAW OF CONTRACTS. [book III. goods can be received and properly stored, (h) And misdelivery (/i) Eagle V. Wliite, 6 Whart. 505. In this case the ilefeudants, wlio were commou carriers on tiic railroad from Philadelphia to Cohunhia. undertook to carry certain boxes of goods belonging to the plaintiffs from riiiladelphia to'Columhia. The cars arrived at the latter place about sunset on a Saturday evening, and by the direc- tion of the plaintiffs were placed on a sideling. The plaintiffs declined receiv- ing the goods that evening, on the ground that it was too late ; whereupon the agent of the defendants left the cars on the side- ling, taking witli jiim the keys of the pad- locks with which the cars were fastened, and promised to return on Monday morn- ing. The cars remained in this situation until Monday morning, when they were opened by the plaintiffs by means of a key which fitted the lock ; and ou ex- amination it was discovered that one of the boxes had been opened, and the con- tents carried away ; held, that tlie defend- ants were liable to the plaintiffs for the value of the goods lost. Huston, J., di.s- sented. — So in Merwin v. Butler, 17 Conn. 138, where the defendant, who was a common carrier, received from the plaintiff a package of money, to convey it from S. to P., and to deliver it at the bank in P. ; it appeared that wlien the defendant arrived at P. the bank was shut; that he went twice to the house of the cashier, and not finding him at home, brought the money back, and offered it t(j the plaintiff, who declined to accept it ; and that the defendant then refused to he further responsible for any lo.ss or acci- dent ; it was kdd that, in the absence of any special contract (none being proved in this case), these facts did not constitute a legal excuse to the defendant for the non-performance of his undertaking. And Uinman, J., said : " That there may be cir- cumstances which would excuse a carrier from the delivery of a package is doul)t- less true, but there is nothing stated in this motion that ought to have that effect. That the bank was shut when the carrier went there, can amount to nothing, unless it appeared further that he went there at a proper time, during the ordinary busi- ness hours ; and even then we could not say, as matter of law, that tliis would be a legal excuse. It would depend upon the degree of diligence which the carrier used, to let the officers of the bank know that he had a package to deliver there. No question of this sort was raised on the trial below, nor does it appear that there was any foundation on which it could have been." See also Hill i'. Humphrevs, 5 \V. &. S. 12.3; Young v. Smith, 3 Dana, 91 ; Storr v. Crowley, McClel. & Y. 129. The question, what constitutes a sufficient delivery, is well illustrated by the case of De Mott V. Laraway, 14 Wend. 325. The defendant in that case was the owner and master of a canal boat, and received on board his boat at Troy a hogshead of molasses and other goods belonging to the plaintiffs, to be transported to Kidder's ferry, being a landing-place nearest to Farmersville, where the plaintiffs trans- acted business. All the goods were safely transported and delivered to the plaintiffs except the hogshead of molasses. The boat arrived at Kidder's ferry, and, in the attempt to hoist the hogshead of molasses into a warehouse, tiie usual place for the delivery of goods for Farmersville, the fault (part of the machinery for hoisting attached to the warehouse) broke, and the hogshead fell back into the boat, was stove, and most of the molasses lost. At the time of the accident tiie hogshead was clear of the boat, and almost up to the sill of the door of the warehouse. One of the plaintiffs was present, and had wagons there in which some of the goods were loaded. It was held, that the defendant was liable for the loss. Sutherland, J., said : " Laraway was a common carrier upon the canal, and as sucli undertook to transport the defendant's goods from Troy to Kidiier's ferry. This necessarily included the l(ire of destina- R. R. Co. 10 N. Y. (6 Seld.) 48. tion, and the consignee is dead, absent, or («) Ostrander v. Brown, 15 Johns. 39 ; refuses to receive, or is not known, and Fisk V. Newton, 1 Denio, 45. In this last cannot, after due efforts are made, be case the consignee of certain kegs of found, the carrier may di.7) Price V. Hartshorn, 44 Barb. 655. (s) See Farmers & Mechanics Bank v. Champlain Transportation Co. 16 Vt. 52, 18 id. 131, 23 id. 186. This is one of the strongest cases in the books upon this point. The defendants were common carriers on Lake Champlain, from Bur- lington to St. Albans, touching Port Kent and Plattsburg long enough to discharge and receive freight and passengers. This action was brought against them to re- cover for the loss of a package of bank- bills. It appeared in evidence that the package in question, which was directed to " Richard Yates, E.sq., Cashier, I'latts- burg, N. Y.," was delivered by the teller of the plaintiffs' bank to the captain of the defendants' boat, which ran daily from Burlington to Plattsburg, and thence to 197 * 138 THE LAW OF CONTRACTS. [BOOK III. general, as we have said, the delivery must be to the owner or consignee, or his authorized agent. But if the goods are left at his residence or (such delivery being more appropriate) at his place of business, that is equivalent to a delivery into his personal possession, and it does not seem that any personal notice * 188 is * necessary. Perhaps it may always be presumed that the owner of goods will receive information if they are left at his house ; and if not, that it is his own fault, or, if the fault of others, not that of the carrier. But where a delivery by a carrier is made at an owner's house, but not in a usual way, as if the parcel were placed in a dark corner of an entrance or back room, without attracting notice or giving information to any one, this circumstance might indicate either wrongful motive or culpable negligence ; and such delivery would not be a sufficient one. It is undoubtedly best, in all cases of delivery not to the person himself, to give notice to him, or to one certainly authorized to receive notice for him. Carriers by land usually deliver the goods they transport, by carrying them to the owner, or where he directs. And generally they can do this as easily as they can bring them into the town where he lives. But this is not the case with one important class of carriers by laud ; we mean railroads. The freight cars can go only where the rails go, and these terminate in the station-house. If the goods are to be carried further, they must be laden upon wagons or other carriages for that purpose. Moreover, it is usual for the consignor by railroad to send to the consignee notice of the consignment, and very frequently a copy of a receipt, which St. Albans ; and that, when the boat ar- usage of the place, wa.s sufficient, and dis- rived at Plattsburg, the captain delivered charged the defendants from all liability. the package to one Ladd, a wharfinger, Wlien the case w;v* before the court the and that it was lost or stolen while in last time, Rfdjield, .1., in delivering the Ladd's possession. No notice was given judgment, said : " If the law fixes the ex- by the captain of the boat to the consignee tent of the contract, iu every instance, of the arrival of the package, nor had he in the manner assumed, then, most uu- any knowledge of it until after it was doubtedly, are the defendants liable in lost. The principal question in the case this case, unless they can show, in the was, whether the package was sufficiently manner required, some controlling usage, delivered to discharge the defendants from But if, upon examination, it sbalt appear their liability as carriers. The defend- that there is no rule of law applical)le to ants offered evidence to show, that a de- the subject, and the extent of the transit livery to the wharfinger, without notice, is a matter resting altogether in proof, under the circumstances of the case, was then the course of business at the place of a good delivery according to their own destination, the usage or practice of the uniform usage, and the usage of other defendants, and other carriers, if any, at carriers similarly situated. The case has that port, and at that wharf, become es- been before the Supreme Court of Ver- sential and controlling ingredients in the mont three times, and that court has uni- contract itself." See Richardson r. God- formly held, that in the absence of any dard, 23 How. 28 ; Loveland v. Burke, special contract, a delivery to the Avhar- 120 Mass. 139. finger without notice, if warranted by the 198 CH. XI.] BAILMENT. 188 seems to take the place of a bill of lading, and is sometimes framed in very similar terms. And the arrival of the goods at a certain hour may usually be calculated upon with great cer- tainty. For all these reasons, and some others, it is usual with railroads not to send the goods out of their depots, (t) (t) Thomas v. Boston & Providence Railroad Co. 10 Met. 472. This was an action against the defendants as common carriers, to recover for the loss of a roll of leather. It appeared in evidence that four rolls of leather, the property of the plaintiff, were delivered to the defend- ants at Providence, to be transported to Boston ; that they were so transported, and were deposited at the defendants' depot at Boston ; that a teamster, em- ])loyed by tlie plaintiff, shortly after called at the depot, with a bill of the freight receipted by the defendants, and inquired for the leather ; that it was pointed out to him by the defendants' agent, Allen, who had charge of the depot; that the teamster then took away two of the rolls, and soon after called again and inquired for the other two , that he was directed where to look for them ; and that he found only one. The court held, that under these circumstances, the defendants were not liable as carriers. Hubbard, J., said : " The transportation of goods, and the storage of goods, are con- tracts of a different character ; and though one person or company may render both services, yet the two contracts are not to be confounded or blended ; because the legal liabilities attending the two are dif- ferent. The proprietors of a railroad transport merchandise over their road, receiving it at one depot, or place of de- posit, and delivering it at another, agree- ably to the direction of the owner or consignor. But from the very nature and peculiar construction of the road, the proprietors cannot deliver merchandise at the warehouse of tlie owner when situated off the line of the road, as a common wagoner can do. To make such a deliv- ery, a distinct species of transportation would be required and would be the sub- ject of a distinct contract. They can de- liver it only at the terminus of the road, or at the given depot where goods can be safely unladen, and put into a place of safety. After such delivery at a depot the carriage is completetl. But, owing to the great amount of goods transported, and belonging to so many different persons, and in consequence of the different hours of arrival, by night as well as by day, it becomes equally convenient and necessary both for tlae proprietors of the road and the owners of the goods, that they should ^ be unladen and deposited in a safe place, protected from the weather, and from exposure to thieves and pilferers. And where such suitable warehouses are pro- vided, and the goods wliich are not called for on their arri\al at the places of des- tination, are unladen and separated from the goods of other persons, and stored safely in such warehouses or depots, the duty of the proprietors as common carriers is, in our judgment, terminated. They have done all they agreed to do ; they have received the goods, have transported them safely to the place of delivery, and, the consignee not being present to receive them, have unladen them, and have put them in a safe and proper place for the consignee to take them away ; and he can take them at any reasonable time. The liability of common carriers being ended, the proprietors are, by force of law, de- positaries of the goods, and are bound to reasonable diligence in the custody of them, and consequently are only lial)le to the owners in case of a want of ordinary care. In the case at bar, the goods were transported over the defendants' road, and were safely deposited in their merchandise depot, ready for delivery to the plaintiff, of wliich he had notice, and were in fact in part taken away by him ; the residue, a portion of which was afterwards lost, be- ing left there for his convenience. No agreement was made for the storage of the goods, and no further compensation paid therefor , the sum paid being the freight for carriage, which was payable if the goods had been delivered to the plaintiff immediately on the arrival of the cars without any storage. Upon these facts, we are of opinion, for the reasons before stated, tiiat the duty of the defend- ants, as common carriers, had ceased on their safe deposit of tiie plaintiff's goods in the merchandise depot ; and that they were then responsible only as depositaries without further charge, and consequently, unless guilty of negligence, in the want of ordinary care in the custody of the goods, they are not liable to the plaintiff for the alleged loss of a part of the goods." In Norway Plains Co. v. Boston & Maine Railroad Co. I Gray, 263, it is decided, that the rule requiring carriers to make personal delivery to the consignee does not apply to railroads, transportation by which more resembles sea-carriage than 199 *190 THE LAW OF CONTRACTS. [book III. * 189 There is, perhaps, no objection to * this usage strengthen- ing itself into law. But we think in that case, that the * 190 railroad carrier should give notice forthwith, on * the arri- val of the goods, to the consigned, if his residence is known, or can be found by any reasonable exertions. We think the law should make this requirement, and this so positively that no usage against it should be permitted to control the law ; at least not unless it were quite universal, and well know^n to all, and there is some disposition to hold the law thus.