QJornell &aro i>rljnnl Kibtaty The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018915383 Cornell University Library KF 1091.D63 Handbook on the law of bailments and car 3 1924 018 915 383 C(Se J)orn6oo8 ^Settee Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and sold at the uniform price of $4.25 per volume, including delivery. - Bound in Standard Law Buckram. Barrows on Negligence. Black on Construction and Interpretation of Laws (2d Ed.). Black on Constitutional Law (3d Ed.). Black on Judicial Precedents. Burdick on Real Property. Chapin on Torts. Childs on Suretyship and Guaranty. 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C11517— c HANDBOOK ON THE LAW OF BAILMENTS AND CARRIERS BY / ARMISTEAD M. DOBIE PROFESSOR OF LAW IN THE UNIVERSITY OF VIRGINIA AUTHOR OF DOBIE'S CASEBOOK ON BAILMENTS AND CARRIERS ST. PAUL WEST PUBLISHING CO. 1914 TABLE OF CONTENTS PART ONE BAILMENTS CHAPTER I DEFINITION AND CLASSIFICATION OF BAILMENTS Section Page 1. Definition 1-3 2. Historical 4-5 3. Bailment and Sale Distinguished - 6-10 X 4. Classification of the Roman Law 10-11 5. Modern Classification with Reference to Benefit 12-13 6. Classification of Locatio Bailments as Ordinary and Extraor- dinary 13-14 7. Graphic Chart 14 CHAPTER II GENERAL PRINCIPLES COMMON TO ALL BAILMENTS 8. Introductory 15-19 9. Bailment of Personalty Only 20 10. Delivery 21-22 11. Acceptance 22-25 12. What Title Bailor Must Have 25 13. Interest of Bailor and Bailee in the Bailed Goods 26-28 14. Estoppel of Bailee to Deny Bailor's Title 28-30 15. Bailor Miist Not Expose Bailee to Danger without Warning. . 31-32 16. Care to be Exercised by the Bailee 32-36 17. Presumption of Negligence from Loss or Injury 36-39 18. Bailee Must Act in Good Faith 39-40 19. Redelivery of Bailed Goods by the Bailee 40-43 20. Termination of the Bailment 44-46 Dob.Bajlm. (vii) Vlll TABLE OF CONTENTS CHAPTER III BAILMENTS FOR THE BAILOR'S SOLE BENEFIT Section Page 21. Depositum and Mandatum. 47-51 22. Nature of the Relation 51-52 23. Absence of Compensation to Bailee 53-57 24. Rights and Duties of the Parties 58 25. Expenses of Carrying Out the Bailment 58-60 26. Liability for Nonfeasance and Misfeasance 60-62 27. Use of Bailed Chattels by Bailee 62 28. Interest of Bailor and Bailee 62-64 29. Degree of Care to be Exercised by the Bailee. 65-70 30. Termination of Bailment 71 = 75" 31. Redelivery of the Bailed Goods 75-76 CHAPTER IV BAILMENTS FOR THE BAILEE'S SOLE BENEFIT 32. Introductory — Commodatum 77-78 33. Nature of the Relation 79-80 34. Rights and Duties of the Parties 81 35. Expenses of the Bailment 81-82 36. Fraud in Procuring the Loan 82 37. Use of Bailed Chattels by the Bailee 83-84 3S. Interest of the Bailee 85-86 39. Right of Bailor and Bailee to Bring Suit 86-87 40. Degree of Care to be Exercised by the Bailee 88-91 41. Termination of the Bailment 91-94 42. Redelivery of the Bailed Goods 94-95 CHAPTER V BAILMENTS FOR MUTUAL BENEFIT— HIRED USE OF THINGS 43. Classification of Mutual Benefit Bailments 96-98 44. Locatio or Hiring — In General 98-99 45. Nature of the Relation 99-103 46. Locatio Rei, or the Hired Use of a Thing 103-104 47. Use of Bailed Chattels by the Bailee 104-112 48. Interest of the Bailee — Right to Bring Suit 112-113 49. Assignability of Bailee's Interest 114-115 50. Bailor's Warranty of Title or Interest 115-116 51. Liability for nijuries to Third Persons 116-117 52. Expenses about the Bailed Chattels 117-118 53. Degree of Care to be Exercised by the Bailee 118-122 54. Liability of Bailee for Acts of his Agents or Servants.... 122-124 55. Compensation of the Bailor 124-126 56. Termination of the Bailment 126-128 57. Redelivery of the Bailed Goods 128 TABLE OF CONTENTS IX CHAPTER VI BAILMENTS FOR MUTUAL BENEFIT— HIRED SERVICES ABOUT THINGS Section Page 58. Classification 129-131 59. Rights and Duties of the Parties— In General 131-132 60. Performance of the Agreed Services by the Bailee 132-133 61. Interest of the Bailee— Right to Bring Suit 133-134 62. Compensation of the Bailee 134-143 /63. Expenses of the Bailment 143 64. The Lien of the Bailee on the Bailed Chattels 143-154 65. The Degree of Care to be Exercised by the Bailee 154-158 66. Delegation of the Services- by the Bailee to a Third Person 158-159 67. Specific Bailments 159-170 Warehousemen 159-165 Wharfingers 165-166 Safe-Deposit Companies 166-168 Factors or Commission Merchants 168-169 Oflicers Charged with the Custody of Public Funds 169-170 68. Termination of the Bailment 171 69. Redelivery of the Bailed Goods 172 CHAPTER VII BAILMENTS FOR MUTUAL BENEFIT— PLEDGES 70. Definitions and Distinctions 173-179 71. The Nature of the Relation 179-183 72. The Title of the Pledgor 183-185 73. What May be Pledged 185-188 74. Delivery 188-197 75. Rights and Duties of the Pledgor . . . 197-203 76. Rights and Duties of the Pledgee as Affected by Pledgor's De- fault 203 77. Rights and Duties of the Pledgee Before Default — Assignability of the Pledgee's Interest 204 78. Relative Title Acquired by the Pledgee 205-214* 79. Special Property of Pledgee in Pledged Goods — Right to Bring Suit 214-il5 80. Right to Use the Pledged Goods 215-216 81. Profits of the Thing Pledged 216-217 82. Expenses About the Thing Pledged 218-219 83. Degree of Care Required of the Pledgee 219-222 84. Redelivery of the Pledged Goods '. >. 222-225 85. Rights and Duties of the Pledgee After Default— In General. . 225-226 86. Holding the Pledged Goods 226-227 87. Suit on the Debt or Engagement Secured 227-229 88. Sale of the Pledged Goods 229-236 89. Termination of the Pledge 236-240 TABLE OF CONTENTS CHAPTER VIII INNKEEPERS Section Pa S 9 90. Definition and Distinctions 241-249 91. Who are Guests, 249-257 92. Duration of the Relation 257-258 93. Rights and Duties of Innkeeper — In General 258-259 94. The Duty to Receive Guests 259-263 95. The Duty to Care for the Comfort and Safety of the Guest 263-265 96. Liability for the Goods" of the Guest 265-273 97. To What Goods the Innkeeper's Liability Extends 274-279 98. Limitation of the Innkeeper's Liability 279-283 99. The Right of Compensation and Lien — The Compensation of the Innkeeper , 283-285 100. The Innkeeper's Lien — Its Nature and Extent 285-289 101. The Waiver of the Lien 289-290 102. The Enforcement of the Lien 290 103. The Liability of the Innkeeper as an Ordinary Bailee.... 290-292 104. The Termination of the Relation 293-295 PART TWO CARRIERS CHAPTER IX PRIVATE AND COMMON CARRIERS OF GOODS 105. Carriers 296-297 106. Private Carriers of Goods 297-300 107. Common Carriers of Goods 300-311 CHAPTER X LIABILITIES OF THE COMMON CARRIER OF GOODS 108. Introductory Outline 3X2 109. Duty to Carry for All 313 110. Duty Coextensive with the Holding Out 314-315 111. Duty Limited by the Extent of the Carrier's Facilities 315-317 112. Duty Limited by the Nature or Condition of the Goods 317-318 113. Duty Limited by the Carrier's Right to Demand Payment in Advance 319 TABLE OF CONTENTS XI Section Page 114. Duty Limited to an Offer of the Goods by the Owner or His Agent 320 115. Duty to Furnish Equal Facilities to All 320-324 116. Liability for Loss of, or Damage to, the Goods 324-341 117. Liability. as Affected by the Carrier's Negligence 341-347 118. Burden of Proof. . 347-350 119. Carriers of Live Stock ..,..,.,..,.. 350-356 120. The Harter Act as to Carriers by Water— Limited Liability Act 356-358 121. Carrier's Liability for Deviation and Delay — Deviation 358-360 121%., Delay 360-365 CHAPTER XI LIABILITY UNDER SPECIAL CONTRACT 122. Historical and Introductory 366-369 123. Method of Limiting Liability 369-372 124. Notice of the Carrier's Regulations 372-373 125. Form of the Contract 374-380 126. Consideration of the Contract 380-383 127. Construction of the Contract. , , , 383-388 128. Burden of Proof.... ,.,...,... ....... 388-390 129. Validity of Specific Stipulations — Stipulations Relieving Car- . rier. of Liability Save for Negligence 391-393 130. Stipulations Seeking to Relieve the Carrier from 'Liability for Negligence 393-395 131. Stipulations Limiting Liability as to Amount Recoverable — In the Absence of the Carrier's Negligence' 395-396 132. Carrier Negligent — Amount Fixed Without Regard to the Value of the Goods 396-397 133. Agreed Valuation of the Goods 397-404 134. Limitations as to Time and Manner of Presenting Claims. . 404-408 135. Statutory Regulation of Contracts Limiting Carrier's Liability 408-411 CHAPTER XII COMMENCEMENT AND TERMINATION OF THE LIABILITY OF THE COMMON CARRIER OF GOODS 136. Commencement of the Common Carrier's Liability — Delivery to the Carrier ;....,..,. 1 412-414 137. Acceptance by the Carrier 414-418 138. Evidence of Delivery and Acceptance 418-419 139. Termination of the Common Carrier's Liability — In General. . 419-420 140. Delivery to Consignee -. 420-421 141. Delivery to the Proper Person 421-424 142. Delivery at a Proper Time 424 143. Delivery at the Proper Place 424-130 144. Delivery in a Proper Manner. . . , 431-436 145. Delivery to a Connecting Carrier 436-452 146. Excuses for -Nondelivery by the Carrier 452-457 XU TABLE OF CONTENTS CHAPTER XIII THE EIGHTS OF THE COMMON CARRIER OF GOODS Section Pa s e 147. Compensation of the Carrier 458-466 148. Discrimination in the Carrier's Charges 467-475 149. The Carrier's Lien 473-483 CHAPTER XIV • QUASI CARRIERS OF GOODS— POST OFFICE DEPARTMENT 150. The Post Office Department 484-485 151. Postmasters and Other Officials 485-488 152. Contractors for Carrying the Mails 489-491 CHAPTER XV ACTIONS AGAINST CARRIERS OF GOODS 153. In General 492-493 154. The Parties 493-601 155. The Form of Action , 501-504 156. The Pleadings 504-505 157. The Evidence 506-607 158. The Measure of Damages — In General 507-508 159. Actions for Garrier's Refusal to Accept and Transport the Goods 508-510 160. Actions for Total Loss or Nondelivery of the Goods 510 161. Actions for Injury to the Goods 511-512 162. Actions for Delay in Transportation or Delivery of the Goods 512-513 163. Special Damages 514-616 PART THREE CARRIERS OF PASSENGERS CHAPTER XVI THE NATURE OF THE RELATION 164. Who are Carriers of Passengers 517-519 165. Sleeping Car Companies 520-526 166. Who are Passengers 526-536 TABLE OF CONTENTS Xlll CHAPTER XVII COMMENCEMENT AND TERMINATION OF THE RELATION Section Page 167. Commencement of the Relation 537-541 168. Termination of the Relation— In General 541 169. Full Performance by Carrier — Alighting at Station 541-543 170. Connecting Carriers 543-547 171. Ejection of Passenger by Carrier — Causes of Ejection.... 547-553 172; Circumstances Surrounding the Ejection 553-558 173. Abandonment of Incompleted Journey by Passenger. 558-560 CHAPTER XVIII LIABILITIES OF THE COMMON CARRIER OF PASSENGERS 174. Introductory 561-562 175. Duty to Accept and Carry Passengers 562-567 176. Duty to Furnish Equal Accommodations to Passengers. ....... 567-570 177. Liability for Delay in Transporting Passengers 571-572 178. Liability of Carrier for Injuries to Passengers — Analysis of Discussion 573 179. In General. , 573-578 180. Means of Transportation 578-582 181. Stational Facilities 583-586 182. Duties in Connection with Transportation 586-589 183. Servants of the Carrier 590-591 184. Protection of the Passenger 592-595 185. Contributory Negligence of Passenger 596-600 186. Contributory Negligence a Question of Law or of Fact 600-604 187. Last Clear Chance and Imputation of Negligence 604-607 188. Presumption and Burden of Proof as to Negligence 607-610 189. Carriers by Water 611-612 190. Contracts Limiting the Liability of the Passenger Carrier 612-615 191. Liability of the Carrier to Persons Other than Passengers.... 616-619 CHAPTER XIX THE RIGHTS OF THE COMMON CARRIER OF PASSENGERS 192. The Carrier's Right to Make Regulations 620-623 193. The Right to Compensation 623-624 194. Tickets 624-629 195. Wrong Ticket Given to Passenger by the Carrier 629-634 X1T TABLE OF CONTENTS CHAPTER XX THE BAGGAGE OF THE PASSENGER Section . Page 196. Duty and Liability of the Carrier as to the Baggage of the Pas- senger . . . . ; 635-642 197. WTiat is Baggage 642-649 198.' Liability of Carrier for Merchandise Shipped as Baggage 649-651 199. Passenger Must Either Own the Baggage or Have a Special In- terest in It 652-654 200. Passenger Accompanying the Baggage 654-657 201. Passenger's Custody of the Baggage 657-662 CHAPTER XXI ACTIONS AGAINST CARRIERS OF PASSENGERS 202. In General 663 203. The . Parties 664-667 204. The Form of Action 667-668 205. The Pleadings 668-669 ' 206. .The Evidence 670 207. The Measure of Damages — Actions for Personal Injuries 671-675 298. Actions Other Than Those for. Personal Injuries 675-679 2U9. Exemplary or Punitive Damages 679-681 210. Actions Relating to Baggage 682-683 SUPPLEMENT THE INTERSTATE COMMERCE ACT (Page 685) THE SAFETY APPLIANCE ACTS (Page 694) THE EMPLOYERS' LIABILITY ACTS (Page 695) TAKLE «F «ASES CITE» (Page 697) INDEX (Page 775) t HANDBOOK ON THE LAW OF BAILMENTS AND CARRIERS PART ONE BAILMENTS CHAPTER I DEFINITION AND CLASSIFICATION OF BAILMENTS 1. Definition. 2. Historical. 3. Bailment and Sale Distinguished. 4. Classification of the Roman Law. 5. Modern Classification with Reference to Benefit. 6. Classification of Locatio Bailments as Ordinary and Extraordinary. 