(w)^ carriage by means of wagons and similar vehicles; that the nature of transporta- tion of freight by railroad is such that the implied contract between the parties is that the company will transport the goods, discharge them from the cars upon a suit- able platform, and there deliver them to the consignee if he is ready to receive them, and if he is not, that they will place them securely and keep them a reasonable time, ready to be delivered when called for ; that from this view of the duty and contract between the parties, the company are first common carriers, and after that warehousemen, responsible as the former until the goods are removed from the cars and placed upon the platform, and if, on account of their arrival in the night, or for any reason, the consignee is not then ready to receive them, it is the duty of the company to take care of them under the liability of warehousemen or keepers of goods for hire. And the court are strongly inclined to be of the opinion that it is not necessary for the company to give notice of the arrival of the goods, but that the nature of the transportation is such as to dispense with it. And see Smith v. Nashua and Lowell Ti. R. Co. 7 Foster (N. H.), 86. But in Richards V. The Lon- don Railway Co. 7 C. B. 839, it was held, that where a railway company employ por- ters at their stations to convev passengers' lliggage from the railway carriages to the carriages or hired vehicles of the passen- gers, the liability of the company as car- riers continues until the porters have dis- charged their duty. That was an action on the case against the defendants for the loss of a package. The first count of the declaration stated, that the defendants were the owners and proprietors of a rail- way for the carriage and conveyance of passengers and their luggage, &c., from A to B, for hire ; that the defendants were common carriers for hire in and upon the said railway ; that the wife of the plaintiff, at their request, became a passenger in and upon the railway, to be carried and conveyed therein and thereby from A to B, together with her luggage, consisting of a dressing-case, &c., also to be carried and conveyed by the defendants, as such carriers, in and upon the railway from A to B, and there, to wit, at the station or terminus at B, safely and securely deliv- ered for the plaintiff, for reasonable re- ward to the defendants in that behalf ; and the breach alleged was, that the defend- ants, not regarding their duty, did not use due and proper care in and about the car- riage and conveyance of the dressing-case from A to B, but took so little and such bad care in and about the carrying and conveying the same, that by and through the curelessnes.i, net/ligence. and im/n-oper conduct of the defendants in the premises, the dressing-case was lost. It was proved tliat the plaintiff's wife became a j)assen- ger by a first-class carriage, to be conveyed from A to B ; that tlie dressing-case was placed in the carriage under the seat ; that on the arrival of the train at B, the por- ters of the company took ujion themselves the duty of carrying the lady's luggage from the railway carriage to the hackney carriage which was to convey her to her residence ; and that on her arrival there the dressing-case was missing. Held, that the duty of the defendants as conimoa carriers continued until the luggage was placed in the hackney carriage ; and that the evidence entitled the plaintiff to a ver- dict upon the first count. And see Batclier V. The London & South AVestern Railwav Co. 29 E. L. & E. 347 ; s. c. 16 C. B. 13. {«) Michigan Central Railroad Co. i". Ward, 2 Mich. 538, overruled in Midi. C. R. R. Co. V. Hale, 6 Mich. 243. See Farm- ers and Mechanics Bank v. Champlain Transportation Co., ante, p. * 187, note (s) and Gibson v. Culver, ante, p.*187 note ( But .see Kiff 17. Old Colony, &c. Ry. Co. 117 Mass. 591. and note (rr). 214 See also ante, p. * 161 CH. XT.] BAILMENT. * 204 *nor if the owner or shipper has been negligent or *203 fraudulent in not disclosing the peculiar nature of goods requiring peculiar care, by the want of which care they have perished or suffered injury, (v) But the carrier is bound to take all such reasonable care of goods as he knows or should know to be necessary for them. If the carrier, on the ground of his liability for damages to the goods he undertook to transport, pays for such damages, it is equivalent to a delivery of them in safety, and re-establishes his claim for freight, (ii?) SECTION X. WHEKE A THIRD PARTY CLAIMS THE GOODS. One question in regard to the carrier's obligation to deliver goods to the shipper or consignor, has been much agitated, and perhaps is not quite settled. It arises in the case of another party claiming the goods as owner, and taking them in that char- acter from the carrier. Will such taking excuse the carrier for non-delivery ? If the goods are demanded from him by a third party on this ground, can he deliver the goods and justify his con- duct? It is quite certain that the carrier cannot himself raise the question of title in a third person, and on that ground refuse delivery to the party originally holding them, (x) And it is undoubtedly the general rule, that the carrier cannot deny * the title of the party from whom he has received the * 204 goods for transportation. In general, no agent can defend against the action of his principal, by setting up the jus tertii in (v) Edwards u. Sherratt, 1 East, 604; deliver them according to order. An Titchburne v. White, 1 Stra. 145 ; Batson indemnity was given ; and the goods not V. Donovan, 4 B. & Aid. 21. being delivered according to order, the {w) Hammond v. McClures, 1 Bay, party by whom they were delivered to the 101. carrier brought an action against the car- (x) Anon., cited in Laclouch v. Towle, rier. The learned judge would not per- 3 Esp. 1 14. This was a case tried before mit him to set up auy question of j)roperty Mr. .Justice Gould, and was to the follow- out of the j)laintiff ; and held that he, hav- ing effect. A carrier had a parcel of ing received the goods from him, was })re- goods delivered to him, to be carried from eluded from (juestioning his title, or show- Maidstone to London. While the goods ing a property in any other jjcrson. And lay at his warehouse, a person came there I^ord Keni/on, before whom the case was who said the gootls were his, and claimed cited, admitted it to be law. See also them from the carrier ; the carrier said he ante, p. * 142, note (/), and (ireat Western could not deliver tliem ; hut that if he was li. K. Co. v. McComas, 33 111. 185. indemnified he would keep them, and not 215 ^ *20^ THE LAW OF CONTRACTS. [book m. his own favor, (y) On the other hand, if the carrier delivers them to a third party, and it can be shown in an action against him that this third party was the actual and lawful owner, and that the plaintiff, who delivered the goods to the carrier, had no right to them whatever, this certainly is a sufficient defence, (z) It is held, in general, that if he does not yield to an adverse claim by a third party, he is liable to an action, in case the title * 205 of * this party be good, (a) The carrier may have his in- terpleader in equity to ascertain who has the right ; but it is not easy to see what adequate means of self-protection he has at common law. And yet he should be permitted, in some way, (y) Nickolson v. Knowles, 5 Madd. 47 ; Myler v. Fitzpatrick, 6 Mad. & G. 360 ; Dixson V. Hammond, 2 B. & Aid. 310; Roberts v. Ugilbv, 9 Price, 269 ; Hardmau V. Willcock, 9 Biiig 382, n. (a) ; Bates v. Stanton, 1 Duei^ 79. {z) This was settled after much con- sideration, in King v. liichards, 6 Whart. 418. The defendants in that case were common carriers of goods between New York and Philadelphia, and had signed a receipt of certain goods as received of A, which they promised to deliver to his order. In trover by the indorsees of this paper, who had made advances on the goods, it was held, that the defendants might prove that A had no title to the goods ; that they had been fraudulently obtained by him from the true owner ; and that upon demand made, they had delivered them up to the latter. Kennedi/, J., said ; " It is said that it would be a breach of trust or an act of treachery, on the part of the bailee, to deliver the goods, even on demand, to the true owner, not- withstanding he has received them from a wrong-doer, because he promised 4o restore the goods to such wrong-doer. If the bailee in such case receive the goods from the bailor innocently, under the impression made by the bailor that he is the owner thereof, or has the right to dis- pose of them in the manner he is doing, and therefore promises to return the goods to the bailor, it is very obvious that such a promise ought not to be regarded as binding, because obtained through a false impression, made wilfully by the bailor ; aDd_ truth, which lies at the foundation of justice, as well as all moral excellence, would seem to require, in every such case, that the goods should be delivered up to the true owner, especially if he demand the same instead of the wrongful bailor. But if the bailee knew at the time he received the goods, and made the promise to redeliver them to the bailor, with a view to favor the bailor, that the latter had 216 come wrongfully by them, either by hav- ing taken them tortiously or feloniously from the owner ; then the bailee thereby became a participant in the fraud or the felony, and it would be abhorrent to every principle of justice that he should be pro- tected under such circumstances against the demand or claim of the owner. This promise, however, of the bailee is said to be binding on him only, and is not such as his personal rejjreseutatives are bound to regard ; and the reason assigned for this is because the goods have come to their po.s.session by operation of law. This doctrine, if it were to be allowed, would certainly be singularly anomalous, and unlike, in its effect, to any other promise recognized by the law as bind- ing." See also Bates v. Stanton, 1 Duer, 79. The doctrine of the text is fully sus- tained in the case of Sheridan v. The New Quay Co., 93 Eng. C. L. 618. In giving the judgment of the court, Willes, J., says • " The defendants were common carriers and therefore bound to receive the goods for carriage. They could make no inquiry as to the ownership. They have not voluntarily raised the question ; it was raised by the demand of the real owner before the defendants had parted with the goods. The law would have pro- tected them against the real owner if they had delivered the goods in pursuance of their employment, without notice of his claim. It ought equally to protect them against the pseudo owner, from whom they could not refuse to receive the goods, in the present event of the real owner claim- ing the goods, and their being given up to him." See also The Idaho, 93 U. S. 575 ; Young i'. East Alabama Ry Co. 80 Ala. 100; American E.x Co v. Cireen- halgh, 80 111. 68 ; Wolfe r. Jlissouri Pac. Ry. Co., 97 Mo. 473 ; Western Trans Co. V. Barber, 56 N. Y. 544 ; Wells v. Ameri- can Ex. Co., 55 Wis. 23. (a) Wilson v. Anderton, 1 B. & Ad. 450. And see cases in preceding note. I CH. XI.] BAILMENT. * 206 to demand security of the party whose title seems to him the better, and to whom he is therefore willing to give the goods. And whenever security is refused, there should be no recovery against him, unless the better title of the person claiming the goods was obvious and certain, or there were other circumstances indicating that the carrier had not acted with entire good faith or proper discretion. But, in the present state of the authorities, it seems that if the carrier be called upon by such antagonistic claimants, he must decide between them at his own peril. If the goods are stopped in transitu, this would involve ques- tions which could be answered only by the law of " stoppage in transitu, " which is elsewhere considered. ^ * SECTION" XL *206 COMPENSATION. This is sometimes fixed by law ; as for incorporated companies, ferries, etc. Where it is not so fixed, the carrier may determine it himself. But having adopted and made known a usual rate, he is so far bound by it, that, on tender of this rate, he must receive the goods, and can recover no more if they are not prepaid and he carries them ; and whether it be fixed by law, or by his own established usage, it must be applied equally and indifferently ; all persons being charged the same price for carriage of the same quantity of similar goods for the same distance, (b) ^ Where, however, it is not fixed by law, the carrier may change it at his discretion, and all parties are bound who have, or might have, but for their own fault, seasonable knowledge of such change. If the hire to which he is entitled be not paid, he is not bound to deliver the goods ; and if he now retains them in his warehouse lb) See ante, p. *175, note {h). It can maintain no action for their carriage seems that although a carrier need not until the goods are delivered. Barnes v. receive goods until the price of carriage Marshall, 14 E. L. & E. 45 ; s. c. 18 Q. B. is paid, yet if he does so receive them he 785. 1 It was held that trustee process would lie against a common carrier, having in its possession within the State a sealed package of money in course of transportation to the defendant. Adams v. Scott, 104 Mass. 164. But in Illinois Central H. K. Co. V Cobb, 48 111. 40:a, it was held that whatever might be the case as to goods lying in a depot, goods actually t)eing transported could not be garnished. 2 Where rates of freight are fixed by statute, an unlawful excess paid under protest can be recovered back with interest, although at the time tiie action is brought the statute has been repealed. Graham v. Chicago, &c. R. Co., 53 Wis. 47.'3. — K. 217 207 THE LAW OF CONTRACTS. [book III. or place of business, he is liable, in case of loss or injury, only for negligence. His liability is no longer that of a common car- rier, but that of a depositary for hire or gratuitously, as the case may be ; (c) for he now holds the goods by virtue of the right we shall now proceed to consider. SECTION XII. OF THE LIEN AND AGENCY OF THE CARRIER. Whether a private carrier has a lien on the goods for his freight, is not, as we have already said, determined by the * 207 * authorities. Generally, perhaps, it has been considered that one of the distinctions between the private carrier and the common carrier is, that the first has no such lien, while the latter has, and has had for centuries, (d) No part of the law of bailments is more firmly established than that the common car- rier has this lien. He may not only refuse to carry goods unless the freight is paid to him, but if he carry them, and the freight is withheld, he may retain the goods, and obtain his freight from them in any of the ways in which a party enforces a lien on per- sonal property, (e) But a common carrier can acquire no lien on goods belonging to the United States Government for services rendered in transporting such goods. (/")^ And while he holds goods on this ground, they are not at his risk as a common car- rier, for he is responsible only as any other party who holds property as security for debt.^ (c) Young V. Smith, 3 Dana, 91. See ante, p. * 200, note {m). (d) Skinner v. Upshaw, 2 Ld. Eavm. 752 ; Hunt v. Haskell, 24 Me. 339 ; Hay- ward V. Middleton, 1 Mills, Const. 186; Ellis V. .lames, 5 Ohio, 88; Bowman v. Hilton, 11 Ohio, 303; Fuller y. Bradley, 25 Pa. 120. (e) See Hunt v. Haskell, 24 Me. 339 ; Fox V. McGregor, 1 1 Barb. 41 . — A relin- quishment of possession by a carrier, or other person who has a lien on property, is an abandonment of the lien. By a transfer of the possession, the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner or other person liable for the charge. Bai- ley r. Quint, 22 Vt. 4G4 ; Forth i: Simp- son, 13 Q. B. 689; Bigelow i'. Heaton, 6 Hill (N. Y.), 43 ; s. c. 4 Deuio, 496. But semble, per Beardsleii. J., that the lien may be retained after delivery by the agree- ment of the parties. Id And it is so held in Sawyer t'. Fisher, 32 Me. 28. So if a carrier be induced to deliver goods to the consignee, by a false and fraudulent promise of the latter that he will pay the freight as soon as they are received, the delivery will not amount to a waiver of the carrier's lien, but he may disaffirm the delivery, and sue the consignee m replevin. Bigelow r. Heaton, supra, (f) Duf olt V. Gorman, 1 Minn. 301 . 1 The statement in the text may be doubted. Union Pac. Rv. Co. v. United States, 2 Wyo. 170. 2 Georgia R. R. &c. Co. v. Murrah, 85 Ga. 343. 218 CH. XI.] BAILMENT. * 208 All liens may be abandoned, or waived, or lost. And it has been held that a refusal by a bailee to give up the goods without giving his lien as a reason, is a waiver, (g) And a lien may he lost, as by a repeal of the statute creating it, without affecting the contract. (A) It has been questioned whether a common carrier, who carries goods of a party, but without his order or knowledge, can main- tain a lien for the freight. Generally the owner would have the right to refuse such service, and to require that the goods should be replaced, or he might have his action for intermeddling with his property. But if the facts were such as to * leave * 208 to the owner only the option between receiving his goods or rejecting them, must he either refuse the goods, or by accepting, give the carrier all the rights which he would have had if he had himself placed them in the hands of the carrier? If a thief in Albany steals one hundred barrels of flour from an owner who intends to send it to Boston, and the thief, for his own purposes, sends it by railroad to Boston, and there the owner's agent dis- covers the flour, and recognizes it by marks and numbers, can the owner or the owner's agent get possession of the flour, only by paying the freight, and so discharging the lien of the railroad ? If a service has been distinctly rendered to the owner, and he accepts that service and holds the benefit of it, on general princi- ples he must pay for it. Whether that rule would apply here would depend upon the peculiar circumstances of the case. But if it would, it does not follow that the carrier is entitled to his lien. He may have a rightful claim for freight, which he may otherwise enforce, but still have no lien for it on the goods trans- j)orted. If the lien of the common carrier be connected with his peculiar obligation to carry for all who offer, {i) and his peculiar responsibility as an insurer against everything but the act of God or the public enemy, these three, the lien, the obliga- tion, and the responsibility, existing only together, and in depend- ence on each other, then it would follow that he has no such lien, unless he was under a legal obligation to car.ry the goods for the thief. Such an obligation, in the present extension of our inter- nal interchange of property, and with the existing facilities of (f/) Dorrs i'. Morewood, 10 Barb. 183; by which a party, who was compelled to Hanna v. I'helps, 7 Ind. 21 ; Adams Ex. receive the goods of another, was also en- Co. V. Harris, 120 Ind 73. titled to retain them for his indemnity; (b) Lambard v. Pike, 33 Me. 141; thus carriers and innkeepers had, by tlie Bangor v. Coding, 35 Me. 73. common law, a lien on the grjods en- (/) "The doctrine of lien originated trusted to their charge." Smith, Merc, in certain principles of the common Liw, Law, 558. 219 * 209 THE LAW OP CONTRACTS. [book hi. locomotion, would make the common carrier the most efficient assistant of the thief. We cannot doubt that he may always- inquire into the title of one who offers him goods ; that he must so inquire if there be any facts which would excite suspicion in a man of ordinary intelligence and honesty ; and that if the person offering the goods is neither the owner nor his authorized agent, the carrier is under no obligation to receive and carry them. * 209 And then again it follows, * that if he carries goods for one who is neither the owner nor his agent, he carries what he was under no obligation to carry, and therefore cannot maintain his carrier's lien for the freight. This conclusion seems to us, on the whole, most comformable to the prevailing principles of law, and to the actual condition of the carrier's business in this country, and to the present weight of authority. (/') ^ (J) This question has been consider- ably discussed within the last few years. We have already seen that an innkeeper in such a case has a lien. See aiile, p. * 156, note (h). See also Fitch v. New- berry, 1 Dougl. (Mich.) 1, where the court says • " There is an obvious ground of distinction between the cases of cari-i/inrj goods by a common carrier, and the fur- nishing keeping for a horse by an inn- keeper. In the latter case it is equally for the benefit of the owner to have his horse fed by the innkeeper, in whose cus- tody he is placed, whether left by the thief, or by himself or agent ; in either case food is necessary for the preserva- tion of his horse, and the innkeeper con- fers a benefit upon the owner by feeding him. But can it be said that a carrier confers a benefit on the owner of goods by earrying them to a place where, per- haps, he never designed, and does not wish them to go ? Or as in this xase, is the owner of goods benefited by having them taken and transported by one trans- portation line, at their own price, when he had already hired and paid another to carry them at a less price ? " The first case in which the same question arose, in regard to a carrier, is that of the Exeter carrier, cited by Lord Holt, in York v. Grenaugh, 2 Ld. Raym. 866. There it appeared that one A stole goods, and de- livered them to the Exeter carrier to be carried to Exeter. The right owner find- ing the goods in the possession of the car- rier, demanded them of him, upon whieli the carrier refused to deliver, without being paid for the carriage. The owner brought trover, and it was held, that the carrier might justify detaining the goods against the right owner for the carriage, for when A brought them to him he was obliged to receive them and carry them ; and tlierefore, since the law compelled him to carry them, it would give him a rem- edy for the premium due for the carriage. The decision evidently met with the ap- proval of Lord llolt. On the authority of this case, the opinion seems generally to have prevailed in the proie.«siou and among te.xt-writers, that iunkee]>ers and common carriers stand upon the same ground in this respect. See King v. Rich- ards, 6 Wliart. 423. But several late cases seem to have cstablisiied the con- trary doctrine, in this country at least, in accordance with what we have stated in the text. The first ca.-^e, since that of the Exeter carrier, in which this (juestion has been directly considered, is Eitch v. New- berry, 1 Dougl (Mich.) 1, already cited. In that case, the plaintiffs, by their agents, shipped goods at Port Kent, on Lake Champlain, consigned to themselves at Marshall, Michigan, care of H. C. & Co., Detroit, by the New York and Michigan line, who were common carriers, and with whom they had previously contracted for the transportation of the goods to Detroit, 1 A carrier receiving goods from a tortious holder has no lien against the owner. Vaughan v. Providence, &c. R. R. Co. 13 R. I. 578 ; but where the carrier has received the goods from an agent whom the owner has clothed with apparent authority to deal with the goods, the carrier has a lien. See to this effect, Patten v. Union Pacific Rv. Co. 29 Fed. Rep. 590; Denver, &c. Ry. Co. v. Hill, 13 Col. 35 ; Whitnev v. Beckford, 105 Mass. 267 ; Crossan v. New York, &c. R. R. Co. 149 Mass. 196, 199; Vaughan v. Providence, &c. R. R. Co. 13 R. I 578. 220 CH. XI.] BAILMENT. * It is settled that when the carrier cannot find the con- signee, or learns that he is a swindler, and would cheat *210 *210 and paid the freight in advance. During their transit, and before they reached Buffalo, the goods came into the posses- sion of carriers doing business under the name of the Merchants Line, without the knowledge or assent of the plaintiffs, and were by them transported to Detroit, con- signed by H. P. & Co. of Buffalo to the care of the defendants, and delivered to the defendants, who were personally igno- rant of the manner in which they came into the possession of the Merchants Line, and of the contract of the plaintiffs with the New York and Michigan line, although they, and also H. P. & Co., were agents for and part owners in the Merchants Line. The defendants being warehousemen and forwarders, received the goods and ad- vanced the freight upon them from Troy, N. Y., to Detroit. On demand of the goods by the plaintiffs, the defendants refused to deliver them until the freight advanced by them, and their charges for receiving and storing the goods wore paid, claiming a lien on the goods for such freight and charges. The plaintiffs there- upon brought replevin ; and the court, after much consideration, held, that the plaintiffs were entitled to the pos.session of the goods without payment to the de- fendant of such freight and charges, and that the defendants had no lien for the same. This decision is supported by the case of Van Buskirk v. Purrington, 2 Hall, 56 L There property was sold on a condition, with which the buyer failed to comply, and sliipped the goods on board the defendant's vessel. On the defend- ant's refusal to deliver the goods to the owner, he brought trover, and was allowed to recover the value, although the defend- ant insisted on his right of lien for the freight. See also Collman v. Collins, 2 Hall, 569. The same point arose directly in the case of Robinson v. Baker, 5 Cush. 137, in which Fletcher, J., after reviewing and commenting upon the authorities which we have cited, says : " Thus the ca.se stands upon direct and express au- thorities. How does it stand upon general principles ? In the case of Saltus v. Ever- ett, 20 Wend. 267, 275, it is said : ' The universal and fundamental principle of our law of personal property is, that no man can be divested of his property with- out his consent, and, consequently, that even the honest purchaser under a defec- tive title cannot hold against the true pro- prietor.' There is no case tr> be found, or any reason or analogy anywhere sug- gested in the books, which would go to show that the real owner was concluded, by a bill of lading not given by himself, but by some third person, erroneously or fraudulently. If tiie owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has only a temporary right to its use, by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow and reclaim it in the possession of any person, iiow- ever innocent. L'pon this settled and universal principle, that no man's prop- erty can be taken frouj him without his consent, express or implied, the books are full of cases, many of them hard and dis- tressing cases, where honest and innocent persons have purchased goods of others, apparently the owners, and often with strong evidence of ownership, but who yet were not the owners, and the pur- chasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distress- ing cases of advances made honestly and fairly by auctioneers and commission mer- chants, upon a pledge of goods by persons apparently having the right to pledge, but who in fact had not any such right, and the pledgees have been subjected to the loss of them by the claim of the right- ful owner. These are hazards to which persons in business are continually ex- posed by the operation of this universal principle, that a man's property cannot be taken from him without his consent. Why should the carrier be exempt from the operation of this universal principle ? Why should not the principle of cavea. emptor' apply to him ? The reason, and the only reason given, is, that he is obliged to receive goods to carry, and should therefore have a right to detain the goods for his pay. But he is not bound to re- ceive goods from a wrong-doer. He is bound only to receive goods from one who may rightfully deliver them to him, and he can look to the title, as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods, unless the freight or pay for the carriage is first paid to him ; and he may in all cases secure the payment of the carriage in advance. In the case of King V. Richards, 6 Whart. 