7. Graphic Chart. DEFINITION 1. A bailment is the relation created through the transfer of the possession of goods or chattels, by a person called the bailor to a person called the bailee, without a transfer of ownership, for the accomplishment of a certain purpose, whereupon the goods or chattels are to be dealt with ac- cording to the instructions of the bailor. There are nearly as many definitions of a bailment as there are writers on the subject. The definition given in the black letter is submitted with the intention, not of adding to an already too numerous collection, but rather of furnishing a composite descrip- tion of some practical utility. Its accuracy, or lack of it, will appear as the general subject is developed and no elaborate attempt to justify it will be made here. Even an extended explication of the Dob.Bailm. — l 2 DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch. 1 terms of the definition will be postponed until the next chapter, which treats of the legal incidents inhering in the bailment relation. A bailment is usually denned as a delivery, 1 or transfer of the possession, of chattels under certain circumstances ; but it is defined above, not as a delivery of goods, but as a relation resulting from this delivery. It seems clearer and more accurate to designate de- livery as merely one of the essential elements of the definition and to say that, when it and all the other essential elements are present, there springs up a, legal relation which we call a bailment. The bail- ment does not rise to the dignity of a status, such as marriage. As a relation, however, it is upon the same plane as other important legal relations, such as agency, master and servant, or even part- nership. Since the bailment relation is created by a delivery of goods in the sense of a transfer of the possession of the chattels, this neces- sarily involves one person making the delivery and another to whom the delivery is made: The deliverer, the person actively i creating the bailment, is called the bailor ; the "deliveree," the per- son more or less passively accepting the bailment, is called the bailee. Possession is thus transferred by the bailor to the bailee. Though possession must pass in order that there may be a bail- ment, such possession must pass alone, and not in connection with, or as an incident to, ownership. If ownership passes, either with or without possession, the transaction then becomes, as we shall see (in section 3), not a bailment, but a gift or sale. So funda- mental is this that some writers describe bailments solely in terms of this unique feature. Thus Hammond refers to a bailment as "possession of a chattel lawfully severed from its ownership," while in the sixteenth century St. Germain gives us this happy and naive description of a bailment : "Goods that a man hath in his keeping which be not his own." Not a few distinguished writers (including Sir William Jones, Story, and Kent), in their definitions, refer to a bailment as the delivery of a thing "in trust." 2 This terminology is somewhat i See definitions given under note 2. 2 Bailment is defined by Sir William Jones (Jones, Bailm. 1) as being a delivery of goods in trust, on a contract, expresfe or implied, that the trust shall.be duly executed, and the goods redelivered as soon as the time or use for which they were bailed shall have elapsed or been performed. According to Judge Story (Story, Bailm. c. 1, § 2) a bailment is "a delivery of a thing in trust, for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust." In Kent's Com- mentaries (2 Kent,.Comm. [4th Ed.] lect. 40, p. 558) a bailment is said to be "a delivery of goods on trust, upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as § 1) DEFINITION 3 confusing, however, for in a technical trust the trustee has the legal title to the goods held in trust. In a bailment, as we have just seen, the bailee has merely possession, but not title or owner- ship. The motive actuating the bailor in creating the bailment is "the accomplishment of a certain purpose," so it is for the execution of this purpose by the bailee that possession of the goods is trans- ferred to him by the bailor. This is called the bailment purpose, and its nature plays an important part in the classification of bail- ments. When the bailment purpose is fully accomplished, the goods are to be dealt with by the bailee "according to the instructions of the bailor." In a majority, perhaps, of the cases, the goods are then to be redelivered to the bailor. Accordingly, some definitions spec- ify such a return to the owner as an essential element in a bailment. It is clear, though, that the instructions of the bailor are decisive of this question, and these instructions frequently indicate that, after the bailment purpose is accomplished, the bailee must deliver the goods to a person other than the bailor. Thus, the carrier must deliver the goods after the carriage of the goods is over, to the con- signee. Again, the factor or commission merchant keeps the goods of the bailor for sale to a third person, and on such a sale the factor is to deliver the goods to such third person as the purchaser. There are even cases when the bailor's instructions contemplate that the bailee himself is, on the performance of certain conditions, to keep the goods as their owner. 8 the purpose of the bailment shall be answered." Numerous other definitions, or unimportant variations on the definitions given, may be found in the re- ported cases. The essential elements of a bailment are now so well recog- nized, however, that modern accepted definitions differ rather in the wording than in legal effect. A contract whereby the owner of a sawmill and timber employed another to take possession of the mill and timber and saw the tim- ber into lumber for the owner created the relation of bailor and bailee, both as to the timber and lumber. Chaffin v. State, 5 6a. App. 368, 63 S. B. 230. See, also, as to what constitutes a bailment, Pribble v. Kent, 10 Ind. 325, 71 Am. Dec. 327 ; La Farge v. Rickert, 5 Wend. (N. Y.) 187, 21 Am. Dec. 209 ; Tuttle v. Campbell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. Rep. 652 ; Bohan- non v. Springfield, 9 Ala. 789; Oakley v. State, 40. Ala. 372; Green v. Hol- lingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; Newhall v. Paige, 10 Gray (Mass.) 366; Dunlap v. Gleason, 16 Mich. 158, 93 Am. Dec. 231; Wadsworth v. Allcott, 6 N. T. 64; Foe v. Home, 44 N. C. 398; Henry v. Patterson, 57 Pa. 346; Furlow v. Gillian, 19 Tex. 250; Armour & Co. v. Ross, 78 S. C. 294, 58 S. E. 941, 1135 ; Blondell v. Consolidated Gas Co., 89 Md. 732, 43 Atl. 817, 46 L. R. A. 187 ; Chaffin v. State, 5 Ga. App. 368, 63 S. E. 230 ; Northcutt v. State, 60 Tex. Cr. R. 259, 131 S. W. 1128, 31 L. R. A. (N. S.) 822; Bates v. Bigby, 123 Ga. 727, 51 S. E. 717. s As in the so-called "sale on approval," discussed in section 3. DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch. 1 HISTORICAL 2. Though bailments are practically as old as society, the law of bailments as a part of English jurisprudence has been of comparatively recent development. Historical Outline The mere definition of a bailment necessarily shows in itself that bailments must have been more or less frequent even in the most primitive stages of society. Thus, even in the remotest of historical eras, it is easy to imagine a man keeping the goods of another, or carrying them from place to place, or becoming a bailee of the spears of his fellow tribesmen to sharpen them or otherwise re- pair them. It is, therefore, all the more remarkable that the subject of bailments was so slow to assume a place of importance in Eng- lish law. Especially is this true when we consider the part played by bail- ments in the jurisprudence of the world. Thus, frequent mention is made of bailments, and elaborate provisions are made concern- ing them, in the wonderful, ancient Babylonian Code of Ham- murabi.* Even the earliest of the Mosaic Codes, the so-called "JE Code," brief as it is, contains several provisions on the subject. 5 Bailments played a large part in Roman law, and under this re- markable jurisprudence the law of bailments was worked out with a wondrous wealth of detail, particularly in connection with real and consensual contracts. 8 To the Roman law, the English law of bailments is indebted for many of its principles and also in a large measure for its terminology. Of the earlier English writers, Bracton, in the thirteenth century, wrote of bailments. His work, however, was largely a mere re- statement of Roman law, and he made no convincing application of these principles to the practical conditions of his time. Coke 7 * See Cook, The Law of Moses and Code of Hammurabi. 5 Thus in the twenty-second chapter of the ' book of Exodus these expres- sions are found "If a man shall deliver unto his neighbor money or stuff to keep" (verse 7) ; "If a man borrow aught of his neighbor" (verse 14) ; "If it be an hired thing" (verse 15). e See Morey, Outlines of Roman Law, pp. 355-358, 365-368 ; Leage, Roman Private Law, pp. 264-271, 297-300 ; Sandar's Justinian (Hammond) pp. 405- 410, 448-452. 7 Coke, First Inst 89a, 89b. See, also, Rolle, Abr. (1668) tit. "Bailment ;" Brooke, Abr. (1576). An interesting historical treatment of bailments is found in Holmes, The Common Law, pp. 164-205, and also ia 2 Street, Foun- dations of Legal Liability, pp. 251-269. § 2) HISTORICAL 5 (who lived during the last half of the sixteenth and the first halt of the seventeenth centuries), in his Institutes, devotes some space to the liability of the bailee, but his treatment was far from satis- factory. The first real attempt, however, at reducing the law of bailments in English jurisprudence to some degree of order was made by Lord Holt in the celebrated case of COGGS v. BERNARD, 8 decid- ed in .1703. Though the only real point in issue in this case was the liability of a gratuitous bailee specially undertaking the accom- plishment of a certain purpose, yet the endeavors of this great judge to give some definite shape and order to a subject whose future importance he saw served to lay the groundwork for, and give a great impetus fc>, future investigation and research. COGGS v. BERNARD is therefore, considered from a historical stand- point, the leading case on bailments in our jurisprudence. It was largely due to the labors of Sir William Jones, in the latter half of the eighteenth century, that the subject began first to take definite form, and it is upon his "Essay" 8 that all subsequent works upon bailments have been founded. The treatise of Mr. Justice Story, 10 though, was the first logical and reliable exposition of the modern law of bailments in the form in which it now substantially exists. To Lord Holt, Sir William Jones, and Mr. Justice Story, then, is largely due the state in which we now find the law of bail- ments, and upon their work every subsequent writer must draw heavily in his treatment of the same subject. In modern times, the bailment has become, not a mere incidental, personal transaction, but one of tremendous commercial import, and the law of bailments has been developed accordingly, until it is now in practical importance one of the leading subjects in our law. With the increase of commerce and the changed conditions of our marvelously complex life, both in its social and commercial aspects, the law of bailments must and will keep pace. s (1703) COGGS v. BERNARD, 2 M. Raym. (Bng.) 909, 1 Smith, Lead. Cas. (7th Am. Ed.) 369, Dobie Cas. Bailments and Carriers, 1. Among the most interesting cases prior to ' COGGS v. BERNARD are Bonion's Case (1315) Y. B. 8 Edw. II, 275, Fitz. Abr. Detinue, pi. 59; Woodlife's Case (1596) Moore, 462, Owen, 57; the celebrated Southcote's Case (1601) Cro. Eliz. 815, 4 Coke, 836; 2 Bl. Comm. 452; and Williams v. Hide (1628) Palmer, 548, W. Jones, 179. "Jones, Bailm. (1781). io story, Bailm. (1832). 6 DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch. 1 BAILMENT AND SALE DISTINGUISHED 3. In a sale, ownership or title must pass, while possession either may or may not pass ; in a bailment, ownership must not pass, but possession must. It is easy to state the difference in legal effect between a sale and a bailment; the difficulty lies in the practical application of the test to specific transactions. The sale contemplates the passage of title ; the seller divests himself of his ownership in the goods and confers it on the buyer. In a bailment, the owner retains still his owner- ship and transfers to the bailee something far short of title, viz., mere possession. The seller parts with the goods; they are no longer his but the buyer's. The bailor parts, not with the goods, but merely with possession of the goods, so that they are, after the bailment purpose is accomplished, to be returned to him or to such other person as he may direct. 11 According to Benjamin, 12 the following is the test: "When the identical thing delivered is to be returned, though, perhaps, in an altered form, it is a bailment and the title is not changed; but when there is no obligation to return the specific article re- ceived, and the receiver is at liberty to return another thing, either in the same or some other form, or else to pay merely * * * the title is changed, and the transaction is a sale." 1S Thus, when nBretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706; Appeal of Edward, 105 Pa. 103; Dando v. Foulds, 105 Pa. 74; Enlow v. Klein, 79 Pa. 488; Eose v. Story, 1 Pa. 190, 44 Am. Dec. 121; Wheeler & Wilson Manuf'g Co. v. Heil, 115 Pa. 487, 6 Atl. 616, 2 Am. St. Rep. 575; William R. Trigg Co. v. Bucyrus Co., 104 Va. 79, 51 . S. E. 174 ; First Nat. Bank of Concordia y. Mcintosh & Peters Live Stock & Commission Co., 72 Kan. 603, 84 Pac. 535. On a sale, however, the seller of the goods may become a bailee by agreeing by the same contract to store them. Oakley v. State, 40 Ala. 372. See, fur- ther, as to the distinction between a bailment and a sale, Potter v. Mt. Ver- non Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005 ; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848; Gleason v. Beers' Estate, 59 Vt. 581, 10 Atl. S6, 59 Am. Rep. 757 ; Singar Mfg. Co. v. Ellington, 103 111. App. 517. 