418, it w:is decided that a carrier may defend himself from a claim for goods by the person who de- livered them to him, on the ground that the bailor was not the true owner, and 221 ♦ 211 THE LAW OF CONTRACTS. [book III. the consignor, he is bound to protect the owner and consignor, and for that purpose to hold the goods, or store them in some proper way for his use. (k) And so he is if the consignee *211 refuses to receive * the goods. (/) He would be bound to give notice to the consignor only, if that, under the cir- cumstances, would be reasonable care; and this, it would seem, is a question for the jury, (m) The carrier may also be a factor to sell for the owner ; and this by express instructions, or by usage of trade (n) When this is the case, after the carrier has transported the goods, and is en- gaged in his duty as a factor for sales, he is responsible only as a factor, or for his negligence or default, and not as a carrier. But after he has sold the property, and has received the price which he is to return to the owner, his responsibility as a carrier revives, and in that capacity he is liable for any loss of the money, (o) therefore not entitled to the goods. The common carrier is responsible for the wrong delivery of goods, though inno- cently done, upon a forged order. Why should not his obligation to receive goods exempt him from the necessity of deter- mining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the persons from whom he receives the goods." (k) Stevenson i\ Hart, 4 Bing. 476 ; Duff I). Budd, 3 Br. & B. 177. (/) Crouch V. G. W. R. Co. 2 Hurl. & N. 491. (m) Hudson v. Baxendale, 2 Hurl. & N. 575. (n) Stone v. Waitt, 31 Me. 409 ; Wil- liams V. Nichols, 13 Wend. 58 ; The Waldo, Daveis, 161. (o) Thus, where the owners of a steam- boat, which ran upon the Ohio River, took produce to be carried and sold by them for a certain freight, and were bringing back in the same vessel the money which they obtained on the sale of the produce, when the vessel and the money were acci- dentally consumed by fire ; it was held, that under the usage of trade in the western waters, they were acting as com- mon carriers in going, as factors in selling the produce, and as common car- riers in bringing back the money, and were liable for its loss, notwithstanding the accident. Harrington v. McShane, 2 Watts, 443. And per Sergeant, J. : "The question of the defendants' re- sponsibility in the present case depends on the character in which they held this money when the loss occurred. If they 222 were merely factors they are not responsi- ble ; if they were carriers the reverse must be the case. Had the flour been lost in the descending voyage by a similar acci- dent, there could be no doubt whatever of the defendants' liability ; they were cer- tainly transporting it in the character of carriers. On their arrival at the port of destination, and landing the flour there, this character ceased, and the duty of fac- tor commenced. When the flour was sold, and the specific money, the proceeds of sale, separated from other moneys in the defendants' hands, and set apart for the plaintiffs, was on its return to them by the same boat, the character of carrier re- attached. The return of the proceeds by the same vessel is within the scope of the receipt and of the usage of trade, as proved, and the freight paid may be deemed to have been fixed with a view to the whole course of the trade, embracing a reward for all the duties of transporta- tion, sale, and return. H the defendants, instead of bringing the money home in their own vessel, had sent it on freight by another, there would have been to the plaintiffs the responsibility of a carrier, and there ought not to be less if they chose to bring it themselves. If they had mixed the money with their own, they would have no excuse for non-payment. The defendants can be relieved from re- sponsibility only by holding that the char- acter of carrier never existed between these parties at all, or that if it existed, on the descending voyage, it ceased at its termination, and that of factor began and continued during the ascending voyage But if the defendants bring back in the CH. XI.] BAILMENT. * 212 * The common principles of agency apply to the carrier ; * 212 he is liable for the acts of those whom he employs and authorizes to act for him. But a party may contract with the servant alone, and then can hold him only, (^j) SECTION XIII. OF THE RESPONSIBILITY OF THE CARRIER BEYOXD HIS OWN ROUTE, The question, when the carrier is liable beyond his own route, has been recently much considered, and is not yet quite settled. If carriers for different routes, which connect together, associate for the purpose of carrying parcels through the whole line, and share the profits, they are undoubtedly partners, and each is lia- ble in solido for the loss or injury of goods which he undertakes same vessel other property, the proceeds of the shipment, whether specific money or goods, they do so as carriers, and not merely as factors." So where a master of a vessel, employed in the transportation of goods between the cities of Albany and New York, received on board a quantity of flour to be carried to New York, and there sold in the usual course of such business for the ordinary freight ; and the flour was sold by the master at New York for cash, and while the vessel was lying at the dock, the cabin was broken open and the money stolen out of the master's trunk, while he and the crew were absent ; it was held, that the owners of the vessel were answerable for the money to the shippers of the flour, though no commissions, or a distinct compensation, beyond the freight, were allowed for the sale of the goods and bringing back the money, such being the duty of the master, in the usual course of the employment, where no special in- structions were given. Kemp v. Cough- try, 11 Johns. 107. And, per curiam: " Had the property which was put on board this vessel for transportation been stolen before it was converted into monev, there could be no doubt the defendants would have been responsible But the character of common carrier does not cease upon the sale of the property. Ac- cording to the testimony in this case, the .sale of the goods and return of the pro- ceeds to the owner is a part of the duty attached to the employment, where no special instructions are given. The con- tract between the parties is entire, and is not fulfilled on the part of the carrier, uu til he has complied with his orders, or has accounted with the owner for the pro- ceeds, or brought himself within one of the excepted cases. The sale in this case was actually made, and the money re- ceived ; and had it been invested in other property, to be transported from New York to Albany, there would be no ques- tion but the character of common carrier would have continued. It can make no difference whether the return cargo is in money or goods. A person may be a common carrier of money, as well as of other property. Carth. 485. Although no commission or distinct compensation was to be received upon the money, yet according to the evidence, it appears to be a part of the duty attached to the em- ployment, and in the usual and ordinary course of the business, to bring back the money when the cargo is sold for cash. The freight of the cargo is the compensa- tion for the whole ; it is one entire con- cern. And the suit may be brought against the owners of the vessel. The master is considered their agent or ser- vant, and they are responsible for the faithful discharge of his trust " See also, Taylor v. Wells, 3 AVatts, 65 ; Emery v. Hersey, 4 Greeul. 407. — It should be ob- served, however, that Mr. Justice Story has made some strictures upon the case of Kemp V. Coughtry, for which see Story on Bailm, §§ 547, 548. {l>) See ante, p. * 181, note (a). 223 * 213 THE LAW OF CONTRACTS. [BOOK III. to carry, in whatever part of the line it may have happened, (q) So if they connect ten^porarily, as for an excursion party. (5^)1 And a railroad thus connected with other railroads is a common carrier as to passengers beyond its own limits, and is bound to re- ceive any who offer, {qr) There can be no doubt that a carrier may agree to carry beyond his own regular route ; and then, however the agreement be evidenced, the carrier is liable to the point of ultimate destination, (g-s) If the carriers be not distinctly *213 associated, but *are so far connected that they under- take, or authorize the public to suppose that they undertake, for the whole line, they should be responsible' as before, (r) But undoubtedly a carrier may receive a parcel to carry as far as he goes, and then to send it further by another carrier. And where this is clearly the case, his responsibilities as carrier and as for- warder are entirely distinct. (5) The difficulty is in determining (q) Thus, where A and B were jointly goods from the citv of New York to Og- interested in the profits of a common densburg on the river St. Lawrence, and stage-wagon, but, by a private agreement the goods were lost on Lake Ontario; it between themselves, each undertook the was held, that all the defendants were an- conducting and management of the wagon, swerable for the loss, although some of and his own drivers and horses, for speci- them had no interest in the vessel navi- fied distances ; it was held, notwithstand- gating the lake, in which the goods were ing this private agreement, that they were shipped. Fairchild v. Slocum, 19 ^Yend. jointlv responsible to third persons for the 329 ; s. c. 7 Hill (X. Y.), 292; Cincinnati, negligence of their drivers throughout tlie &c. R. R. Co. v. Spratt, 2 Duvall, 41. whole distance. Waland ;-. Elkins, 1 Stark. (qcj) Najac v. Boston, &c. R. R. Co. 7 272 ; s. C. nom. ^Yeyland r. Elkins, Holt, Allen, 329. 227. See also Fromont v. Coupland, 2 {qr) Wheeler v. San Francisco R. R. Bing. 170; Helsbv v. Hears, 5 B. & C. Co. 31 Cal. 46. 504; Collins f. B."& E. R. Co. 1 Hurl. & (qs) Morse v. Brainard, 41 Vt. 550; N. 517; Wilby v. W. C. R. Co. 2 Hurl. & Mosher v. Southern Express Co. 38 Ga. N. 703. So where an association was 37 ; Tuckerman v. Stevens, &c. Trauspor- formed between shippers on Lake Onta- tation Co. 3 Vroom, 320 ; Southern Express rio, and the owners of canal boats on the Co. c. Shea, 38 Ga. 519. Erie canal, for the transportation of goods (r) Weed v. The S. & S. Railroad Co. and merchandise between the citv of New 19 Wend. 534; Peet v. Chicago, &c. R. R. York and the ports and places on Lake Co. 20 Wis. 594. Ontario and the River St. Lawrence, and a (s) Garside v. Trent & Mersey Naviga- contract was entered into by the agent of tion Co. 4 T. R. 581 ; Ackley r. Kellogg, 8 such association, for the transportation of Cowen, 223 ; Pennsylvania, &c. R. R. Co. 1 The tendency of late cases is against regarding a sharing in profits as conclusive evidence of partnership (see chapter on Partnership) ; and this tendency may be noticed in cases relating to connecting carriers. It is generally admitted that they may contract jointly, if not form a partnership. Thus where eight railroads formed "an association called the Erie and North Shore Despatch Fast Freight Line, and transacted the business of transportation between Bo.ston and Chicago under that name, it was held that an action was properly brought against all the companies jointly. Block v. Fitchburg R. R. Co. 139 ^Nlass. 308. And a joint contract liv incorporated carriers is not ultm vires, Swift u. Pacific Mail S. S. Co. 106 N. Y. 206. " But tlie mere facts that a fixed price has been received for the entire distance, and that this price is divided between the companies by agreement between themselves are not sufficient to prove joint liability or a partnership. See Insurance Co. v. Railroad Co. 104 U. S. 146; Montgomery, &c. R. R. Co. v. Moore, 51 Ala. 394 ; Peterson v. Chicago. &c. Rv. Co. 80 la. 92 ; Gass v. New York, &c. R. R. Co. 99 Mass. 220 , Gulf, &c. Rv. Co. r. Baird. 75 Tex. 256. 224 CH XI.] BAILMENT. 213 between these cases ; the weight of authority, until recently, seemed to be in favor of the rule, that a carrier who iaiowingly received a parcel directed or consigned to any particular place, undertook to carry it there himself, unless he made known a different purpose and undertaking to the owner, (ss) This is still the English doctrine, and in conformity therewith it has been decided that the owner has no contract with the second carrier, and cannot recover of him for damage done on his part of the route, {t) But the American decisions have importantly qualified, if they have not overthrown, the English authorities. The pre- vailing rule in this country may now be said to cast upon the carrier no responsibility as a carrier beyond his own route (requiring, of course, due care in forwarding the parcel) unless the usage of the business, or of the carrier, or his conduct or language, shows that he takes the parcel, as carrier, for the whole route, (u) And his receipt of payment for the whole route. V. Schwarzenberger, 45 Pa. 208 ; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189. (ss) So held in Illinois, &c. R. R. Co. v. Johnson, .34 111. 389. (t) Co.xon V. Great Western Railway Co. 5 H. & N. 274. See also directors of B. & E. Railway Co. r Collins, 5 H. & N. 969, where the House of Lords sustain this doctrine. (u) The leading English case upon this point is Muschamp v. The L. & P. Junc- tion Railway Co. 8 M. & W. 421. The defendants were the proprietors of the Lancaster and Preston Junction Railway, and carried on business on their line be- tween Lancaster and Preston, as common carriers. At Preston, the defendants' line joined that of the North Union Rail- way. The plaintiff, a stone mason, living at Lancaster, had gone into Derbyshire in search of work, leaving his box of tools to be sent after him. His mother according- ly took the box to the railway station at Lancaster, directed to the plaintiff at a place beyond Preston, in Derbyshire, and requested the clerk at the station to book it. She offered to pay the carriage in ad- vance for the whole distance, but was told by the clerk that it had better be paid at the place of delivery. It appeared that the box arrived safely at Preston, but was lost after it was despatched from thence by the North Union Railway. The plain- tiff brought this action to recover for the loss of the box. Rolfe, B., before whom the case was tried, stated to the jury, in summing up, that where a common car- rier takes into his care a parc!el directed to a particular place, and does not, by posi- tive agreement, limit his responsibility to a part only of the distance, that is prima facie evidence of an undertaking to carry the parcel to the place to which it is di- rected ; and that the same rule applied, although that place were beyond the lim- its within which he, in general, professed to carry on his trade of a carrier. On a motion for a new trial, the Court of Ex- chequer held the instruction to be correct. Lord Abinger said : " It is admitted by the defendants' counsel, that the defendants contract to do something more with the parcel than merely to carry it to Preston ; they say the engagement is to carry it to Preston and there to deliver it to an agent, who is to carry it further, who is after- wards to be replaced by another, and so on until the end of the journey. Now that is a very elaborate kind of contract ; it is in substance giving to the carriers a gen- eral power, along the whole line of route, to make at their pleasure fresh contracts, which shall be binding upon the principal who employed them. But if, as it is ad- mitted on both sides ; it is clear that some- thing more was meant to be done by the defendants than carrying as far as Pres- ton, is it not for the jury to say what is the contract, and hoic much more was un- dertaken to be done by them ? Now, it certainly might be true that tlie contract between these parties was such as that suggested by the counsel for the defend- ants ; but other views of the case may be suggested quite as probable ; such, for in- stance, as that these railway companies, though separate in themselves, are in the 1.3 225 214 THE LAW OF CONTRACTS. [book III. 214 * would be evidence going far to prove such under- taking, {v) ^ Hence the purchase of what is called a habit, for their own advantage, of making contracts, of vhich this was one, to con- vey goods along the whole line to the ultimate tcriniuns, each of them being agents of the other to carry them forward, and each receiving its share of the profits from the last. The fact that, according to the agreement proved, the carriage was to be paid at the end of the journey, rather confirms the notion that the per- sons who were to carry the goods from Preston to their final destination were under the control of the defendants, who consequently exercised some influence and agency beyond the immediate terminus of their own railway. Is it not, then, a question for the jury to say what the na- ture of this contract was ; and is it not as reasonable an inference for them to draw that the whole was one contract, as the contrary ' 1 hardly think they would be likely to infer so elaborate a contract as that which the defendants' counsel sug- gest, namely, that as the line of the de- fendants' railway terminates at Preston, it is to be presumed that the plaintiff, who intrusted the goods to them, made it part of his bargain that they should em- ploy for him a fresh agent, both at that place and at every suljsequent change of railway or conveyance, and on each shift- ing of the goods give such a document to the new agent as should render him re- sponsible. Suppose the owner of goods sent under such circumstances, when he finds they do not come to hand, comes to the railway office and makes a complaint, then, if th^ defendants' argument in this case be well founded, unless the railway company refuse to supply him with the name of the new agent, they break their contract. It is true that, practically, it might make no great difference to the proprietor of the goods which was the real (*•) See the preceding note ; and es- Vt. 186, 209. See also Williams v. Yan- pecially Farmers & Mechanics Bank v. derbilt, 28 X. Y. 217, and Lock Company Champlain Transportation Company, 23 v. W. & N. R. R. 48 X. H. 339. 1 It is generally admitted in the cases that a receiving carrier may incur liability for injury or loss of goods occurring beyond its own line, and on the other hand that a carrier may by contract simply agree to deliver to another carrier for further carriage, and that having done that it is discharged. But in the ordinary case no express con- tract is made, and the question is, what conclusion is to be drawn from the fact that goods have been accepted which are directed beyond the terminus of the receiving carrier. Many States, following the English rule, hold that on such facts alone the receiving carrier is responsible for the whole transit, especially if it was paid freight charges for the whole distance. Louisville, &c. R. R. Co. i-. Mever, 78 Ala. 597 ; Ben- nett V. Filvaw, 1 Fla. 403 ; Pereira v. Central Pac. R. R. Co. '66 Cal. 92 ; Atlanta, &c. R. R. Co. V. Texas Grate Co. 81 Ga. 602 ; Illinois Central R. R. Co. v. Frankeu- berg, 54 III. 88; Wabash, &c. Rv. Co. v. Jaggerraan. 115 111. 407; Mulligan i: Illi- nois Central Ry. Co. 36 la. 181 , Beard v. St. Louis, &c. Ry. Co. 79 la. 527 ; Atchison, &c. R. R. Co. 1-. Roach, 35 Kan. 740; Nashua Lock Co."?'. Worcester R. R. Co. 48 N. H. 339 ; (cf. Gray v. Jackson, 51 N. H. 9) ; Baltimore, &c. R. K. Co. i-. Campbell, 36 Ohio St. 647 ; Louisville & Xa,shville Ry. Co. v. Weaver, 9 Lea, 38. In other States, however, the rule of Muschamp's case is rejected, and the receiving carrier is held liable only for defaults and damage on its own line unle.ss it has expressly assumed greater liability. Mvrick v. Railroad Co. 107 U. S. 102; Converse v. Nor- wich, &c. R. R. Co. 33 Conn.' 166; Savannah, &c. Rv. Co. v. Harris, 26 Fla. 148; Plantation No. 4 v. Hall, 61 Me. 517 ; Baltimore, &c. R. R. Co. v. Schumaker, 29 Md. 168. 176, Burroughs r. X'orwich, &c. R. R. Co. 100 ]Mass. 26. (See al.*o Block v. Fitchburg R. R. Co. 139 Mass. 308.) Rickerson, &c. Co. v Grand Rapids, &.c. R. R. Co 67 Mich. 110 ; Black v. Ashley, 80 Mich. 90 ; Irish v. Milwaukee, &c. R. R. Co. 19 Minn. 376; Crawford v. Southe'rn R. R. Assoc. 51 Miss. 222 ; Grover, &c. Co. v. Missouri Pac. Ry. Co 70 Mo. 672 ; Crouch v. Louisville, &c. R. R. Co. 42 Mo. App. 248, Coudict r. Grand Trunk R. R. Co. 54 N. Y. 500, 502; Knott v. Raleigh, &c. R. R. Co. 98 X. C. 73 ; Hunter r. Southern Pac. Rv. Co. 76 Tex. 195 ; Hadd v. U. 8. & Can. Ex. Co. 52 Vt. 335 ; McConnell v. Norfolk, &c. R. R. Co 86 Va. 248. See also Piedmont Mfg. Co. v. Columbia, &c. R. R. Co. 19 S. C. 353 , Hansen v. Flint, &c. R. R. Co. 73 Wis. 346. 226 CH. XI.] BAILMENT. 218 through ticket of an * agent authorized by sundry carriers * 215 to sell such a ticket, and the price of which is shared in certain proportions by all of them, * would estop the car- * 216 riers from denying a partnership for the whole line : and at the same time would perhaps permit the * plaintiff, if *217 his person or goods were injured on any part of the route, to sue the carrier, on whose route the injury took place, * separately, (w) But when a carrier is in possession of *21S contract, if their uot immediately furnish- ing him witii a name would entitle him to bring an action against them. But the question is, Why should the jury infer one of these contracts rather than the other 1 Which of the two is the most natural, the most usual, the most probable ? Besides, the carriage-money being in this case one undivided sum, rather supports the infer- ence that although these carriers carry only a certain distance with their own vehicles, they make subordinate contracts with the other carriers, and are partners inter se as to the carriage-money ; a fact of which the owner of the goods could know notiiing, as he only pays the one entire sum at the end of the journey, which they afterwards divide as they please. Not only, therefore, is there some evidence of this being the nature of the contract, but it is the most likely contract under the circumstances ; for it is admitted that the defendants undertook to do more than simply to carry the goods from Lancaster to Preston. The whole matter is there- fore a question iov the jury, to determine what the contract was, on the evidence before them. ... In cases like the pres- ent, particular circumstances might no doubt be adduced to rebut the inference which prima facie must be made of the defendants having undertaken to carry the goods the whole way. The taking charge of the parcel is uot put as conclusive evidence of the contract sued on by the plaintiff ; it is only primd facie evidence of it ; and it is useful and reasonable for the benefit of the public that it should be so considered. It is l)etter that those who undertake the carriage of parcels for their mutual benefit, should arrange matters of this kind i)iter se, and should be taken each to have made the others their agent to carry forward." This case is fully ap- proved and confirmed bv the case of Wat- son V. The A. N. & B. Railway Co. 3 E. L. & E. 497. And see Fowles v. Great West- ern Ry. Co. 7 Ex. 699 ; Scotthorn ;•. South Staffordshire Ry. Co. 8 Ex. 341 ; Walker V. York, &c. Ry. Co. 2 E. & B. 750 ; Crouch V. Great W^estern Ry. Co. 2 H. & X. 491. The same doctrine was declared bv the Supreme Court of New York, in the case of St. John V. Van Santvoord, 25 Wend. 660. But their judgment in that case was reversed bv the Court for the Correction of Errors. See 6 Hill ( N. Y. ), 1 57. The Eng- lish rule is said also to have been adopted in Bennett v. Filyaw, I Fla. 403. — The English rule is condemned in very strong terms by ]Mr. Justice Redjield, in the case of Farmers & Mechanics Bank v. Cham- plain Transportation Co. 23 Vt. 186, 209. And iu Xutting v. Conn. River R. R. Co. 1 Gray, 502, it was held, that a railroad corporation, receiving goods for transjjor- tation to a place situated beyond the line of their road, on another railroad, which connects with theirs, but with the propri- etors of which they have no connection in business, and taking pay for the transpor- tation over their own road only, is not liable, in the absence of any special con- tract, for the loss of the goods, after their delivery to the proprietors of the other railroad. In the case of Hood v. New York & New Haven Railroad Co. 22 Conn. 1 ; s. c. id. 502, it was held, that the cor- porate power of a railroad did not extend to a contract for the carriage of a person by staging beyond their own length of road, and that the fact that they had been for a long time in the hat)it of making and e.xecuting such contracts, could not estop them from .setting up this lack of power when sued by a person to whom they had given a ticket for conveyance beyond their line of route, and who was injured on such passage. See also Elmore V. Naugatuck R. R. Co. 23 Conn. 457 ; N. R. R. Co. V. Waterbury Button Co. 24 Conn. 468. In this last case, the court held, that a railroad company rmdd not contract to carry beyond its own limits. ■But see Xoves v. R. & B. R. R. Co. 1 Williams, 110; Hart v. R. & S. R. R. Co. 4 Seld. 37 ; Kyle v. L. R. R. Co. 10 Rich. L. 382. (w) Where a plaintiff had bought in Washington a through ticket for Cincin- nati, and brought an action for loss of baggage against the Little Miami Rail- road Company, alleging that the defend- ants had united with four other companies 227 * 218 THE LAW OF CONTRACTS. [BOOK III. goods to be delivered to a subsequent carrier for transporta- tion, his liability as insurer will continue, even though the second carrier, after notice and request to receive the goods, has neglected for an unreasonable time to do so. In order to exoner- ate himself, the first carrier must in some way clearly indicate his renunciation of the relation of carrier, {x) ^ If the owner proves the delivery of the goods to the first carrier, in good order, and the delivery of them to the second carrier, this last will be held, unless he proves that they were not injured while in his hands, or were not in good condition when he received them, (xx) A railroad is certainly liable for losses to persons or goods in the cars of other railroads which it receives and transports on its own. (y) And it has been held in Massachusetts, that a railroad corporation, chartered by the laws of that Commonwealth, and leasing a branch of their railroad to a railroad corporation out of the State, is still liable as a common carrier for goods lost on that branch. (3) In New York, w^here one railroad company allowed another railroad company to run its cars over the road of the first, and a passenger being injured brought an action against both companies, the joinder was sustained, (a) How far the carrier can lessen his responsibility by his own acts, and especially by notices defining or entirely withdrawing his liability, has been much disputed. As the greater part of the cases in which this question occurs, or is likely to occur, relate to the property of passengers, we will consider this question under the next topic, (aa) in a partnership, for the purpose of fur- Co. 74 Mo. 159. But see Coxon i\ Great iiishiug through-tickets, and had a com- Western Railway Co. 5 H. & N. 274. mon agent in Washington; the action {z) Laugley v. B. & M. R. R. Co. 10 was sustained by the Superior Court in Gray, 103. Cincinnati, 5/je?icer, J., giving a very able {«) Colgrove r. N. Y. & H. R. R. Co. and elaborate opinion, 7 Am. Law Reg. 6 Duer, 382. 427. {(Id) For recent cases as to notices by (x) Goold V. Chapin, 20 N. Y. 259 ; carriers of goods, see Judson v. Western Hooper v. Chicago, &c. R. Co. 27 ^Vis. R. R. Co. 6 Allen, 486 : Steele v. Towns- 81. end, 1 Ala. 1 ; Thaver v. St. Louis, &c. {xx) Smith V. N. Y., &c. R. R. Co. 43 R. R. Co. 22 Ind. 26"; Falvey v. Northern Barb. 225. Co. 15 Wis. 129; Havs v.' Kennedv, 3 (//) Schopman v. B. & W. R. R. Co. 9 Grant, 351 ; York Co." v. Central R." R. Cush. 24 ; Halliday v. St. Louis, &c. Ry. Co. 3 Wallace, 100. 1 If the next carrier is not ready to receive the goods, and the first carrier stores them in a warehouse, his liability will not be changed to that of warehouseman. 111. Cent. Railroad v. Mitchell, 68 111. 471, citing Michigan, &c. R. Co. v. Mineral Springs Manuf. Co. 16 Wall. 318. — K. o & fa 228 CH. XI.] BAILMENT. 