12 Benj. Sales (6th Am. Ed.) p. 5, note ; and see cases there cited. is Pierce v. Schenck, 3 Hill' (N. T.) 28; Foster v. Pettibone, 7 N. Y. 433, 57 Am. Dec. 530; Mansfield v. Converse, 8 Allen (Mass.) 182; Barker v. Rob- erts, 8 Greenl. (Me.) 101; Brown. v. Hitchcock, 28 Vt. 452; Irons v. Kentner, 51 Iowa, 88, 50 N. W. 73, 33 Am. Rep. 119. If, however, the identical thing is not to be returned, it is a sale or an exchange, according to the nature of the consideration. South Australian Ins. Co. v. Randell, L. R. 3 P. C. 101; Laflin & R. Powder Co. v. Burkhardt, 97 U. S. 110, 116, 24 L. Ed. 973 ; Sturm v. Boker, 150 U. S. 312, 330, 14 Sup. Ct. 99, 37 L. Ed. 1093; McCabe v. Mc- Kinstry, 5 Dill. 509, Fed. Cas. No. 8,667; Ewing v. French, 1 Blackf. (Ind.) 354; Smith v. Clark, 21 Wend. (N. Y.) 83, 34 Am. Dec. 213; Norton v. Wood- § 3) BAILMENT AND SALE DISTINGUISHED 7 wheat is delivered by a farmer to a miller to be ground, and the flour made from that identical wheat is to be returned by the miller, the transaction is very clearly a bailment. 1 * But when the miller in return for the wheat agrees to deliver merely a specified quantity of flour of a designated grade or brand, then it is equally as clear that the transaction is not a bailment, but a sale or exchange. 15 , In the first case, the farmer still owns the wheat, and the flour into which it is converted, so that the miller would have no right as against the farmer to destroy such wheat or flour, nor could he dispose of it to another person. In the second case, however, the farmer passes the title to the wheat, and he cannot demand it or its product again; for he has bartered it, and in its place he has a mere right to receive a certain quantity of flour of a cer- tain type. Accordingly, here the miller could destroy the wheat as soon as it was received by him, and the farmer would have no legal right to complain. ruff, 2 N. Y. 153 ; Crosby v. Delaware & H. Canal Co., 119 N. Y. 334, 23 N. E. 736;' Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623; Butterfield v. Lathrop, 71 Pa. 225 ; Andrews v. Richmond, 34 Hun (N. T.) 20 ; Austin v. Seligman (C. C.j 21 Blatchf. 507, 18 Fed. 519 ; Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311; Marsh v. Titus, 3 Hun (N. Y.) 550; Kaut v. Kessler, 114 Pa. 603, 7 Atl. 586 ; Bailey v. Bensley, 87 111. 556 ; Mack v. Snell, 140 N. Y. 193, 35. N. E. 493, 37 Am. St. Rep. 534.. The fact that the bailee agrees to pay a certain sum, if he does not return the property, does not, per se, convert the bailment into a sale. Westcott v. Thompson, 18 N. Y. 363; SATTLER v. HALLOCK, 160 N. Y. 291, 54 N. E. 667, 46 L-. R. A. 679, 73 Am. St Rep. 686, Dobie Cas. Bailments and Carriers, 9; First Nat. Bank of Elgin v. Schween, 127 111. 573, 20 N. E. 681, 11 Am. St. Rep. 174 ; Genobia Aragon De Jaramillo v. United States, 37 Ct. CI. 208 ; Fleet v. Hertz, 201 111. 594, 66 N. E. 658, 94. Am. St. Rep. 192; Scott Mining & Smelting Co. v. Shultz, 67 Kan. 605, 73 Pac. 903. For a long line of cases distinguishing Bailments and Sales, see 43 Cent. Dig. (Sales) §§ 7-10, columns 36-47; Dec. Dig. (Sales) § 3, pp 1706- 1710. See, also, Tiffany on Sales, § 5. ii Slaughter v. Green, 1 Rand. (Va.) 3, 10 Am. Dec. 488; Inglebright v. Hammond, 19 Ohio, 337, 53 Am. Dec. 430 ; Mallory v. Willis, 4 N. Y. 76. us Hurd v. West, 7 Cow. (N. Y.) 752, note page 758; Smith v. Clark, 21 Wend. (N. Y.) 83, 34 Am. Dec. 213; Norton v. Woodruff, 2 N. Y. 153; Ewing v. French, 1 Blackf-. (Ind.) 353; Buffum v. Merry, 3 Mason, 478, Fed. Cas. No. 2,112 ; Chase v. Washburn, 1 Ohio St. 251, 59 Am. Dec. 623 (distinguish- ing Slaughter v. Green and Inglebright v. Hammond, supra) ; Jones v. Kemp, 49 Mich. 9, 12 N. W. 890. The same rule has been applied to the refining of jeweler's sweepings, Austin *. Seligman (C. C.) 21 Blatchf. 506, 18 Fed. 519 ; to the sawing of logs into boards, Barker v. Roberts, 8 Greenl. (Me.) 101; Pierce v. Schenck, 3 Hill (N. Y.) 28; to the delivery of hides to be tanned, Jenkins v. Eichelberger, 4 Watts (Pa.) 121, 28 Am. Dec. 691. But see Weir Plow Co. v. Porter, 82 Mo. 23 ; Caldwell v. Hall, 60 Miss. 330, 44 Am. Rep. 410. 8 DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch. 1 Grain Elevators The distinction between sales and bailments is most subtle from a legal standpoint and most important from a practical standpoint in the case of grain elevators. Here the question is complicated by the fact that considerations of convenience and economy demand that the grain deposited by each person be not kept separate, but that it be commingled with similar grain of other depositors. The specific contract is in each case controlling, and all relevant sur- rounding facts and circumstances should be considered in doubt- ful cases, in order to arrive at the real intention of the parties. The distinction turns about the question of whether the elevator keeper's control of the grain is of such an order as to negative ownership in any one else. The cases cannot be reconciled, but reason and authority would seem to support the doctrines indi- cated. 16 The mere fact that the keeper of the elevator by custom or con- tract has the right to commingle the grain of several depositors, so that no depositor can receive the identical grain deposited, does not make the transaction any the less a bailment. Each depositor is then the owner of a share in the mass, to be determined by the proportion which his own deposit bears to the entire mass, while the keeper remains a mere bailee of the mass. 17 The situation is more complicated when the keeper has the right to deposit grain of his own in the mass and also to make with- drawals from the mass, and to make substitutions of other grain of like grade for that withdrawn, subject to the proviso that he must at all times keep in his elevator grain equal in quality and quantity to the sum total of all the deposits. This, though, is still a bailment, 18 and the relation attaches to the grain through all the mutations of individual particles in the elevator. The keeper could not here destroy the grain in the elevator, nor could he dispose of is For a discussion of the question and review of the cases, see article on "Grain Elevators" in 6 Am. Law Rev. 450. For cases, see 43 Cent Dig. (Sales) § 11, columns 48-51, 17 Dec. Dig. (Sales) 4 (5), p. 1710. 17 Mayer v. Springer, 192 111. 270, 61 N. E. 348; Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69, 10 Ann. Cas. 1065; State v. Cowdery, 79 Minn. 94, 81 N. W. 750, 48 L. R. A. 92 ; Bryan v. Congdon, 54 Kan. 109, 37 Pac. 1009 ; Mill- hiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760 ; Greenleaf ~ v. Dows (C. C.) 8 Fed. 550; Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St Rep. 706. is Sexton v. Graham, 53 Iowa, 181, 4 N. W. 1090; JAMES v. PLANK, 48 Ohio St. 255, 26 N. E. 1107, Dobie Cas. Bailments and Carriers, 14; McGrew v. Thayer, 24 Ind. App. 578, 57 N. E. 262; Andrews v. Richmond, 34 Hun (N. Y.) 20; Odell v. Leyda, 46 Ohio St. 244, 20 N. E. 472; Hall v. Pillsbury, 43 Minn. 33, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St Rep. 209. § 3) BAILMENT AND SALE DISTINGUISHED 9 any of the grain save his own without substituting similar grain therefor. This therefore implies, rather than negatives, the owner- ship of some one other than the elevator keeper. But when the obligation imposed on the elevator keeper by the receipt of the grain is merely to return grain of a certain quantity and quality, then the transaction cannot be a bailment. 18 The same is true when the keeper has the right to use any and all of the grain on payment therefor, either in money or other grain, without any duty of substitution of other grain therefor in the elevator ; 20 and- also when the keeper has the option whether he shall return the grain delivered or pay for the grain. 81 In all of these cases, the keeper could destroy the grain when received without impairing the legal rights of the depositor, and this is here inconsistent with the legal notion of a bailment. It might be remarked that in doubtful cases the older decisions are somewhat inclined to hold the transaction a sale, while the trend of the later cases has decidedly favored the holding that such transactions are bailments and that the essential nature of the transaction, depending on the intention of the parties, is not changed merely by modern methods of handling the storage of grain. Mutuum In this connection may be noticed, for the purpose of distinguish- ing it, the "mutuum" of the Roman law. A mutuum was a de- livery of goods which were expected to be consumed by the recip- ient, and for which other goods of the same kind were to be re- turned to the owner. It is clear, from what has been said, that, since title to the goods in such cases would immediately vest in i» The principle here is the same as when a certain amount of the manu- factured product (e. g. flour) is to be given for the wheat. See cases cited in note 15. See, also, O'Neal v. Stone, 79 Mo. App. 279. 20 Savage v. Salem Mills Co., 48 Or. 1, 85 Pac. 69, 10 Ann. Oas. 1065 ; Cloke v. Shafroth, 137 111. 393, 27 N. E. 702, 31 Am. St. Rep. 375; Johnston v. Browne, 37 Iowa, 200 ; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623 ; Rahilly v. Wilson, 3 Dill. 420, Fed. Cas. No. 11,532; McCabe v. McKinstry, 5 Dill. 509, Fed. Cas. No. 8,667. 2i Barnes v. McCrea, 75 Iowa, 267, 39 N. W. 392, 9 Am. St. Rep. 473; O'Neal v. Stone, 79 Mo. App. 279 ; Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005. • See, also, cases cited in preceding note. In State v. Rie- ger, 59 Minn. 151, 60 N. W. 1087, under the contract, the elevator man could exercise his option and acquire the right to use the grain only when the owner had presented the ticket and been paid for the grain. The transaction was held to be a bailment with option to elevator man to convert it into a sale when the ticket was presented. 10 DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch. 1 the recipient, such a transaction would in no sense be a bailment, but is a sale or exchange. 22 Sale on Approval — Sale or Return Finally, in this connection should be noted the so-called "sale on approval." Here goods are delivered to a party, but title to the goods does not vest in him until he has in some way manifested his approval. The result is that such person acquires possession forthwith, while he may or may not acquire title by his approval at a later date. It is therefore clear that such a transaction is not in its inception a sale at all, but a mere bailment, and remains such until it is converted into a sale by the approval. The so-called "sale on approval" is therefore a mere bailment, with the option in the bailee by his approval to convert the bailment into a sale. 28 When, however, the title passes immediately, but the buyer has the option to defeat the sale by returning the article, this is a sale originally and not a bailment. This is usually called a "sale or return." 2 * CLASSIFICATION OF THE ROMAN LAW 4. According to the classification of the Roman law, bailments were divided into six kinds: (a) Depositum. (b) Mandatum. (c) Commodatum. (d) Mutuum. (e) Pignus. (f) Locatio. 22 In regard to the Roman mutuum, Galus says : "This chiefly relates to things which are estimated by weight, number, or measure, such as money, wine, oil, corn, bronze, silver, gold. We transfer our property in these, on condition that the receiver shall transfer back to us at a future time, not the same things, but other things of the same nature; wherefore this contract is called 'mutuum,' because thereby meum becomes tuum." Poste Gaius, III. §,90. ) as Tiffany on Sales, § 45 ; American Sales Act, § 19, rule 3 (2) ; Sargent v. Gile, 8 N. H. 325; Goss Printing Press Co. v. Jordan, 171 Pa. 474, 32 Atl. 1031 ; Hart v. Carpenter, 24 Conn. 427. Where two colts were delivered for keeping, and to be sold by bailee if possible, If not to be returned, the contract was held to be one of bailment. Middleton v. Stone, 111 Pa. 589, 4 Atl. 523. So an option may reside in the bailor to make the transaction a sale ; but, unless the option is exercised, the bailment relation will continue. Weir Plow Co. v. Porter, 82 Mo. 23. 2* Tiffany on Sales, § 46; American Sales Act,' § 19, rule 3 (1); Gay v. Dare, 103 Cal. 454, 37 Pac. 466 ; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct 99, 37 U Ed. 1093 ; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552. § 4) CLASSIFICATION OF THE ROMAN LAW 11 (a) DEPOSITUM — A depositum is a bailment of goods for mere custody, without recompense. (b) MANDATUM — A mandatum is a bailment of goods for the purpose of having some more or less active services per- formed about them by the bailee without recompense. (c) COMMODATUM — A commodatum is a gratuitous bailment of goods for use by the bailee. (d) MUTUUM — A mutuum is a delivery of goods, involving, not the return of the identical goods lent, but their replace- ment by other goods of the same kind. At common law, such a transaction is regarded as a sale or exchange, and not a bailment. (e) PIGNUS — A pignus, pledge, or pawn is a bailment of goods as security for some debt or engagement, accompanied by a power of sale in case of default. (f) LOCATIO — A locatio, or hiring, is a bailment for reward, and may be: (1) Locatio rei, or the hired use of a thing. (2) Locatio operis, or hired services about a thing, which includes : (i) Locatio operis faciendi, or hired work and labor about a thing. (ii) Locatio custodiae, or hired custody of a thing. (iii) Locatio operis mercium vehendarum, or hired trans- portation of a thing. This classification of the Roman law is unquestionably of great value, though it has been severely criticised and is open to a num- ber of objections. Thus it is not strictly a classification at all, but a mere enumeration of different kinds of bailments, with no attempt to arrange them into classes showing their relations to one another. The Roman classification, too, has been criticised as being unneces- sarily refined. It is also true that the distinctions and differences it draws afford no satisfactory test of differences in the legal in-, cidents attached to the various kinds of bailments. The termi- nology has no doubt resulted with us in some inconsistencies and not a few obscurities. This classification and its terminology, however, have played no small part in shaping and coloring our own law on the subject, so- that no writer can afford to ignore it. The relation of the Roman classification and terminology to that adopted by modern writers, as one evidence of the impress of the Roman law on the common law in this connection, will more fully appear as the subject of bail- ments is developed. 