219 * SECTION XTV. *219 COMMON CARKIERS OF PASSENGERS. The carrier of passengers is not liable for them in the same way in which the carrier of goods is liable. The rule, the exception, and the limitation and reason of the exception, are now all per- fectly well settled. By the general rule, the liability of the common carrier does not depend upon his negligence, because he insures the owners of all the goods he carries against all loss or injury that does not come from the act of God or the public enemy. The exception to this, in the case of the carrier of pas- sengers, is, that he is liable only where the injury has arisen from his own negligence ; and the limitation to this exception is, that he is thus liable for injuries resulting from the slightest negli- gence on his part, (b) If the carrier cannot guard against a certain {b) Derwort v. Loomer, 21 Conn. 246; Fuller V. Naugatuck Railroad Co. id. 558 ; Caldwell v. Murphy, 1 Duer, 233 ; Hege- man v. Western R. R. Co. 16 Barb. 353; Nashville & C. R. R. Co. v. Messino, 1 Sneed, 220. This was very authorita- tively declared by Lord Chief Justice El/ re, in the case of Astou v. Heavan, 2 Esp. 533. That was an action against the defendants, as proprietors of a stage- coach, to recover damages received by the plaintiff in consequence of the upset- ting of the defendants' coach. The de- fence relied upon was, that the coach was driving at a regular pace on the Hammersmith road, but that on the side was a pump of considerable height, from whence the water was falling into a tub below ; that the sun shone brightly, and being reflected strongly from the water, the horses had taken fright and run against the bank at the opposite side, where the coach was overset. And per Eifre, C. .J. : " This action is founded en- tirely in negligence. It has been said by the counsel for the plaintiff, that wher- ever a case happens, even where there has been no negligence, he would take the opinion of the court whether defend- ants circumstanced as the present, that is coach owners, should not be liable in all cases, except where the injury hap- pens from the act of God or the king's enemies. I am oi opinion, the cases of the loss of goods by carriers, and the present, are totally unlike. When that case does occur, he will be told that car- riers of goods are liable by the custom, to guard again.st frauds they ' might be tempted to commit, by taking goods in- trusted to them to carry, and the a pretend- ing they had lost or been robbed of them ; and because they can protect themselves : but there is no such rule in the case of the carriage of the persons. This action stands on the ground of negligence only." To the same effect is the ruling of Sir James Mansjield, in Christie v. Griggs, 2 Camp. 79. That was an action of as- sumpsit against the defendant as owner of the Blackwall stage, on which the plaintiff, a pilot, was travelling to Lon- don, when it broke down, and he was greatly bruised. The first count imputed the accident to the negligence of the driver ; the second, to the insufficiency of the axle-tree of the carriage. The de- fendant introduced evidence to show that the axle-tree had been examined a few days before it broke, without any flaw being discovered in it ; and that, when the accident happened, the coach- man, a very skilful driver, was driving in the usual track, and at a moderate pace. And, per Mansjield, C. .1., in summing up to the jury : " As the driver has been cleared of everything like negligence, the question for the jury will l)e as to the .suf- ficiency of the coach. If the axle-tree was sound, as far as human eye could discover, the defendant is not liable. There is a difference between a contract to carry 229 * 219 THE LAW OF CONTRACTS. [book III. danger, it is then his duty to warn the passengers of it, and if he fails to do this he is liable for injury to them. But if he gives goods and a coutract to carry passen- gers. For the goods the carrier is an- swerable at all events. But he does not warrant the safety of passengers. His undertaking as to' them goes no further than this, that as far as human care and foresight can go, he will provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidental, the plaintiff has no remedy for the misfortune he has encountered." See also Harris v. Costar, 1 C. & P. 636 ; White V. Boulton, Peake, Cas. 81 ; Crofts V. Waterhouse, 3 Bing. 319. Such also has been repeatedly declared to be the law in this country. Thus, in the case of Derwort v. Loomer, 21 Conn. 246, one of the latest cases on this subject, Ells- worth, J., says : " The rule of law on this subject is fully established in our own courts and elsewhere, and is not contro- verted by the learned counsel in this case. The principle is, that in the case of com- mon carriers of passengers, the highest degree of care which a reasonable man would use, is required. This rule ap- plies alike to the character of the vehi- cle, the horses and harness, the skill and sobriety of the driver, and to the man- ner of conducting the stage under every emergency or difficulty. The driver must, of course, he attentive and watchful. He has, for the time being, committed to his trust the safety and lives of people, old and young, women and children, locked up as it were in the coach or rail-car, ig- norant, helpless, and having no eyes or ears or power to guard against dangers, and who look to him for safety in their transportation. The contract to carry passengers differs, it is true, from a con- tract to carry freight ; but in both cases the rule is rigorous and imperative ; in the latter, the carrier is answerable at all events, except for the act of God and the public enemy ; while in the former, the most perfect care of prudent and cautious men is demanded and required. The .stage owner does not warrant the safety of pas- sengers ; yet his undertaking and lia- bility as to them go to this extent, that he, or his agent, shall possess competent skill, and that, as far as human foresight and care can reasonably go, he will trans- port them safely. He is not liable for injuries happening to passengers, from sheer accident or misfortune, where there is no negligence or fault, and where no want of caution, foresight, or judgment, would prevent the injury. But he is lia- ble for the smallest uegHgence in himself 230 or his driver." See also Fuller v. The Naugatuck Railroad Co. 21 Conn. 557 ; Hall I". Connecticut River Steamboat Co. 13 Conn. 319 ; McKiuney v. Neil, 1 McLean, 540 ; Maury v. Talmadge, 2 id. 157; Parish r. Reigle, 11 Gratt. 697: Stokes V. Saltonstall, 13 Pet. 181 ; Stock- ton V. Frev, 4 Gill, 406 ; Camden & Am- boy R. R."Co. v. Burke, 13 Wend. 626; Hollister v. Nowlen, 19 Wend. 236; Hege- mann v. W. R. R. Co. 3 Kern. 9 ; Curtis V. R. & S. R. R. Co. 20 Barb. 282 ; Frink V. Potter, 17 111. 406 ; Martin v. G. X. R. Co. 30 E. L. & E. 473; s. c. 16 C. B. 179; Willis V. L. L R. R. Co. 32 Barb. 398; Pennsylvania Co. i-. Roy, 102 U. S. 451 ; Raymond v. Burlington, &c. Ry. Co. 65 la. 152; Dougherty /•. Missouri R. R. Co. 97 I\Io. 647 ; Palmer v, Delaw are & Hud- son Canal Co. 120 N. Y. 170. — In the case of Boyce v. Anderson, 2 Pet. 150, the question arose, whether the rule ap- plicable to the carriage of goods, or that applicable to the carriage of passengers should be applied to the case of negro slaves. That was an action brought by the owner of slaves against the proprie- tor of a steamboat on the Mississippi, to recover damages for the loss of the slaves, alleged to have been caused by the negligence or mismanagement of the captain and commandant of the boat. The case came up on error from the Cir- cuit Court for the District of Kentucky. The court below instructed the jury, among other things, " that the doctrine of common carriers did not apply to the case of carrying intelligent beings, such as negroes ; " and the Supreme Court held this instruction to be correct. The learned judge [^larshall. C. J.,] in ])art of his opin- ion, intimated that the carrier of passen- gers was bound only to ordinary diligence ; but whatever he said to that effect cannot be considered as law, and was virtually overruled in the subsequent case of Stokes V. Saltonstall, 13 Pet. 181, 192. See also, as to the liabilitv of a carrier of slaves, Clark V. McDonald, 4 McCord, 223 ; Wil- liams V. Taylor, 4 Port. (Ala.) 234. If any portion of a carrier's route is attended with peculiar danger, he is bound to give his passengers notice thereof. Thus, in Laing v. Colder, 8 Pa. 479, which was an action on the case for negligence, whereby the plaintiff's arm was broken Avhile he was travelling in the railroad car of the defendants, it appeared that the accident occurred while the car wa,^ pass- ing over a liridge, which was so narrow that the plaintiff s hand, lying outside of CH. XI.] BAILMENT. 220 this warning, a passenger who voluntarily encounters the danger cannot hold the carrier responsible, (hh) It is no defence to the * carrier, that the negligence was that of his agent * 220 (as of the conductor of a car) , or that it was wilful on the the car-window, was caught by the bridge, and his arm broken. The defejidauts gave evidence to show that, during the journey, warning had been given by tiieir agent to a pas.seuger named Long, of the danger of putting his feet or arms out of the win- dow, and that he sat so near the plaintiff, that the warnings must have been heard by the latter. They also proved tliat printed notices were put up in the cars warning passengers not to put their arms or heads outside the windows, and that, immediately before reaching the bridge, notice was given in a loud voice to passen- gers to keep their heads and arms inside the car. Upon this evidence, Eldred, V. J., instructed the jurv, " that a carrier of passengers was bound to furnish suitable conveyances, such as with due care and proper attention would carry passengers safely, unless interrupted by some acci- dent wliich no human wisdom could fore- see. That he must give notice of approach- ing danger, or of the dangerous places on the route, if some are more dangerous than others. This notice must be full and complete to all persons who travel, whether learned or unlearned. The slight- est negligence in any of these particulars makes him liable for all damages. 'J'hat in the present case the presumption was there had been negligence, and it was for the defendants to show they had done everything in their power to relieve them- selves, or that it resulted from the plain- tiff's negligence and folly. That a printed notice of the danger of passengers putting their hands out of the windows was not sufficient ; but if they had given the plain- tiff sufficient warning as they approached the bridge, this would discharge them." The case was carried up to the Supreme Court of Pennsylvania, and that court held the instru.tion to be correct. Bell, J., in delivering the judgment said : " The slightest neglect against which human prudence and foresight may guard, and by wliich hurt or loss is occasioned, will render them (common carriers) liable to answer in damages Nay, the mere hap- pening of an injurious accident raises prima facie a presumption of neglect, and throws upon the carrier tlie onus of show- ing it did not exist. Above all, if there be in any part of the road a particular passage more than ordinarily dangerous, or requiring superior circumspection on the part of a pas.senger, the conductor of the vehicle is bound to give due notice of it, and a failure to do so will make his principal responsible." See also Dudley v. Smith, 1 Camp. 167 ; Derwort v. Loomer, 21 Conn. 245 ; Maury v. Talmadge, 2 McLean, 157 ; Sales v. Western Stage Co. 4 Iowa, 547 ; Johnson v. Winona R. K. Co. 1 1 Min. 296. So, if through the de- fault of a coach-proprietor in neglecting to provide proper means of conveyance, a ])assenger be placed in so perilous a situation as to render it prudent for him to leap from the coach, whereby his leg is broken, the proprietor will be respon- sible in damages, although the coach was not actually overturned. Jones v. Boyce, 1 Stark. 493. This case was much con- sidered in Stokes v. Saltonstall, 13 I'et. 181, and the doctrine it contains fully confirmed. See also to the same effect, lugalls !'. Bills, 9 Met. 1 ; Eldridge r. Long Island Railroad Co. 1 Saudf. 87 ; Edwards V. Lord, 49 Me. 279 ; Alden v. ISIew York, &c. R. R. Co. 26 N. Y. 102 , Thayer /'. St. Louis, &c. R. R. Co. 22 Ind. 26 ; Sears V. Dennis, 105 Ma.ss. 310. As to what will constitute that degree of negligence for which a carrier of passengers will be held liable, it must of course depend upon the circumstances of each case ; and is ■ principally a question of fact for the jury, with proper instructions from the court. See Derwort v. Loomer, 21 Conn. 245. In Crofts V. Waterhouse, 3 Bing. 319, the driver of a stage-coach gathered a bank, and upset the coach. He had passed the spot where the accident happened twelve hours before, but in the interval a land- mark had been removed. In an action for an injury su.stained by this accident, Littledale, J., before whom the cause was tried, told the jury, that as there was no obstruction in the road, the driver ought to have kept within the limits of it ; and that the accident having been occasioned by his deviation, the plaintiff was entitled to a verdict. A verdict having been re- turned accordingly, the Court of Common rieas granted a new trial, on the ground that the jury should have been directed to consider whether or not the deviation was the effect of negligence. {hb) Brockway v. La.scala, 1 Edm. Sel. Cas. 135. 231 * 220 THE LAW OF CONTRACTS. [BOOK III. part of the. agent, (c) And a railroad company which permits another company to use its road, is liable for damage caused to passengers itself is carrying, by the negligence of the servants of the other company which is permitted to use the road, {cc) ^ (r) Weed v. Pauama Railroad Co. 5 (cc) Raikoad Co. v, Barron, 5 Wal- Duer, 193 ; s. c. 17 N. Y. 362. See chap- lace, 90. ter ou Agency. 1 In Littlejohn v. Fitchburg R. R. Co. 148 Mass. 478, Holmes, J., in delivering the opinion of the court said : that in the case of " an action to recover for personal injuries, brought bv a passenger who had paid his fare, it would make no differ- ence in tlie defendant's liability whether the injuries were caused by the negli- gence of thi)se who were, in a strict sense, the defendant's servants, or by that of a third person who managed the road over which the defendant had undertaken to carry the plaintiff. McElroy v. Nashua & Lowell Railroad, 4 Cush. 400; Eaton v. Boston & Lowell Railroad, 11 Allen, .500; White v. Fitchburg Railroad, 136 Mass. 321, 325 ; Railroad Co. v. Barron, 5 Wall. 90, 104. And the case would not be altered by the fact that the person in charge was the Commonwealth. Peters v. Rylands, 20 Pa. 497. . ^ , " There are weighty decisions, also, to the effect that in such an action the defend- ant is liable, not only for negligence at the time of the accident, but for any defect in its appliances which might have been discovered at the time when they were made, although the defendant did not make them and the defect could not have been discov- ered afterwards. Hegeman v. Western Railroad, 13 N. Y. 9 ; Pendleton v. Kinsley, 3 Cliff. 416,421; Philadelphia & Reading Railroad v. Anderson, 94 Pa. 351, 359; Francis v. Cockrell, L. R. 5 Q. B. 184, 501 ; Grote v. Chester & Holyhead Railway, 2 Exch. 251,255. Compare lugalls v. Bills, 9 Met. 1, 11. See Pennsylvania Co. u. Rov, 102 U. S. 451 ; Hutchinson on Carriers, §§ 509-512. And see Grand Kapids & Indiana Railroad v. Huntlev, 38 Mich. 537, 546, 547, citing Richardson v. Great ^Eastern Railway, 1 C. P. D. 342. Compare Wright v. Midland Railway, L. R. 8 Ex. 137. " In some of the cases it is intimated that the negligence of the third person is im- puted to the carrier. White v. Fitchburg Railroad, 136 Mass. 321 ; Peters v. Rylands, 20 Pa. 497 ; Pennsylvania Co. v. Roy, 102 U. S. 451 ; Wabash, St. Louis & Pacific Railway v. Peyton, 106 111. 534, 540. And in some instances, at lea.st, the declara- tion has alleged negligence on the part of the defendant only. See Great Western Railway v. Blake, 7 H. & N. 987 ; Buxton v. North Eastern Railwav, L. R, 3 Q. B. 549 ; Thomas v. Rhymney Railway, L. R. 5 Q. B. 226, and L. R. 6 Q. B. 266 ; Peters V. Rylands, 20 Pa. 497 ; Hegeman r. Western Railroad, 13 N. Y. 9. In an early case it was said, ' Everything is a negligence in a carrier or hoyman that the law does not excuse.' Dale v. Hall, 1 Wilson, 281, 282. On the other hand the extreme lia- bility imposed by the foregoing decisions very frequently has been referred to the carrier's implied contract, or to what the passenger reasonably may understand that the carrier assumed. Thomas v. Rhvmnev Railway, L. R. 5 Q. B. 226 ; Francis v. Cockrell, L. R. 5 Q. B. 184; Peters v. Rylands, 20 Pa. 497; Eaton v. Boston & Lowell Railroad, 11 Allen, 500; Noltoni'. Western Railroad, 15 N. Y. 444, 447. Com- pare Buxton V. ISTorth Eastern Railway, L. R. 3 Q. B. 549 ; Austin v. Great Western Railway, L. R. 2 Q. B. 442, 446. And some judges have pointed out that tlie liability could not stand on the carrier's negligence, and have suggested that the declaration be varied accordingly. Thomas v. Rhymney Railway, L. R. 6 Q. B. 266, 275 ; s. c. 40 L. J. Q. B. 89, 95."" See also as to the general question, Chattanooga, &c. R. R. Co. v. Liddell. 85 Ga. 482 ; St. Louis, &c. Ry. Co. v. Curl, 28 Kan. 622 ; Denver, &c. Ry. Co. v. Cowgill, 44 Kan. 325, 328; Nugent v. Boston, &c. R. R. Co. 80 Me. 62 ; Internat., &c. R. R. Co. V. Dunham, 68 Tex. 231 ; Naglee r. Alexandria, &c. R. R. Co. 83 Va. 707. But if a railroad parts with all control over its road by a lease properly executed and authorized it will not be liable for accidents caused by negligent operation of the road by the lessee, though it will be liable for accidents due to defective construction. Nugent V. Bo.ston, &c. R. R. Co. 80 Me. 62, 76. A railroad company using sleeping or drawing-room cars belonging to another company, although a special ticket is necessary for riding on such cars, is lial)]c to its passengers for injuries received by the negligence of such other company or its ser- 232 CH. XI.] BAILMENT. * 222 A person is a passenger who, with intent to become a passenger, is riding to a station in a carriage run by the company to carry passengers to their station, although he has not bought a ticket nor formally announced his purpose ; and, if injured, the company are liable, (cd) ^ *A carrier, who is not a common carrier, may be liable * 221 for injury to a passenger caused by his default; but not to one who rides * in his carriage, without any bargain, and * 222 without his authority, (f/) Whether a common carrier is liable to a passenger to whom he has given passage, and from whom he has, therefore, no right to demand fare, is not so cer- tain ; but he would certainly be liable for gross negligence, and probably liable for any negligence, (e) He is certainly not excused {cd) Buffett V. Troy, &c. R. R. Co. 40 jury to his person was occasioned by N. Y. 168. coming into collision with a locomotive (fZ) Lygo V. Newbold, 9 Exch. 302. and tender, in the charge of an agent or (e) This question arose in the case of servant of the company, which was on The Philadelphia & Reading Railroad Co. the same track, and moving in an oppo- V. Derliy, 14 How. 468, in the Supreme site direction. Another agent of the Court of the United States, but was not company, in the exercise of proper care decided. The court, however, strongly and caution, had given orders to keep intimated an opinion in the affirmative, this track clear. The driver of the col- The circumstances of the case were these, liding engine acted in disobedience and The action was brought to recover dam- disregard of these orders, and thus caused ages for an injury suffered by the plain- the collision. The court below instructed tiff on the railroad of the defendants, the jury, that if the plaintiff was lawfully The plaintiff was himself a stockholder on the road at the time of the collision, in the defendants' railroad company, and and the collision and consequent injuries the president of another. He was on the to him were caused by the rjross 7ier/lic/ence road of the defendants by invitation of of one of the servants of the defendants, the president of the company, not in then and there employed on the road, he the usual passenger cars, but in a small was entitled to recover, uotwithstand- locomotive car used for the convenience ing the circumstances given in evidence, of the officers of the company, and paid and relied upon by the defendants' coun- no fare for his transportation. The in- sel, as forming a defence to the action ; vants, as by the fall of a berth, Pennsylvania Co. v. Roy, 102 U. S. 451 ; or for a wrongful removal therefrom by a porter, Thorpe v. N. Y. Central, &c. R. R. Co. 76 N. Y. 402; (but see contra. Paddock v. Atchison, &c. R. R. Co. 37 Fed. Rep. 841) ; or for loss of baggage left in a sleeping car under the care of an emplove. Kinslev u. Lake Shore, &c. R. R. Co. 125 Mass. 54. See also Cleveland, &c. R.'R. Co. v. Wal- rath, 38 Ohio St. 461 ; Louisville, &c. R. R. Co. i;. Katzenberger, 16 Lea, 380. 1 A person walking to a station with intent to purchase a ticket is not a pas- senger. June V. Boston & Albany R. R. Co. 153 Mass. 79. Arrival at the station and purchase of a ticket, however, entitle one to the protection of a passenger while proceeding to the train. Warren r. Fitch burg R. R. Co. 8 Allen, 227 ; Mulligan c. New York, &c. Ry. Co. 129 N. Y. 506, 515. And so when waiting for a train at a station even before the purchase of a ticket. Caswell v. Boston & Worcester R. R. Co. 98 Mass. 194. After the carriage has begun, an authorized temporary absence, as for refreshments, does not deprive the passenger of his right to protection as such while he is going and returning, though during the interval between his departure and return he is not a passenger. Jeffersonville, &c. R. R. Co. v. Riley, 39 Ind. 568 ; Peniston ;.•. Chicago, &c. R. R. Co. .34 La. An. 777 ; Dodge v. Boston & Baugor S. S. Co. 148 Mass. 207 ; Parsons v. N. Y. Central, &c. R. R. Co. 113 N. Y. 355. See also Keokuk, &c. Packet Co. v. True, 88 111. 608; Dwindle ?'. N. Y. Cen- tral, &c. R. R. Co. 120 N. Y. 117 ; Street Ry. Co. v. Bolton, 43 Ohio St. 224; Dice V. Willamette Trans. Co. 8 Ore. 60. 233 223 THE LAW OP CONTRACTS. [book m. by mere non-payment, unless payment has been demanded * 223 and refused, {ee) * It has been held in New York, that a contract betwen a railroad company and a gratuitous pas- senger, exempting the company from liability under any circum- stances of negligence on the part of its agents, is not against law or public policy, and is valid ;(/) ^ and it has been held in Illinois, just otherwise. (/) ^ But it would seem that an owner of cattle transported on a railroad, who goes along in charge of them, is not such a gratuitous passenger. (^) It may be remarked, that a servant, travelling with his master, may recover for a loss, although his master bought and paid for the ticket. (^) The reason of the difference between his liability as to pas- sengers, and as to goods, is this. The carrier of goods has abso- namely, that the plaintiff was a stock- holder iu the company, riding by the invitation of the president, paying no fare, and not in the usual passenger cars, &c. The Supreme Court held this in- struction to be correct, and Grier, J., in speaking of the grounds of a carrier's duty, said: "This duty does not result alone from the consideration paid for the service. It is imposed by the law, even where the service is gratuitous. ' The confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty iu the per- formance of it.' See Coggs v. Bernard, and cases cited in 1 Smith, Lead. Cas. 95. It is true a distinction has been taken in some cases between simple negli- gence and great or gross negligence, and it is said that one who acts gratuitously is liable only for the latter. But this case does not call upon us to define the difference (if it be capable of definition), as the verdict has found this to be a case of gross negligence. When carriers un- dertake to convey persons by the power- ful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the con- sideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negli- gence of careless agents. Any negligence in such cases may well deserve the epithet of 'gross.' " And the doctrine laid down in that case was reaffirmed, as not only resting on public policy, but on sound principle, in Steamboat New World v. King, 16 How. 469. And see Littlejohn v. Fitchburg R. R. Co. 148 Mass. 478. But see Boyce v. Anderson, 2 Tet. 150, 156, where it is said, that the carrier of a slave without reward would be liable only for g^oss negligence. See also Williams v. Taylor, 4 Port. (Ala.) 234. In Fay i-. Steamer New World, 1 Cal. 348, it was decided that a common carrier, transport- ing gold dust gratuitously, was not liable in ca.se of loss, unless negligent. See Gordon v. Grand Street R. R. Co. 40 Barb. 546 ; Indiana, &c. R. R. Co. v. Mundv, 21 Ind. 48; Ohio R. R. Co. j;. Mahling, 30 111. 9. (ee) Hurt v. Southern R. R. Co. 40 Miss. 391. if) Wells V. New York Central R. R. Co. 24 N. Y. (10 Smith) 181. {(f) Illinois R. R. Co. v. Read, 37 111. 484. {g) Perkins v. New York Central R. R. Co. 24 N. Y. (10 Smith) 222; Flinn v. Philadelphia R. R. Co. 1 Houston, 469. (h) MarshaU v. York, N. & B. Co. 11 C. B. 398, 655. 1 And in New Jersey, Kinney v. Central R. Co. 5 Vroom, 513. In England it is held that a drover who travels free " at his own risk " cannot recover for injuries resulting from a railroad company's negligence, Galliu v. London, &c. R. Co. L. R. 10 Q. B. 212 ; even if "gross," McCawley v. Furness R. Co. L. R. 8 Q. B. 57 ; nor if trav- elling on one railroad in continuation of his journey under such an agreement with another railroad. Hall v. North Eastern R. Co. L. R. 10 Q. B. 437. The holder of a " drover's ticket " cannot use it for stop-over purposes contrary to a regulation of the railroad company. Dietrich v. Penn. R. Co., 71 Pa. 432. — K. ^ So in Indiana. Ohio, &c. R. Co. v. Selby, 47 Ind. 471. See however Arnold e. 111. Cent. R. Co. 83 111. 273. — K. 234 CH. XL] BAILMENT. 224 lute control over them while they are in his hands ; he can fasten them with ropes, or box them up, or put them under lock and key. But the carrier of passengers must leave to them some power of self-direction, some freedom of motion, some care of * themselves. It would be wrong, therefore, to hold * 224 him to as absolute a responsibility as in the case of goods ; it is, however, held that the carrier of passengers is liable for the goods of the passenger put under his care in the same way that he is for other goods, {hli) But still the policy of the law applies to the carrier of passengers as to the carrier of goods. It admits only so much mitigation of the rule, as that he is liable only when he is guilty of some negligence ; but if in the least degree uesligent, he is liable, because the law holds him to do all that care and skill can do for the safety of his passengers. Only when all this is done, and he can show that the injury complained of is not to be attributed to any default whatever on his part, or on the part of any one for whom he is responsible, is he discharged from his liability. It seems to have been held decidedly, that the onus to prove that he is not in fault, rests on him. (z) Some {hh) MerriU v. GriuneU, 30 N. Y. 594. (i) Christie v. Griggs, 2 Camp. 79. This was an action of assumpsit against the defendant, as owner of the Elackwall stage, on which the plaintiff, a pilot, was travelling to London, when it broke down and he was greatly bruised. The first count imputed the accident to the negli- gence of the driver ; the second, to the insufficiency of the axle-tree of the car- riage. The plaintiff having proved that the axle-tree snapped asunder at a place where there was a slight descent, from the kennel crossing the road ; that he was in consequence precipitated from the top of the coach ; and that the bruises he received confined him several weeks to his bed ; there rested his case. Best, Ser- jeant, contended strenuously that the plaintiff was bound to proceed further, and give evidence, either of the driver being unskilful, or of the coach being in- sufficient. But per Mansfield, C. J.: " I think the plaintiff has made a prima facie case by proving his going on the coach, the accident, and the damage he has suffered. It now lies on the other side to sliow that the coach was as good a coach as could be made, and that the driver was as skilful a driver as could anvwhere be found. What other evidence can the plaintiff give ? The passengers were probably all sailors like himself; and how do they know whether the coach was well built or whether the coachman drove skilfully ? In many other cases of this sort it must be equally impossible for the plaintiff to give the evidence required. But when the breaking down or overturning of a coach is proved, negligence on tlie part of the owner is implied. He has always the me;xns to rebut this presumption, if it be unfounded, and it is now incumbent on the defend- ant to make out that the damage in tliis case arose from wliat the law considers a mere accident.'