12 DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch. 1 MODERN CLASSIFICATION WITH REFERENCE TO BENEFIT 5. The rights and liabilities of the parties to a bailment depend primarily upon which party the bailment is intended to benefit. Bailments may therefore be divided into three classes : (a) Bailments for the bailor's sole benefit, including (1) Depositum, and (2) Mandatum. (b) Bailments for the bailee's sole benefit, including (1) Commodatum. (c) Bailments for mutual benefit of both bailor and bailee, in- cluding (1) Pignus, and (2) Locatio. Bailments are sometimes classified as: (1) Gratuitous. (a) Bailments for bailor's sole benefit. (b) Bailments for bailee's sole benefit. (2) Nongratuitous. (a) Bailments for mutual benefit of bailor and bailee. This classification begins where that of the Roman law ends. It seeks not merely to enumerate or catalogue, but also to arrange, the enumerated classes according to some rational scheme, show- ing the relations of each class to the others. A basis of classifica- tion is therefore sought, not merely because it is arbitrary or con- venient, but because it in itself determines the differences and sim- ilarities in the legal incidents which the law attaches to bailments of the classes in question. This basis is found in the practical the- ory of benefit. Every bailment is created for the sole purpose of benefit to the parties to the transaction. The duties and responsibilities imposed by law upon the bailor or bailee, as the case may be, are according- ly determined by, and are in proportion to, the benefit which such party receives from the bailment. A necessarily exhaustive classi- fication on this theory is therefore made by dividing bailments on the score of benefit into three classes : (a) When the bailor alone receives such benefit, (b) When the bailee alone receives the ben- efit, (c) When both the bailor and the bailee receive a benefit. This classification is consistent with that of the Roman law, and no class under the scheme of benefit, cuts across any single class § 6) CLASSIFICATION OF LOCATIO OPEBIS BAILMENTS 13 enumerated in the Roman scheme. A comparison of the two class- ifications will show that the "depositum" and "mandatum" confer a benefit on the bailor alone, so they are both (a) bailments for the bailor's sole benefit ; the "commodatum" bestows benefit solely on the bailee, so that it falls under (b) bailments for the bailee's sole benefit; the "pignus" and "locatio" contemplate a benefit to both parties to the relation, and they are therefore included under (c) bailments for the mutual benefit of both the bailor and bailee. Gratuitous and Nongraiuitous Bailments Bailments are sometimes classified as (1) gratuitous and (2) non- gratuitous. By gratuitous is meant gratuitous, on the score of benefit, as to either party. Gratuitous bailments, therefore include (a) bailments for the bailor's sole benefit and (b) bailments for the bailee's sole benefit. Nongratuitous bailments are (c) bailments for the mutual benefit of both the bailor and bailee. As the general classification of bailments into three great classes on the score of benefit forms the analysis in accordance with which the whole subject of bailments is developed in this book, no further comment on this classification is here required. CLASSIFICATION OF LOCATIO OPERIS BAILMENTS AS ORDINARY AND EXTRAORDINARY 6. Locatio operis bailments, or hired services about a thing, are sometimes classified as : (a) Ordinary bailments. (b) Extraordinary or exceptional bailments; (1) Innkeepers. (2) Common carriers of goods. (3) Post office department. Generally, the question of benefit alone determines the rights and duties of the parties to the bailment relation. There are some bail- ments, however, in which other considerations enter into this prob- lem. These are bailments of such a character that they are public in their nature and are so closely connected with the interests of the public that the law has seen fit to single such bailments out and to affix distinctive and unusual rights and duties to the rela- tion. Thus the innkeeper and common carrier of goods, in professing to serve all who properly apply, pursue a public calling, while the post office department, charged with the transportation of the mails, is a branch of the government. Public policy, therefore, de- 14 DEFINITION AND CLASSIFICATION OF BAILMENTS (Ch.l mands in such cases exceptional standards of responsibility not im- posed on ordinary bailees. These unique considerations have thus set apart the innkeeper, common carrier of goods, and the post office department. They are therefore made the subject of separate treatment. 7. GRAPHIC CHART A. Gratuitous f"l. For the Bailor's Sole Benefit 1.2. For the Bailee's Sole Benefit { (a) Deposltum — Gratuitous Custody of a Thing. (b) Mandatum— Gratuitous Services about a Thing. {(a) Commodatum — Gratuitous Loan of a Thing for Use. '1. Pignus, or Fledge. B. Nongratuitous - 2. Locatio, or Hir- ing '(a) Locatio Rei (Hired Use of a Thing). .(b) Locatio Operis (Hired Serv- ices about a Thing) (1) Ordinary.- '[1] Locatio Custodial (Hired Custody of a Thing). [2] Locatio Operis Faciendi (Hired Work and La- bor about a Thing). [3] Locatio Operis Mercium Ve- hendarum (Hir- ed Carriage of a Thing). {[1] Innkeepers. [2] Common Carriers of Goods. [3] Post Office De- partment. Ch. 2) GENERAL PRINCIPLES COMMON TO ALL BAILMENTS 15 CHAPTER II GENERAL PRINCIPLES COMMON TO ALL BAILMENTS 8. Introductory. 9. Bailment of Personalty Only. 10. Delivery. 11. Acceptance. 12. What Title Bailor must Have. 13. Interest of Bailor and Bailee in the Balled Goods. 14. Estoppel of Bailee to Deny Bailor's Title. 15. Bailor Must Not Expose Bailee to Danger without Warning. 16. Care to be Exercised by the Bailee. 17. Presumption of Negligence from Loss or Injury. 18. Bailee Must Act in Good Faith. 19. Redelivery of Bailed Goods by, the Bailee. 20. Termination of the Bailment. INTRODUCTORY 8. There are certain circumstances, as we have seen, that are essen- tial to the existence of a bailment, just as there are certain legal incidents or general principles that are common to all bailments. In addition, the law prescribes certain rights and duties as in- hering in the notion of a bailment; but these rights and duties may be varied at will by the agreement of the par- ties, provided this agreement is not in contravention of positive law or a sound public policy. It is the purpose of the present chapter to discuss the circum- stances essential to the existence of a bailment, the general prin- ciples of law common to all bailments, and finally the rights and duties of the parties to a bailment, when these rights and duties are not enlarged or diminished by special contract. The very definition of a bailment implies that there are certain essential features that are present in all bailments and that the presence of all these features makes the relation a bailment, as distinguished from the various other relations known to the law. The plainest of common sense would therefore seem to demand that there should first be a discussion of the general properties that are found alike in all bailments, before we take up the unique features that distinguish one class of bailments from another. This not only makes for clearness and accuracy, but obviates the necessity 16 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Chi 2 of a repetition of these general features in the treatment of each of the various classes of bailments. In addition, the law prescribes certain rights and duties as at- taching to the bailor or bailee merely by virtue of the fact that they are parties to the bailment relation, unless the parties have them- selves made some different provision for these rights and duties. Certain general observations on this subject, too, should precede any detailed treatment of the rights and duties of the bailor and bailee, as affected by the specific class to which the bailment in question belongs. General Principles of Contract and Agency Apply Bailments are in the great majority of instances, though not always, created by express contract. 1 In such cases, the general rules of contract apply and need no discussion here. Thus, as to the competency of the parties to contract, 2 the construction or validity s of the contract, the effect of fraud, 4 duress, etc., no unique considerations affect the application of the same general rules that would govern other classes of contracts. Again, bailment contracts may be, and frequently are, made, not by the parties acting directly, but through the intervention of agents." Here the usual rules of agency can be invoked and the bailment contract, just as any other contract, made in the name of the principal by the agent acting within the scope of his au- thority is just as binding on the principal as if made by him in person. 8 When the agent, however, accepting the goods, acts i Post, §§ 22, 33, 45, 71. a Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Kep. 716 ; Mutual Life Ins. Co. v. Hunt, 79 N. T. 541; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Scanlan v. Cobb, 85 111. 296 ; Shoulters v. Allen, 51 Mich. 531, 16 N. W. 888 ; Hagebush v. Ragland, 78 111. 40. s Singar Manuf g Co. v. Converse, 23 Colo. 247, 47 Pac. 264 ; Newhall v. Paige, 10 Gray (Mass.) 366. i Camp v. Dill, 27 Ala. 553. b City Bank of New Haven v. Perkins, 29 N. Y. 554, 86 Am. Dee. 332 ; Brown v. Warren, 43 N. H. 430 ; Boynton v. Payrow, 67 Me. 587 ; McCready v. Haslock, 3 Tenn. Ch. 13 ; Lloyd v. Barden, 3 Strob. (S. C.) 343. « Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Blake v. Kimball, 106 Mass. 115, 116 ; Stevens v. Boston & M. B., 1 Gray (Mass.) 277 ; Macklin v. Frazler, 9 Bush (Ky.) 3; Schouler, Bailm. (2d Ed.) §§ 19, 30, 33; Story, Bailm. § 55; First Nat. Bank of Carlisle v. Graham, 79 Pa. 106, 21 Am. Kep. 49. In the case of Lloyd v. Barden, 3 Strcb. (B. C.) 343, it was held that, to charge a bailee with an article lost, it is not necessary that, in every case, the deliv- ery should have been to him individually, or to one expressly or specifically authorized to receive for him ; but an agency to receive may be implied in the same manner as such agency may be implied in relation to articles which were to be carried for hire. "The master and owner of a house or warehouse, allowing his servants or clerks to receive for custody the goods of another, and § 8) INTBODUGTORY IT without authority, the agent himself is then the bailee, and the prin- cipal is not bound by the transaction. 7 Infant Bailees The subject of parties as bailees who are incompetent to con- tract requires brief mention here. The typical and most important case is that of an infant. An infant's contracts are, as a rule, void- able at his option, 8 and the bailment contract is no exception to this rule. When the bailment is not one created, by contract, as when one finds lost, goods and takes them into his possession, the infant may become a bailee by the same acts as a person sui juris. Again, the infant is liable for his torts. 9 This raises the interest- ing and often difficult question of the liability of the infant under a bailment created by contract. As to mere failure to carry out the terms of the contract, or even a breach of the bailment con- tract as a contract, the infant can escape liability by pleading infancy. 10 Further, so long as he keeps within the terms of the bailment, using the bailed chattel only for the purposes agreed on, the infant is not liable for any loss or damage due merely to his want of skill or experience provided he has no wrongful intent. 11 But it is said that the disability of the infant is to be used by him as a shield and not as a sword. Accordingly, when the infant de- especially if the practice be general and unlimited, as is the case with banks in relation to special deposits, will be considered the bailee of the goods so received, and will incur the duties and liabilities belonging to that relation. Not so if the servant, secretly, and without the knowledge, express or implied, of the master, he not having authorized or submitted to the practice, re- ceives the goods for such purpose; for no man can be made the bailee of another's property without his consent." Parker, C. J., in Foster v. President, etc., of Essex Bank, 17 Mass. 479, 498, 9 Am. Dec. 168. And see Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. (U. S.) 604, 650, 19 L. Ed. 1008; El- liot v. Abbot, 12 N. H. 549, 37 Am. Dec. 227 ; Farrar v. Oilman, 19 Me. 440, 36 Am. Dec. 766; McHenry v. Bidgely, 2 Scam. (111.) 309, 35 Am. Dec. 110; Everett v. United States, 6 Port. (Ala.) 166, 30 Am. Dec. 584. i Meech v. Smith, 7 Wend. (N. Y.) 315. See, also, Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168. s Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229 ; Sanger v. Hlbbard, 104 Fed. 455, 43 C. C. A. 635; Lansing v. Michigan Cent. R. Co., 126 Mich. 663, 86 N. W. 147, 86 Am. St. Rep. 567. For extended collection of cases, see 22 Cyc. p. 620. o Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207 ; Saum v. Coffelt, 79 Va. 510 ; Sikes v. Johnson, 16 Mass. 389 ; cases collected 22 Cyc, 618, 619. io Caswell v. Parker, 96 Me. 39, 51 Atl. 238; Prescott v. Norris, 32 N. H. 101 ; Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510 ; Monumental Bldg. Ass'n No. 2 v. Herman, 33 Md. 128. ii Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350; Young v. Muhling, 4& App. Div. 617, 63 N. Y. Supp. 181 ; CHURCHILL v. WHITE, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64, Dobie Cas. Bailments and Carriers, 19; Hill v. Becker, 9 Ky. Law Rep. 619. Dob.Bailm. — 2 18 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 parts from the purpose for which the bailment was created and to that extent exercises an unlawful dominion over the bailed chattel, he is then guilty of the tort of conversion and his infancy is no defense. 12 Thus an infant, hiring a horse to go to one place, who goes on a much longer journey to another place, is liable in spite of his infancy. 18 Again, for his willful and intentional wrong in beating or otherwise misusing the horse which he had hired, the infant would also be responsible. 14 Nor would a plea of infancy excuse the infant bailee's refusal to surrender the bailed chattel after the termination of the bailment. 15 Corporations and Partnerships It is probably already true, or at least soon will be, that in a majority of concrete cases the bailor or bailee is a corporation. The corporation, acting within its corporate powers, has the fullest right to become either a bailor or bailee. 18 Here, of course, resort must be had to the large body of legal doctrines governing these artificial entities that we call corporations. Partnerships, in a sense, stand midway between individual per- sons and corporations. Here again the partnership may become a bailor or bailee, with the rights and duties thereto attached. 17 The law of partnership is thus called into play, probably most frequent- ly, in determining here, as elsewhere, to what extent the acts of one of the partners are binding in the partnership. Liability of the Parties under Special Contract As we have seen, the law affixes certain rights and duties to the bailment relation, when the parties have not themselves made pro- visions on the subject. 18 These rights and duties, though, are peculiarly within the control of the bailor and bailee, who may by their contract enlarge or diminish them at will, subject only to the 12 Freeman v. Bowland, 14 R. I. 39, 51 Am. Kep. 340. is Towne v. Wiley, 23 Vt 355, 56 Am. Dec. 85. i* Moore v. Eastman, 1 Hun (N. X.) 578 ; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. See, also, CHURCHILL v. WHITE, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64, Dobie Cas. Bailments and Carriers, 19. ib Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; CHURCHILL v. WHITE, 58 Neb. 22, 78 N. W. 369, 76 Am. St Rep. 64, Dobie Cas. Bailments and Car- riers, 19. i« Duncomb v. New York, H. & N. R. Co., 84 N. Y. 190; Baldwin v. Can- field, 26 Minn. 43, 1 N. W. 261, 276 ; Lloyd v. West Branch Bank, 15 e&. 172, 53 Am. Dec. 581; Combination Trust Co. v. Weed (C. C.) 2 Fed. 24; Chou- teau v. Allen, 70 Mo. 290 ; Lehman v. Tallassee Manufg Co 64 Ala. 567. it George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Hopkins v. Thomas, 61 Mich. 389, 28 N. W. 147. is Story, Bailm. § 10; President, etc., of Conway Bank t. American Exp. Co., 8 Allen (Mass.) 512, 516. ] 8) INTRODUCTORY 1$ limitation that this contract must not be illegal or against public policy. 19 Questions in this connection are concerned chiefly with how far the bailee may by contract restrict his liability; the law does not prevent him from thus enlarging it indefinitely. 20 That a bailee would not be permitted by special contract to exempt himself from liability for his fraud or its equivalent, is perfectly clear. 21 The same would also be true as to his active wrongdoing. Nor could he thus contravene a well-settled rule of law, as, for example, by attempting to stipulate that he would not be liable for the acts of his agents, even though committed within the scope of their au- thority. 22 The question of the greatest difficulty is whether a bailee may validly contract against responsibility for his negligence, or failure to exercise the proper degree of care, varying in the different class- es of bailments, ordinarily imposed upon him by law. That the common carrier 23 and innkeeper, 2 * who pursue public callings, cannot do this, is well settled. It would seem, though, that an ordinary bailee may thus relieve himself of responsibility for his negligence, 26 or mere negative failure to exercise a specific degree of care, as distinguished from his fraud or active wrongdoing. i» Ames v. Belden, 17 Barb. (N. Y.) 515; Kettle v. Bromsall, Wlllea, 118; Trefftz v. Canelli, L. E. 4 P. C. 277; Parker v. Tiffany, 52 111. 286; Remick v. Atkinson, 11 N. H. 256, 35 Am. Dec. 493; Vaughan v. Webster, 5 Har. (Del.) 256. But see, as to a carrier's contract to carry "safely," Austin v. Manchester, S. & L. By. Co., 5 Eng. Law & Eq. 329 ; Shaw v. York & N. M. Ry. Co., 13 Q. B. 347; Wells v. Steam Nav. Co., 8 N. Y. 375; Pennsylvania R. Co. v. McCloskey's Adm'r, 23 Pa. 526. The liability of a bailee, however, is not to be enlarged or restricted by words of doubtful meaning. The in- tent to vary the liability imposed by law must clearly appear. Trefftz v- Canelli, L. R. 4 P. C. 277; Belden v. Perkins, 78 111. 449. 20 Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093; Reinstein. v. Watts, 84 Me. 139, 24 Atl. 719 ; Rohrabacher v. Ware, 37 Iowa, 85. 2i Story, Bailm. § 32; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455 ; Coffield v. Harris, 2 Willson, Civ. Cas. Ct App. (Tex.) $ 315 ; Alex- ander v. Greene, 3 Hill (N. Y.) 9. 22 Peet v. Railway Co., 10 H. L. Cas. (Eng.) 473, 494. 23 Post, p. 393. . , 24 Post, § 98. , /> * '' 25 The ordinary bailee is under no legal duty to enter upon the bailment, and, being able to refuse, should be allowed to prescribe his terms, unless, as indicated, he seeks to escape from his frstud or active wrong. Gashweiler v. Wabash, St. L. & P. Ry. Co., 83 Mo. 112,^3 Am. Rep. 558 ; Wells v. Steam Nav. Co., 8 N. Y. 375, Alexander v. Greene, 3 Hill (N. Y.) 9, r Contra, Lan- caster County Nat. B)ank v. Smith, 62 Pa. 47. On this subject, see also 1 Hutchinson on Carriers, § 40 ; Bridwell v. Moore, 8 Ky. Law Rep. 535 ; Mem- phis & C. R. Co. v. Jones, 2 Head (Tenn.) 517 ; Coffield y. Harris, 2 Willson, Civ. Cas. Ct. App. (Tex.) $ 315. 20 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 BAILMENT OF PERSONALTY ONLY 9. The subject-matter of the bailment must be personalty. Personal property alone can be the subject-matter of a bailment. There can be no bailment of real estate. 28 The relation, in the realm of real property, corresponding to that of bailment in personal property, is that of landlord and tenant, created by a lease; but, owing to striking differences between real and personal property, the two relations present many differences in legal effect. There are expressions in some of the early cases to the effect that only corporeal perso'nal property could be the subject-matter of a bailment. It is now well settled, however, that there may be a bailment of incorporeal as well as corporeal personalty, of choses in action as well as of choses in possession. 27 Thus there may be a bailment of negotiable notes, bonds, corporate stock, and insurance policies, as well as of horses, watches, or furniture. 28 Since a bailment requires first a delivery of the goods to the bailee, there can be, technically speaking, no such thing as a bail- ment of goods hot yet in existence. 29 There may be, however, a valid present contract to create a future bailment in goods not then in existence. The bailment relation might then attach to the goods when they did come into existence, 30 subject, perhaps, to the rights of third persons in the goods which may have intervened. 2» A bailment can exist only as to a chattel, not as to realty. Williams v. Jones, 3 Hurl. & C. 256; Coupledike v. Coupledike, Cro. Jac. 39. And ci. Dewey v. Bowman, 8 Cal. 145. 27 McLean v. Walker, 10 Johns. (N. Y.) 471; Jarvis v. Rogers, 15 Mass. 389; White v. Phelps, 14 Minn. 27 (Gil. 21), 100 Am. Dec. 190; Appleton v. Donaldson, 3 Pa. 381 ; Loomis v. Stave, 72 111. 623 ; Cowdrey y. Vandenburgh, 101 U. S. 572, 25 L. Ed. 923. Any kind of personal property, including cur- rent money and even a .chose in action, if in existence, may be the subject of a bailment. Van Wagoner v. Buckley, 148 App. Div. 808, 133 JN. Y. Supp. 599. 28 Hanna v. Hoi ton, 78 Pa. 334, 21 Am. Rep. 20; Walker v. Staples, 5 Allen (Mass.) 34; Shaw v. Wilshire, 65 Me. 485; Hudson v. Wilkinson, 45 Tex. 444 ; In re Rawson, 2 Low. 519, Fed. Cas. No. 4,837; Biebinger v. Continental Bank, 99 U. S. 143, 25 L. Ed. 271. Bailments of such property are usually pledges and will be discussed at length under that subject. Post, p. 187. 2 8 Gittings v. Nelson, 86 111. 591; Smithurst v. Edmunds, 14 N. J. l£q. 408. so Story, Bailm. § 294. Thus, in Macomber v. Parker, 14 Pick. (Mass.) 497, a brickmaker agreed with the lessees of a brickyard in which he was manu- facturing bricks that they should hold the bricks to be made as security for money advanced by them. It was held that the bricks were pledged as fast as made. See, also, Cushman v. Hayes, 46 111. 145; Smithurst v. Edmunds, 14 N. J. Eq. 408 ; Appeal of Collins, 107 Pa. 590, 52 Am. Kep. 479 ; Smith ▼.Atkins, 18 Vt, 461. § 10) DELIVBBT 21 DELIVERY 10. To constitute a bailment, there must be a delivery, actual or constructive, of the goods or chattels. The term "bailment" is derived from the Norman-French word "bailler," meaning to deliver. Though not every delivery creates a bailment, yet delivery remains the most important element both in the definition and in the practical aspect of a bailment. De- livery, or transfer of possession, is absolutely essential to the crea- tion of the bailment. 81 Where there is no delivery, there can be no bailment. Delivery, therefore, marks the real inception of the bailment, which begins from the time when possession is trans- ferred to the bailee. Accordingly, a mere executory contract to de- liver goods, technically speaking, is alone no more effective in creat- ing a bailment than is a mere agreement to marry in creating the marriage. Delivery thus is seen as more vivid and more real than any other aspect of the bailment. Delivery may be either actual or constructive. Actual delivery contemplates the real physical transfer of the manual control of the goods or chattels by the bailor to the bailee. 82 Thus, where one places his razor in the hands of a barber to be sharpened and re- turned to him, this is an actual delivery about which there could be little question. A constructive delivery, in its broad sense, con- sists of such acts which, though falling short of actual delivery, are held, in the contemplation of the law, to be the equivalent of an actual delivery in legal effect. 83 Thus, when goods have been shipped by a carrier, the transfer of the document known as a "bill of lading," which stands for the goods, and is therefore legally equivalent to an actual delivery of the goods, is a constructive de- al Trunick v. Smith, 63 Pa. 18 ; Houghton v. Lynch, 13 Minn. 85 (Gil. 80) ; Sherman v. Commercial Printing Co., 29 Mo. App. 31 ; Northcutt v. State, 60 Tex. Cr. R. 259, 131 S. W. 1128, 31 L. R. A. (N. S.) 822; Bertig v. Nor- man, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943 ; Sherman v. Hicks, 14 N. M. 439, 94 Pac. 959. 32 Owens v. Kinsey, 52 N. C. 245; Fletcher v. Ingram, 46 Wis. 191, 50 JN. W. 424 ; Samuels v. McDonald, 33 N. Y. Super. Ct. 211. as Story, Bailm. § 55 ; Whitaker v. Sumner, 20 Pick. (Mass.) 399 ; Tuxworth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479. The property may be regarded as in bailee's possession, without any actual removal, if it passes under bailee's exclusive control. Dillenback v. Jerome, 7 Cow. (N. T.) 294; Blake v. Kim- ball, 106 Mass. 115. See, also, Schneider v. Dayton, 111 Mich. 396, 69 N. W. 829. 22 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 livery. 8 * So, also, when the seller of goods continues in possession of them with the buyer's consent, this is a constructive delivery, and is just as effective in making the seller a bailee as if the seller had actually delivered the goods to the buyer, who, in turn, actually redelivered them to the seller. 85 Actual delivery is, of course, the most perfect form known to the law, and is always the safest. But such a delivery is in many cases either impossible or at least impracticable. In such cases con- structive delivery is frequently resorted to. Modern decisions show an increasing tendency to regard constructive delivery with favor and to extend its meaning, particularly when the rights of innocent third parties are not thereby jeopardized. The always prominent question of delivery becomes specially important in pledges, where it is treated, particularly as to certain classes of incorporeal proper- ty, at some length. The control which a servant exercises over the goods of his mas- ter, with the latter's consent, does not make the servant a bailee of the goods. vThe master is here treated as being still in posses- sion of the goods, and the servant's control, falling short of an inde- pendent possession, is designated as mere custody^ Thus, a butler cleaning his master's silver has merely the custody of the silver, possession still remaining in the master. The question whether a person exercising a measure of control over the goods of another, is a bailee having possession or a servant with mere custody be- comes highly important in distinguishing between the common- law crime of larceny and the statutory crime of embezzlement. 