^ The same point was ruled by Lord Denman at yisi Priits, in Carpue v. The L. & B. Railway Co. 5 Q. B. 747 : it was decided by the Court of Exchequer, in Skinner n London, Brigh- ton, & South-coast Railway Co. 2 E. L. & E. 360 ; s. c. .5 Exch. 78^, and has lieen repeatedly confirmed in this country. Thus, in Ware v. Gay, 11 Pick. IOC, It was held, that, if in an action by a pas- senger against the proprietors of a stage- coach, for an injury occasioned by the insufficiency of the coach, tlie plain- tiff proves, that wliile the coach was driven at a moderate rate upon a plain and level road, without coming in con- tact with any other object, one of the wheels came off and tlie coach overset, whereby tlie plaintiff was hurt, the law will imply negligence, and the burden of proof will rest upon the defendants to rebut this legal inference, by showing that the coach was properly fitted out and provided. To the same effect are 235 * 225 THE LAW OF CONTRACTS. [BOOK III. question, however, may exist on this point. We should * 225 express our own view of the law * thus. The plaintiff must not merely prove that he has sustained injury ; but must go so much further as to show that he suffered from such accident, or such other cause as may with reasonable probability be attributed to the negligence of the defendant. Thus far the onus is on the plaintiff. But then it shifts, and the defendant must prove an absence of negligence or of default on his part. And if the plaintiff has made out his iJrimd facie case, and the evidence offered in defence leaves it uncertain whether there was negligence or not, the plaintiff" must prevail; (;') extraordinary care being demanded of the carrier, and only ordinary care of the passenger. (_;}') If the passenger causes the injury, by his own negligence, the carrier is not liable.^ In a recent case in New York, this rule was applied to a child, with what seems to us undue severity. It was said that if a child has not reached years of discretion " he should have a protector. " Be it so. But if he has no protector, and does that which might be expected of him, but would be negligence in an adult, is it law that the care required of passengers is the same for all, as held in this case, without regard to age or condition ? (Jk) We should prefer the rule which would better accord not only with the sentiments of the community, but with the prevailing practice of railroad com- panies ; namely, that they should be, as far as circumstances permit, the protectors of those who need protection, as females and children. The damages may not only cover existing injury and costs, but further and prospective loss and expense, if such be inevita- Stokes V. Saltonstall, 13 Pet. 181 ; Stock- of Holbrook v. The Utica & Schenec- ton V. Frev, 4 Gill, 406 ; McKinney v. tady R. R Co. 2 Kern. 236. See also Keil, I McLean, 540; Farisli v. Reigle, Fairchild v. Cal. Stage Co. 13 Cal. 599 ; 11 Gratt. 697 ; Brehm v. Great Western Baker v. Xe\y York Central R. R. Co. 24 R. R. Co. 34 Barb. 256 ; Boyce v. Cal. N. Y. (10 Smith) 599. Stage Co. 25 Cal. 460. And see Hntchin- [jj) Huelseukamp v. Citizens R. R. son on Carriers § 766 el seq. and ante, Co. 37 Mo. 537. p. *222, note (d). ( jk) Sheridan v. Brooklyn R. R. Co. (j) We consider that the view ex- 36 N. Y. 39. See Atchison, &c. R. Co. v. pressed in the text accords with the case Flinn, 24 Kan. 627 1 The test of contributory negligence is whether the passenger's act, as in jumping from a car when alarmed by the overturning of a car behind him, Wilson v. Northern Pac. R. Co. 26 ISIinn. 278 ; or in stepping off an unusually high step of a car and break- ing a knee-cap, Delaware, &c. R. Co. v. Napheys, 90 Pa. 135, was the act of a man of ordinary prudence in the same circumstances. But where a passenger, waiting on the opposite side of the track from a platform after dark for a train, with ample time to cross over to the platform, who attempts without so doing to board the train and is thrown off before securely on, Michigan, &c. R. Co. v. Coleman, 28 Mich. 440 ; or steps from a starting train, although it did not previously allow a reasonable time for exit, Jewell V. Chicago, &c. R. Co. 54 Wis. 610, cannot be said to be free from contributory negligence. — K. 236 CH. XI.] BAILMENT. *225 ble and may even be exemplary, if the negligence calls for this. (A) 1 It is his duty to receive all passengers who offer ; (/) to carry (k) Hopkins v. A. & St. L. R. R. Co. 36 N. H. 9. (/) Bennett v. Button, 10 N. H. 481 ; Jencks v. Coleman, 2 Sumner, 221. This question was much discussed in Bennett V. The P. & O. Steamboat Co. 6 C. B. 775, but the case went off finally on a question of pleading. The obligation of the passenger carrier is, however, sub- jected to some limitation. Thus, he may rightfully exclude all persons of bad character or habits ; all whose objects are to interfere in any way with his interests, or to disturb his line of pat- ronage ; and all who refuse to obey the reasonable regulations which are made for the government of the line ; and he may rightfully inquire into the h.abits or motives of passengers who offer them- selves. Jencks v. Coleman, 2 Sumner, 221. This was an action against the proprietor of a steamboat, running from New York to Providence, for refusing to receive the plaintiff on board as a pas- senger. The plaintiff was the known agent of the Tremont line of stage- coaches. The proprietors of the steam- boats, President and Benjamin Franklin, had, as the plaintiff knew, entered into a contract with another line called the Citizens Stage-Coach Company, to carry passengers between Boston and Provi- dence, in connection with the boats. The plaintiff had been in the habit of coming on board the steamboats at Provi- dence and Newport, for the purpose of soliciting passengers for the Tremont line, which the proprietors of the President and Benjamin Franklin had prohibited. It was held, that if the jury should be of opinion that the above contract was reasonable and bond fide, and not entered into for the purpose of an oppressive monopoly, and that the e.Kclusion of the plaintiff was a reasonable regulation in order to carry this contract into effect, the proprietors of the steamboat would be justified iu refusing to take the plain- tiff on board. Storij, J., said : " The right of passengers to a passage on hoard of a steamboat is not an unlimited right. But it is subject to such reasonable reg- ulations as the proprietors may prescribe for the due accommodation of passengers, and for the due arrangement of their business. The proprietors have not only this right, but the further right to con- sult and provide for their own interests in the management of such boats, as a common incident to their right of prop- erty. They are not bound to admit pas- sengers on board, who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct ; or who make disturbances on board, or whose characters are doubt- ful, or dissolute, or suspicious; and, a fortiori, whose characters are unequivo- cally bad. Nor are they bound to admit passengers on board whose object it is to interfere with the interests or patron- age of the proprietors so as to make the business less lucrative to them." So in Commonwealth v. Power, 7 Met. 596, it was held, that if an innkeeper, who has frequently entered a railroad depot and annoyed passengers by soliciting them to go to his inn, receives notice from the superintendent of the depot that he must do so no more, and he nevertheless re- peatedly enters the depot for the same purpose, and afterwards obtains a ticket for a passage in the cars with a bond fide intention of entering the cars as a passen- ger, and goes into the depot on his way to the cars, and the superintendent, be- lieving that he had entered the depot to solicit passengers, orders him to go out, and he does not exhibit his ticket nor give notice of his real intention, but presses forward towards the cars, and the superintendent and his assistants thereupon forcibly remove him from the depot, using no more force than is ne- cessary for that purpose, such removal is justifiable, and not an indictable as- sault and batterv. But in Bennett v. Button, 10 N H. 481, it was held, that the proprietors of a stage-coach, who hold themselves out as common carriers of passengers, are bound to receive all who require a passage, so long as they have room, and there is no legal excuse for a refusal ; and that it was not a law- ful excuse that they ran their coach in connection with another coach, which extended the line to a certain place, and had agreed with the proprietor of such other coach not to receive passengers who came from that place on certain 1 The jury, in assessing the damages, may take into consideration, besides the pain and suffering, and the expense incurred for medical and other necessary attendance, the loss sustained through inability to continue a lucrative professional practice. Phillips v. London, &c. K. Co. 5 C. P. B."280. — K. 237 * 227 THE LATV OF CONTRACTS. [book III * 226 * them the whole route ; (m) to demand no more than the usual and established compensation ; to treat all *227 his passengers alike ;i * to behave to all with civility days, unless they came in his coach. The defentlant was one of the proprie- tors, and the driver of a stage-coach run- ning daily between Amherst and Nashua, which connected at the latter place with another coach, running between Nashua and Lowell, and thus forms a continuous mail and passenger line from Lowell to Amherst, and onward to Fraucestown. A third person ran a coach to and from Nashua and Lowell, and the defendant agreed with tlie jjroprietor of the coach connecting with his line, that he would not receive passengers who came from Lowell to Nashua in the coach of such third person on the same day that they ap- plied for passage to places above Nashua. The plaintiff was notified at Lowell of this arrangement, but notwithstanding came from Lowell to Nashua in that coach, and then demanded a passage in the defendant's coach to Amherst, ten- dering the regular fare. Held, that the defendant was bound to receive him, there being sufficient room, and no evi- dence that the plaintiff was an unfit person to be admitted, or that he had any design of injuring the defendant's business. (m) Dudley c. Smith, 1 Camp. 167. In this case the plaintiff took a seat on the outside of the defendant's coach, to be conveyed from a place called the Red Lion, in the Strand, to Chelsea. It ap- peared that she was so conveyed safely as far as the Cross Keys Inn, at Chelsea, where the coach was accustomed to stop. When the coach arrived before the gate- way of this inn, leading to the stable yard, the coachman requested the plain- tiff to alight there, as the passage into tlie yard was very awkward. She said, as the road was dirty, she would rather be driven into the yard. He then ad- vised her to stoop, and drove on. The consequence was, that she was struck violently on the shoulders and back by a low archway in the passage, by which she was severely injured. It appeared in evidence that the archway was only twelve inches higher than the top of the coach. Upon this evidence, Lord Ellen- borourjh, in summing up to the ]ury, said : " The defendant was bound to carry the plaintiff from the usual place of taking up to the usual place of setting down. As coach-owner, therefore, he was an- swerable for the negligent acts of his servant, till the plaintiff was set down at the usual place for passengers alighting at Chelsea. This ajjpears, fur the inside passengers at least, to have been the yard. K the coachman had said to her, ' The others will be safe in proceeding, but you must go down here, as you can- not remain upon the coach without dan- ger to your life,' she could only have blamed her own imprudence for what followed. But he should have given her the materials to judge, if he was to leave her to make her election. He told her the passage was awkward, whereas, ac- cording to the evidence, it was impracti- able." See also Massiter v. Cooper, 4 Esp. 260. In Coppin v. Braithwaite, 8 Jur. 875, it is said to have been ruled l)y Rolfe, B., at Nisi Prius, that a carrier having received a pickpocket, as a pas- senger, on board his vessel and taken his fare, he cannot put him on shore at an intermediate place, so long as he is not guilty of any impropriety. But see the preceding note. — In Ker v. Mountain, 1 Esp 27, it was ruled by Lord Ken>/on, tliat if a person engages a seat in a stage- coach, and pays at the same time only a deposit, as half the fare, for example, and is not at the inn ready to take his seat wlien the coach is setting off, the proprietor of the coach is at liberty to fill up his place with another passenger , but if, at the time of engaging his seat. 1 It is generally held, however, that a carrier may separate classes of passengers, as white from colored persons, provided it furnishes equallv good accommodations for the same fare. Chicago, &c. Rv. Co. v. Williams, 5.5 111. 185 ; Day v. Owen, 5 Mich. 520 ; Westchester, &c. R. R. Co. v. Miles, 55 Pa. 209 ; Chesapeake, &c. R R. Co f. Wells, 85 Tenn. 613; McGuinn v. Forbes, 37 Fed. Rep. 639, and note; Houck v. So. Pac. R. R. Co. 38 Fed. Rep. 226 ; Logwood v. Memphis, &c. R. R. Co. 23 Fed. Rep. 318 ; The Sue, 22 Fed. Rep. 843. Cf. Ferguson v. Gies, 82 Mich 358. 363. In some of the Southern States statutes either permit or require such separation, and a statute of Louisiana requiring carriers to carry both white and colored passeiigers together was held unconstitutional so far as it"applie