1 " ACCEPTANCE « 11. A great majority of bailments (though not all) are created by mutual contract of the parties. In every bailment, though, there must be an express or implied acceptance by the bailee of the goods constituting the subject-matter of the bailment. »* Post, pp. 196, 211-214, 418. so Oakley v. State, 40 Ala. 372. »« See Clark & Marshall on Crimes, §§ 316-317 ; Rex v. Harvey, 9 Car. & P. 353; Jenkins v. State, 62 Wis. 49, 21 N. W. 232; United States v. Clew, 4 Wash. C. C. 700, Fed. Cas. No. 14819. One holding as servant for another is not bailee. COMMONWEALTH v. MORSK, 14 Mass. 217, Dobie Cas. Bail- ments and Carriers, 51; Dillenback v. Jerome, 7 Cow. (N. T.) 294; JLudden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45 ; Warren v. Leland, 9 Mass. 265 ; Wa- terman v. Robinson, 5 Mass. 303. § 11) ACCEPTANCES 23 Bailment Not Always Created by Contract While in the overwhelming majority of instances the bailment relation is founded on the mutual agreement of both the bailor and bailee, in exceptional cases bailments may exist without such an agreement. One may become a constructive bailee in the absence of any contract between the parties. 87 It is not essential that the bailee should have obtained possession by the consent of the owner, or even with the intention of holding the goods as a bailee. J3utj_ in many cases, the law, from considerations of public policy, im- poses the liability of a bailee upon one who has, without private agreement, come into possession of the goods of another. T hus, the finde r of lost goods, who takes them into his posses- sion. becomes a ba ilee of the goods. 88 A sheriff, levying on the goods of the debtor and taking possession of them, is also a bailee. 38 The same would be true of marine salvors *° of goods, and also of one who received and retained possession of goods addressed to another. 41 Many writers, in such instances, say that the consent of the parties is implied and that there is thus a contract. The owner might well prefer that the goods should remain lost rather than that they should come into the hands of the particular per- son who found them. The finder, too, may have been in ignorance of the fact that he had incurred the duties of a bailee. To say that the law, under certain circumstances, imposes an affirma- 87 Post, |§ 22, 45. A contract inter partes is not essential to a bailment ; but it is the element of lawful possession, however- created, and duty to ac- count for the thing as the property of another, that creates the bailment. Burns v. State, 145 Wis. 373, 128- N. W. 987, 140 Am. St. Rep. 1081. 88 One who finds a thing is not compelled, to assume its custody ; but, if he voluntarily does so, he will be held by the law to be a depositary, and must exercise the care due from such a bailee. In Cory v. Little, 6 N. H. 213, 25 Am. Dec. 458, it was held that one who finds a horse wrongfully in his field may turn it into the highway ; and, if it stray away, he will not be responsible for it. In Isaack v. Clark, 2 Bulst. 306, Lord Coke said: "If a man finds goods, an action on the case lies .for his 111 and negligent keeping of them, but not trover or conversion, because this is but a nonfeasance." I According to St. Germain (Doct. & Stud. Dial. 2, c. 38), "if a man finds goods/ of another, if they be after hurt or lost by willful negligence, he shall bej charged to the owner. But, if they be lost by other casualty, * * * I think he be discharged." As to this point, see Dougherty v. Posegate, 3 Iowa, 88; Merry v. Green, 7 Mees. & W. 623, 631; People v. Cogdell, 1 Hill (N. Y.) 94, 37 Am. Dec. 297; People v. Anderson, 14 Johns. (N. T.) 294, 7 Am. Dec. 462. so Phillips v. Bridge, 11 Mass. 242 ; Tyler v. Dlmer, 12 Mass. 163 ; Blake, v. Kimball, 106 Mass. 115, 116; Parrott v. Dearborn, 104 Mass. 104; Jenner v. JolifEe, 6 Johns. (N. Y.) 9 ; Burke v. Trevitt, 1 Mason, 96, 100, Fed. Cas. No. 2,163. *<>Post, f 45. . « Newhall v. Paige, 10 Gray (Mass.) 366. 24 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Cll. 2 tive duty upon a person does not necessarily mean that he agrees to perform that duty. An obligation is hardly contractual when imposed without the consent, of the parties. It therefore seems a perversion of language to say, in cases such as that indicated, that a bailment is always the result of a contract. Acceptance by the Bailee There must, however, be an acceptance by the bailee of the goods forming the subject-matter of the bailment, before there can be any bailment. 42 The law does not insistently thrust the lia- bilities Of a bailee upon one without* his knowledge or consent. Such acceptance may be express or implied, but until there is some- thing to show notice or knowledge, until the facts, at least, are known by the person, the law will not constitute him a bailee.* 8 Thus, where goods come into one's possession without his knowl- edge, he is in no sense a bailee ; but if, after acquiring such knowl- edge, he continues in possession of the goods, the law imposes on him the duties of a bailee in regard to such goods. Accordingly, when a man puts goods in the wagon of another, and the latter drives away, in ignorance of the presence of the goods on his wagon, he is not a bailee of such goods, nor responsible as such. As soon, though, as he discovers the goods, by continuing in pos- session of them he becomes, in the eyes of the law, a bailee, with the attendant responsibility of a bailee imposed upon him. Again, one seeing a lost watch in the road may pass it by without incurring any responsibility, but by voluntarily taking the watch into his possession, he becomes chargeable as a bailee.** One is not made a bailee against his will or without his consent. Such consent, however, is easily implied when, with his knowledge, the goods of another come into his possession. Indeed, it may be laid down as a general rule that whenever a person knowingly ac- quires possession of goods, unaccompanied by any right of owner- is Bohannon v. Springfield, 9 -Ala. 789; Delaware, L. & W. R. Co. v. Cen- tral S. Y. & T. Co., 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855 ; bloyd v. West Branch Bank, 15 Pa. 172, 53 Am. Dec. 581 ; Bunnell v. Stern, 122 N. T. 539, 25 N. E. 910, 10 L. K. A. 481, 19 Am. St. Rep. 519. 48 Where goods are placed in a carrier's possession without his knowledge or consent, there can be no contract of bailment. Where one checked his trunk on a railway as baggage, paying no compensation therefor except his fare as a passenger, and giving no notice that it contained valuable and costly merchandise, it was held that the want of fair dealing on his part was a full answer to any action upon any implied contract of bailment for hire. Mich- igan Cent. R. Co. v. Carrow, 73 111. 348, 24 Am. Kep. 248. See, also. Sherman v Hicks, 14 N. M. 439, 94 Pac. 959; Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943. ** See note 38, supra. § 12) WHAT TITLE BAILOR MOST HAVE . 25 ship, such acquiring of possession is equivalent to an implied con- sent, and the law will impose upon such person in possession of the goods the liabilities of a bailee." WHAT TITLE BAILOR MUST HAVE 12. If the bailor has a special property in, or even lawful possession of, the goods, this is sufficient title to support the bail- ment. In order that one may make a valid bailment of a thing, it is not •essential that he shall be the owner of it. If the bailor has what is known as a special property in goods, or even lawful possession thereof, this is sufficient. For a bailment requires the transfer, not ■of ownership, but merely of possession. Accordingly, to create a bailment, it is necessary only that the bailor have a possession that he can transfer to the bailee. Thus, the finder of lost goods does not, by such finding, acquire the ownership of such goods, yet he has such a possessory right as will .enable him to keep the goods as against all but the rightful owner, and the finder may make, subject to the rights of the owner, a valid bailment of the goods. 48 One holding goods without title and wrongfully may make a bailment of them, valid save as against the real owner, and as between the bailor and bailee the rights and •duties of the bailment relation would attach ; 47 or, as against all but the owner, even a thief may make a bailment of stolen goods, and, since the bailee is estopped to deny hisjiarlor's title, the bailee would, as between the bailor and bailee, be compelled to restore the goods to his bailor, the thief. «e Schouler, Bailm. (2d Ed.) § 3; Wolf v. Shannon, 50 111. App. 396; Jones v. Maxwell, 1 Lack. Leg. N. (Pa.) 191. *« Thus, in the case of Armory v. Delamirie, 1 Strange, 505, It appeared that a boy found a jewel, and took it to a jeweler's shop, to find what it was. The jeweler refused to return the jewel, and, in an action in trover, It was held that the finder of a chattel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently he may maintain trover. And see Rooth v. Wilson, 1 Barn. & Aid. 59. The finder of a bank note, as "against a Bailee to whom he delivers it, has such a possessory interest in the note as entitles him to recover it from the bailee,- in the absence of any claim by the rightful owner. Tancil v. Seaton, 28 Grat. (Va.) 601, 26 Am. Rep. 380. *7 Taylor v. Plumer, 3 Maule & S. (Eng.) 562; Learned v. Bryant, 13 Mass. 224. 26 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 INTEREST OF BAILOR AND BAILEE IN THE BAILED GOODS 13. The general property or ownership in the bailed goods remains in the bailor, while the bailee acquires at least a possessory interest, and in many cases a special property, in such goods. Bailor's Interest A bailment is a transfer of possession unaccompanied by owner- ship. The person owning the goods before the bailment there- fore continues to own them afterwards. Since the ownership of the goods remains unaffected by the bailment, the bailor, if he was, as is usually the case, the owner of the goods, continues to bear that relation toward them. 48 Indeed, as we have already seen, particularly in distinguishing a bailment from a sale, the severance of ownership and possession is of the very essence of the bailment. This ownership is an independent property right, "which the bailor, even without the bailee's consent, may freely transfer to a third person. 49 Such third person, however, would acquire the ownership, just as the bailor held it, subject to all "the rights of the bailee. This ownership of the bailor is, of course, unaffected by any wrongful disposal of the goods by the bailee to a third person. 60 For the bailor could, in such a case, assert his ownership against the third person with as much force as he could against the bailee. This ownership, consisting of the resid- uary right in the goods remaining after the rights of the bailee are is Story, Bailm. § 93; Henry v. Patterson, 57 Pa. 346, 352; Prichett v. Cook, 62 Pa. 193 ; Laflin & R. Powder Co. v. Burkhardt, 97 U. S. 110, 24 D. Ed. 973. *» And notice to the bailee of such transfer of title is a sufficient construc- tive delivery to hold the property as against attaching creditors of the bailor, or one claiming as a bona fide purchaser. Erwin v. Arthur, 61 Mo. 386; Gerber v. Monie, 56 Barb. (N. Y.) 652. Thus, where the owner of a lot of cotton in the hands of the surveyor of a port, seized by him, to await an ex- amination in regard to charges, sold the same, and gave his vendee an order on the surveyor for the cotton, and also notified the surveyor of such sale, it was held that such action on the part of the vendor passed all his rights to his vendee, who could maintain an action of replevin for the cotton, as against a subsequent attaching creditor of his vendor, whether the surveyor had consented or not to the delivery, after the termination of his own right of possession. Hodges v. Hurd, 47 111. 363. BoBenner v. Puffer, 114 Mass. 376; Austin v. Dye, 46 N. Y. 5(H); Davis v. Bigler, 62 Pa. 242, 1 Am. Rep. 393; Baehr v. Clark, 83 Iowa, 313, 49 N. W. 840, 13 L. R. A. 717. • § 13) INTEBE8T OF BAILOR AND BAILEE IN THE BAILED GOODS 27 satisfied, the bailor may also protect by appropriate action, when it is wrongfully interfered with either by the bailee or by third parties. 61 Bailee's Interest The bailee acquires, by virtue of the bailment, an interest in the goods bailed that amounts at least to a possessory right or- interest. 62 In many cases, the bailee's interest rises to the dignity of a special property in the goods, which is a right against the goods, an in rem claim, which he can assert as against all the world, including the bailor. 68 Even when the bailee's interest is only a mere possessory right, this constitutes what is known in fire insurance as an insurable interest upon which a valid policy may be taken out. The bailee, too, can protect by appropriate action his interest against wrongful interference. 6 * As the nature of this interest, as well as the ap- 01 Strong v. Adams, 30 Vt. 221, 73 Am. Dec. 305. And see BURDIOT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84; Root v. Chandler, 10 Wend. (N. T.) 110, 25 Am. Dec. 546; Cannon v. Kinney, 3 Scam. (111.) 9 ; Long v. Bledsoe, 3 J. J. Marsh. (Ky.) 307 ; Overby v. McGee, 15 Ark. 459, 63 Am. Dec. 49; Walker v. Wilkinson, 35 Ala. 725, 76 Am. Dec. 315; White v. Brantley, 37 Ala. 430; Lotan v. Cross, 2 Camp. 464. Where the bailor is entitled to possession at any time, he may maintain trespass against a third person for injury to the bailed property. Walcot v. Pomeroy, 2 Pick. (Mass.) 121 ; Bradley v. Davis, 14 Me. 44, 47, 30 Am. Dec. 729 ; Dallam v. Fitter, 6 Watts & S. (Pa.) 323, 325; Staples v. Smith, 48 Me. 470 ; Hart v. Hyde, 5 Vt. 328 ; Freeman v. Rankins, 21 Me. 446 ; Gauche v. Mayer, 27 111. 134; Shloss v. Cooper, 27 Vt. 623; Hayward Rubber Co. v. Duncklee, 30 Vt. 29; Holly v. Huggefor d, 8 Pick. (Mass.) 73, 19 Am. Dec. 303. See post, §| 28, 39, 4S,~tS'l." But, when the bailment is for a-flefinite time, the bailor cannot maintain trespass, because he has no right to possession until the expiration of such period. Walcot v. Pomeroy, 2 Pick. (Mass.) 121, 122 ; Muggrldge v. Bveleth, 9 Mete. (Mass.) 233 ; Lunt v. Brown, 13 Me. 236 ; Lewis v. Carsaw, 15 Pa. 31 ; Hume v. Tufts, 6 Blackf. (Ind.) 136 ; Putnam v. Wyley, 8 Johns. (N. T.) 432, 5 Am. Dec. 346; Bell v. Monahan, Dud. (S. C.) 38, 31 Am. Dec. 548 ; McFarland v. Smith, Walk. (Miss.) 172 ; Lacoste v. Pipkin, 13 Smedes & M. (Miss.) 589 ; Soper v. Sumner, 5 Vt. 274'; Clark v. Carlton, 1 N. H. 110 ; WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Carriers, S5 ; Corfleld v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230 ; Ward v. Mc- Cauley, 4 Term R. 489. 52 Smith v. Jones, 8 Ark. 109; COMMONWEALTH v. MORSE, 14 Mass. 217, Dobie Cas. Bailments and Carriers, 51 ; Sibley v. Story, 8 Vt 15. 53 The question of when the bailee has a mere possessory interest in the bailed chattels and when a special property is discussed in detail as to the various classes of bailments. 54 Shaw v. Kaler, 106 Mass. 448; Hopper v. Miller, 76 N. C. 402; Knight v. Davis Carriage Co., 71 Fed. 662, 18 C. C. A. 287; CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Dobie Cas. Bailments and Carriers, 59; Walsh v. United States Tent & Awning Co., 153 111. App. 229. 28 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 propriate action by which it may be protected, varies in different bailments, an accurate discussion of this subject must be left to the detailed treatment of the various specific classes of bailments. ESTOPPEL OF BAILEE TO DENY BAILOR'S TITLE 14. The bailee is estopped, by virtue of the bailment, from denying the title of the bailor at the time of the delivery of the goods to the bailee. The bailee is not permitted to dispute the bailor's title, at the time of the delivery of the goods to him, by setting up in himself an adverse title to the goods as of that time. 65 The possession of the bailee was acquired from the bailor, and by thus assuming possession of the goods the bailee estops himself from setting up that he had title to the goods when he received them from the 65 Plummer v. Hardison, 6 Ala. App. 525, 60 South. 502; Britton v. Aymar, 23 La. Ann. 63, 65; Peebles v. Farrar, 73 N. C. 342; Foltz v. Stevens, 54 111. 180 ; Maxwell v. Houston, 67 N. C. 305 ; Thompson v. Williams, 30 Kan. 114, 1 Pac. 47; Marvin v. Ell wood, 11 Paige (N. T.) 365. Where one borrows property, without alleging any right to it, he is estopped from setting up a claim to it on behalf of his wife. Pulliam v. Burlingame, 81 Mo. Ill, 51 Am. Rep. 229. See, also, Hentz v. The Idaho, 93 U. S. 575, 23 L. Jfid. 978 ; Osgood v. .Nichols, 5 Gray (Mass.) 420 ; Thompson v. Williams, 30 Kan. 114, 1 Pac. 47 ; Tribble v. Anderson, 63 Ga. 31; Shellhouse v. Field, 49 lnd. App. 659, 97 N. K. 940. For extended note on this subject, see 19 Ann. Cas. 521. The bailee sued by the bailor for conversion of the property cannot set up title of a third person thereto, except by authorization of that person. Bondy v. American Transfer Co., 15 Cal. App. 746, 115 Pac. 965. Where plaintiff acquired pos- session of a mileage book from defendant for the purpose of riding thereon, agreeing to return the balance of the mileage, plaintiff was estopped to deny his obligation to return the book to defendant because defendant was not the original purchaser, who was alone entitled to use the book for transporta- tion. Cook v. Bartlett, 115 App. Div. 829, 100 N. Y. Supp. 1032. By the ac- ceptance of a bailment the bailee admits the title of his bailor, and is estop- ped thereafter from disputing it. Atlantic & B. K. Co. v. Spires, 1 Ga. App. 22, 57 S. E. 973. In an action against a bailee for conversion, defendant is estopped from denying the title of his bailors, no paramount title having intervened. Barker v. S. A. Lewis Storage & Transfer Co., 79 Conn. 342, 65 Atl. 143, 118 Am. St. Rep. 141. A bailee is estopped to deny the bailor's title or ownership, of the property bailed at the time of bailment, but is not es- topped, when sued for conversion, from showing that the title held by the bailor at the time of bailment has been acquired by himself, or has passed to another. Shellhouse v. Field, 49 lnd. App. 659, 97 N. E. 940. While a bailee can in no case set up a claim in himself to the goods as against the bailor when the goods are claimed by a third person, he may refuse to deliver them at his peril. Atlantic & B. R. Co. v. Spires, 1 Ga. App. 22, 57 S. M. 973. § 14) ESTOPPEL OF BAILEE TO DENY BAILOR'S TITLE 29 bailor. The bailee's very act of accepting possession from the bailor is in itself an admission of the bailor's title, which the bailee would not be permitted, while still holding possession, to deny by asserting title in himself. A bailee may show, however, that, since the goods were deliv- ered to him, the bailor has sold them tq another. On a valid sale by the bailor, when the bailee has notice of the sale, the bailee must account to the buyer. 66 The rule that a bailee cannot at- torn to a stranger has no application to such a case ; the purchaser from the bailor is not a stranger. The estoppel extends only to a denial by the bailee that the bailor had title at the time he deliv- ered the goods to the bailee. So, when a person borrowed a gun from another, thus becoming a bailee, and then such person after- wards refused to return the gun, claiming that it belonged to him when he borrowed it, it was held that such person, as a bailee, must first return the gun to his bailor before he could claim title to the gun in himself at the time the bailment was created. 67 One claiming title to a chattel held by another cannot obtain pos- session of it under the guise of a bailment and then excuse himself from returning it by repudiating the bailment by virtue of which he acquired his possession and by setting up a hostile title to the chattel in himself. Having acquired his possession solely in the role of a bailee, he must continue in that role, and, as the role requires, surrender possession of the chattel to the bailor. This estoppel is limited in time to the moment when the goods were delivered to the bailee. 68 Thus, though the bailee cannot claim that he was then the owner of the goods, he can claim that he acquired the ownership of the goods by virtue of a transfer by the bailor of such ownership to him at a period subsequent to the creation of the bailment ; for this claim, instead of repudiating the bailor's title at the creation of the bailment, affirms that the bailor 6 Roberts v. Noyes, 76 Me. 590; Marvin v. Ell wood, 11 Paige (N. T.) 365; Smith v. Hammond, 6 Sim. 10; National Exch. Bank of Boston v. McLoon, 73 Me. 498, 40 Am. Rep. 388. 67 SIMPSON v. WRENN, 50 111. 222, 99 Am. Dec. 511, Dobie Cas. Bail- ments and Carriers, 22. And see Bursley v. Hamilton, 15 Pick. (Mass.) 40, 25 Am. Dec. 423, where it was held that an owner of property giving a receipt for it to an officer who had seized it under process could not set up title in himself when sued by the officer without first restoring the property to the officer. Contra, Learned v. Bryant, 13 Mass. 224. It is said that a purchaser from the bailor has the same right as the bailor to assert the estoppel against the bailee. 08 Roberts v. Noyes, 76 Me. 590; Burnett v. Fulton, 48 N. C. 486; Kingsman v. Kingsman (Eng.) 6 Q. B. D. 122 ; Marvin v. EUwood, 11 Paige (N. Y.) 365. HO GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 had title even subsequent to this time, which title the bailee claims was transferred to him by the bailor. 59 Again, the bailee may, of course, claim his full rights as a bailee against the bailor. When he has a special property in the goods, he may sue the bailor, and recover his possession of the goods, wrongly interrupted by the bailor. 60 The estoppel applies only when the bailee seeks to claim an interest beyond that of a bailee, us that of owner. In' asserting his rights as the bailor's bailee, the bailee, instead of denying, is affirming the bailment and the fullest right of the bailor to create it.' Finally, in this connection, while the bailee cannot set up title for himself at the time of the inception of the bailment, he must, at his peril, respect the rights of third persons superior to those of his bailor. As we shall see, the bailee is an insurer as to delivery of the goods to the right person. Accordingly, when he has notice of the paramount claim of a third person, the bailee must deliver the goods to him and not to the bailor. Thus the estoppel, as of the time of the beginning of the bailment, is limited to the bailee's setting up title in himself adverse to the bailor ; the estoppel does not apply, as of the same time, to the bailee's respecting, as he must, the paramount title of the third party brought to his no- tice. 61 There is no inconsistency between the rule that the bailee, having received possession from the bailor, cannot retain the pos- session thus gained by repudiating its source, and the rule that the adverse claimant or third party, as the real owner of the chattel, can disregard an unauthorized bailment as not being binding on him and can seize the chattel in the hands of the bailee. 69 The bailee cannot, however, during the continuance of the bailment pur- chase the adverse outstanding title of a third person, and then set up such title before surrendering possession! of the goods to the bailor. Nudd v. Montanye, 38 Wis. 511, 20 Am. Rep. 25. eo SIMPSON v. WRENN, 50 111. 222, 99 Am. Dec. 511, Dobie Cas. Bail- ments and Carriers, 22 ; BURDICT v. MURRAY, 3 Vt 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84. ei Hentz v. The, Idaho, 93 U. S. 575, 23 D. Ed. 978; Mullins v. Chickering, 110 N. X. 513, 18 N. E. 377, 1 L. R. A. 463; DAVIS v. DONOHOE-KELLY; BANKING CO., 152 Cal. 282, 92 Pac. 639, Dobie Cas. Bailments, and Car- riers, 29 ; Atlantic & B. R. Co. v. Spires, 1 Ga. App. 22, 57 S. E. 973 ; Kelly v. Patchell, 5 W. Va. 585 ; Thompson v. Williams, 30 Kan. 114, 1 Pac. 47. § 15) bailob's duty to warn bailee of dangeb 31 BAILOR MUST NOT EXPOSE BAILEE TO DANGER WITHOUT WARNING 15. It is the duty of the bailor to warn the bailee of any hidden defects in the articles bailed or any latent danger attend- ant upon the execution of the bailment, provided the bailor knows, or should have known, of such defect or danger. The law places upon the Bailor the duty of warning the bailee of any hidden defects in the bailed goods, or any latent danger involved in the bailment purpose, provided actual or constructive knowledge of such defect or danger can be attributed to the bailor. 62 The bailor must not knowingly expose the bailee without warning to dangers or perils of which the latter is ignorant. Thus, if the bailor of a horse, knowing the horse to be wild and vicious, fails to inform an ignorant bailee of this fact, the bailor is liable in damages to the bailee for injuries sustained by the bailee as a result of this dereliction of duty. 88 It is sometimes said that the bailor is liable to the bailee for all damages sustained by the latter, without fault on his part, the proximate cause of which was the performance of the bailment purpose. This, however, is much too broad. No such liability is imposed on the bailor by the bailment contract, in the absence of a special stipulation. Nor does the law impose any such re- sponsibility as inherent in the bailment relation. If the danger was clear to both parties, it is assumed by the bailee in under- taking the bailment. The same would be true if the bailee alone knew of the danger. If the danger was not known to the bailor, and there was no fault on his part in not knowing it, he incurs no such responsibility. Accordingly, in the absence of knowledge, actual or constructive, of the defect or danger, the bailor incurs no responsibility for dam- ages suffered by the bailee in executing the bailment. 84 The law is reasonable in not imposing upon the bailor the duty of disclosing «2 Story, Bailm. §§ 390-391a; Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699; Home v. Meakin, 115 Mass. 326; Reading v. Price, 3 J. J. Marsh. (Ky.) 61, 19 Am. Dec. 162; Kissam v. Jones, 56 Hun, 432, 10,N. Y. Supp. 94. 6 s Story, Bailm. § 391a; Campbell v. Page, 67 Barb. (N. Y.) 113; Huntoon v. Trumbell (C. C.) 12 Fed. 844 ; Kissam v. Jones, 56 Hun, 432, 10 N. Y. Supp. 94. For note on liability of owner of vicious animals to disclose such pro- pensities to bailee, see 18 Ann. Cas. 814. e* COPELAND v. DRAPER, 157 Mass. 558, 32 N. E. 944, ,19 D. R: A. 283, am' twte, 34 Am. St. Rep. 314, Dobie Cas. Bailments and Carriers, 25. 32 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 what he neither knows nor should know. In the absence, then, of a breach of duty, or a contract specially imposing liability on the bailor for damages resulting from the carrying out of the bail- ment purpose, what legal reason is there, or what consideration of public policy, for imposing on the bailor the unusual responsi- bility involved in the broad rule given above? Hence, if neither party knows nor ought to know, there is no liability on the bailor. The same result follows when both parties know or ought to know, or when this is true of the bailee alone. The legal duty of disclosure, for a breach of which he is respon- sible, rests on the bailor only when he knows or ought to know, and the bailee neither knows nor ought to know. CARE TO BE EXERCISED BY THE BAILEE 16. In performing the bailment purpose, the bailee must exercise due care, or that degree of care which is determined by, and commensurate with, the particular class to which the specific bailment belongs. The degree of care which the bailee must exercise is, from a practical standpoint, by far the most important of the duties im- posed by the law upon the bailee. In practice, the question is always considered in connection with the class of bailments under which the particular bailment falls. The subject is therefore dis- cussed at some length under each class of bailments considered; but a brief discussion of some of the basic principles underlying the whole subject will not be out of order here. When the point is not covered by a stipulation in the bailment contract the law imposes on the bailee in all ordinary bailments (as distinguished from extraordinary bailments) the duty of exer- cising due care. As due care is too indefinite, the law goes fur- ther and, in each of the three great classes of bailments classified in the score of benefit, sets up a more definite standard of care as applicable only to bailments of that class. When , the class to which the particular bailment belongs is determined, the standard of care applicable to that class is fixed, and the question then asked is whether the bailee has fulfilled the duty imposed on him by law and exercised that particular degree of care. 65 If the ques- «»2 Jagg. Torts, 88; Hall v. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239; Meredith v. Reed, 26 Ind. 334; Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967; Grand Trunk R. Co. v. Ives, 144 V. S. 408, 12 Sup. Ct 679, 36 L. Ed. 485; Michigan Cent R, Co. v. Coleman, 28 Mich. 440 ; Pennsylvania § 16) OAEE TO BE EXERCISED BY THE BAILEE 33 tion be answered in the affirmative, the bailee is not responsible for any loss or injury that occurs to the bailed goods, and such loss must fall on the bailor. If, however, the question be answered in the negative, the bailee is then guilty of a breach of a legal duty, and is therefore responsible to the bailor for all damages directly and proximately flowing from the breach. As we have just seen, by classifying the bailment on the score of benefit, a certain degree of care is arrived at as the measure of the bailee's duty, and the bailee is liable only for a breach of his duty as so measured. This breach of a legal duty is called negli- gence, and the ordinary bailee is therefore said to be liable only for his negligence. 66 Or it is said that his liability is reckoned in terms of negligence. This is to distinguish the liability of the ordinary bailee from that of certain of the extraordinary bailees who are liable (with specific exceptions) for any loss or injury to the goods regardless of how the loss or injury occurred, and regardless of any fault or dereliction of duty on their part. These extraordinary bailees are said to be liable as insurers; or it is said that their liability is reckoned in terms of insurance. In fixing the degrees of care, thus establishing standards of duty, any breach of which is negligence, the controlling factor is the Co. v. O'Shaughnessy, 122 Ind. 588, 23 N. E. 675; Smith v. New York Cent. R. Co., 24 N. T. 222; Perkins v. New York Cent. R. Co., 24 N. Y. 196, 82 Am. Dec. 281 ; McAdoo v. Richmond & D. R. Co., 105 N. C. 140, 11 S. E. 316 ; Storer v. Gowen, 18 Me. 174; Lane v. Boston & A. R. Co., 112 Mass. 455; Hinton v. Dibbin, 2 Q. B. 646; Wyld v. Pickford, 8 Mees. & W. 442; Preston v. Prather, 137 V. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 788; GRAY v. MER- RIAM, 148 111. 179, 35 N. E. 810, 32 L. R. A. 769, 39 Am. St. Rep. 172, Dobie Cas. Bailments and Carriers, 43. On negligence as a breach of duty to use commensurate care, see 2 Jagg. Torts, 810; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686; Brown v. Congress & B. St. Ry. Co., 49 Mich. 153; 13 N. W. 494; Blyth v. Birmingham Waterworks Co., 11 Exch. 781, 784; Cooley on Torts (Student's Edition) § 338; Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261. 6« Wood v. McClure, 7 Ind. 155; Watkins v. Roberts, 28 Ind. 167; Carpenter v. Branch, 13 Vt. 161, 164, 37 Am. Dec. 587; BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Cass v. Boston & L. R. Co., 14 Allen (Mass.) 448; Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156, 158; Abraham v. Nunn, 42 Ala. 51; Yale v. Oliver, 21 La. Ann. 454; Levy v. Bergeron, 20 La. Ann. 290; Waller v. Parker, 5 Cold. (Tenn.) 476; James v. Greenwood, 20 La. Ann. 297; Britton v. Aymar, 23 La. Ann. 63; McGinn v. Butler, 31 Iowa, 160; Watkins v. Roberts, 28 Ind. 167; Shiells v. Blackburne, 1 H. Bl. (Eng.) 158; Drudge v. Leiter, 18 Ind. App. 694, 49 N. E. 34, 63 Am. St. Rep. 359. A bailee who receives plumes to be dyed is not an insurer thereof. Johnson v. Chicago Feather Co., 172 111. App. 81. See, also, Whitlock v. Auburn Lumber Co., 145 N. C. 120, 58 S. E. 909, 12 L. R. A. (N. S.) 1214; O'ROTJRKE v. BATES, 73 Misc. Rep. 414, 133 N. Y. Supp. 392, Dobie Cas. Bailments and Carriers, 172. Dob.Bailm. — 3 34 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 intended benefit to be derived from the bailment. The degree of care exacted of the bailee varies directly with the benefit accruing to the bailee from the bailment. When the bailor receives all the benefit from the bailment, and the bailee none, this standard of care is the lowest. When the bailor receives none of the benefit and the bailee all, the highest standard of care is exacted. When the benefit is mutual, accruing to both bailor and bailee, the stand- ard is naturally higher than in the first case mentioned and lower than in the second case. Accordingly we say that in bailments for the bailor's sole benefit the bailee must exercise only slight care;" in bailments for the bailee's sole benefit, great care; 68 and in bailments for the mutual benefit of both the bailor and bailee, ordinary care. 69 It is thus clear that the bailee is always liable for his negligence, which is a breach of legal duty. But it is impossible to determine the presence or absence of negligence without first outlining the duty, which is here done by classifying the bailment, thus arriving at the degree or standard of care which it is the bailee's duty to-exer- cise. By comparison with this standard the conduct of the bailee is then to be judged." It therefore follows that the same acts of the bailee might be negligence when judged by the standard of duty prescribed in one class of bailments and might not be negligence judged by the standard of another class. Thus, let us suppose that the conduct of the bailee is equivalent, under the circumstances, to ordinary care. Now, in a bailment for the bailor's sole benefit, the bailee's duty is only slight care, and therefore in exercising ordinary care (a higher degree than slight care) the bailee has more than fulfilled the duty imposed on him, and he is therefore not guilty of negligence, and hence not liable. But, in a bailment for the bailee's sole benefit, the bailee's duty is great care (a higher degree than ordinary care) and in exercising only ordinary care the bailee has committed a breach of his duty, and he is therefore guilty of negligence in the premises and hence liable. Measured, then, by his duty to exercise a certain degree of care, any failure by the bailee, however slight, to live up to that standard, is neg- ligence, rendering him liable for direct^ and proximate damages flowing therefrom. er CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bail- ments and Carriers, 54 ; Belmont Coal Co. v. Ricbter, 31 W. Va. 858, 8 S. E. 609. See post, § 29. ■68 Wilcox v. Hogan, 5 Ind. 546; FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61. See post, § 40. oo Wood v. Remick, 143 Mass. 453, 9 N. E. 831; Standard Brewery v. Bemis & Curtis Malting Co., 171 111. 602, 49 N. E. 507. See post, §§ 53, 65. § 16) OABE TO BE EXERCISED BY THE BAILEE 35 Ever since Lord Holt's decision in COGGS v. BERNARD, how- ever, writers and judges have fallen into the use of the extremely unfortunate terminology known as "grades or degrees of negli- gence." 70 Thus it is said that, in bailments for the bailor's sole benefit the bailee is responsible only for great or gross negligence, by which is meant failure to exercise even slight care; in bail- ments for the bailee's sole benefit, it is said that the bailee is responsible even for slight negligence, by which is meant failure to .exercise great care; and in bailments for the mutual benefit of both bailor and bailee, it is said the bailee is liable for ordinary negligence, by which is meant the failure to exercise ordinary care. This distinction of three grades or degrees of negligence, in order to determine the liability of the bailee, has become so inter- woven with the law of bailments that it is impossible to disregard it. It has been, however, severely and justly criticised as un- scientific, inaccurate, and misleading. Negligence, as we have already seen, is the breach of -a legal duty. For any negligence, or breach of such duty, resulting in damage, the bailee is liable, regardless of the fact whether the negligence be slight, ordinary, or great. Therefore, when negligence is given its real meaning as a juristic concept, a statement that the bailee is not liable for slight negligence or ordinary negligence is a misnomer, a con- tradiction in terms, a legal absurdity. It is therefore logical to apply the adjectives of comparison ("slight," "ordinary," and "great") to the term "diligence" or "care," and not to the cor- relative term "negligence." If the degrees were applied to the terms "neglect," "fault," or "carelessness," there would be much less objection, but even this terminology is not to be commended. It remains, in this connection, only to explain briefly what is meant by the acceptable terms "slight care," "ordinary care," and "great care." To judge ordinary care, a theoretical man is set up, the man of ordinary prudence, and ordinary care is that degree of care which this man of ordinary prudence is accustomed to exercise in his own affairs under similar circumstances; 71 to 70 Degrees of negligence are not recognized in some cases. Bigelow, Torts, § 265; First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. T. 278, 19 Am. Rep. 181; Hall v. Chicago, B. & N.. B. Co., 46 Minn. 439, 49 N. W. 239; Gill v. Middleton, 105 Mass. 479, 7 Am. Bep. 548. See, also, as to degrees of neg- ligence, The New World v. King, 16 How. (TJ. S.) 474, 14 L. Ed. 1019; New Xork Cent. E. Co. v. Lockwood, 17 Wall. (U. S.) 382, 21 D. Ed. 627; Wilson v. Brett, 11 Mees. & W. 113 ; Grill v. Iron Screw Collier Co., L. B. 1 C. P. 612. 71 The Farmer v. McCraw, 26 Ala. 189, 72 Am. Dec. 718; United States v. Yukers, 60 Fed. 641, 9 C. C. A. 171; Hoffman v. Tuolumne County Water Co., 10 Cal. 413; Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 Pac. 1072, 11 U K. A. 689, 26 Am. St. Bep. 842 ; Austin & N. W. By. Co. v. Beatty, 36 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 judge slight care is set up the man of less than ordinary pru- dence; 72 while great care is judged by the man of more than ordinary prudence. 73 By just how much the man of less than or- dinary prudence falls below the man of ordinary prudence, as well as how far above this same ordinary prudent man is the man of great prudence cannot be stated with any accuracy or defi- niteness. The force and application of these comparative stand- ards will appear in the treatment of the several classes of bail- ments. Finally, it might be remarked that the whole scheme of degrees of diligence, as well as the methods of judging them, has been criticised as being neither accurate nor philosophical. But by the overwhelming weight of authority the scheme, though ad- mittedly far from perfect, still obtains, and continual resort is had to it as the best method yet suggested in order to arrive at a practical solution of the question of the liability of the bailee for loss of, or injury to, the. goods constituting the subject-matter of the bailment. 7 * PRESUMPTION OF NEGLIGENCE FROM LOSS OR INJURY 17. The burden of proof as to negligence rests primarily upon the bailor, but- he makes out a prima facie against the bailee by showing the loss of, or injury to, the goods. There is no little confusion among the decisions in regard to the burden of proof in cases where the bailee is sued by the bailor for loss of, or injury to, the bailed goods. J-It seems accurate, accord- ing to the weight of authority, and also on principle, to say that, since the negligence of the bailee is a fact upon which the bailor's right to recover is based, the burden of proof as to such negligence 73 Tex. 592, 11 S. W. 858; Marsh v. Benton County, 75 Iowa, 469, 471, 39 N. W. 713. See Story, Bailm. § 11 ; Jones, Bailm. § 6. 72 According to Judge Story, "slight diligence is that which persons of less than common prudence, or, indeed, of any prudence at all, take of their own concerns." Story, Bailm. § 16. And see Vaughan v. Menlove, 3 Bing. N. O. 468, 475. 7 8 Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Wood v. McClure, 7 Ind. 155; BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carriers, 56; Hagebush v. Ragland, 78 111. 40; Kennedy v. Ashcraft, 4 Bush (Ky.) 530; Lane v. Cameron, 38 Wis. 603; Cullen y. Lord, 39 Iowa, 302; Stewart v. Davis, 31 Ark. 518, 25 Am. Kep. 576. " See Van Zile, Bailm. & Carr. § 94. § 17) PRESUMPTION OP NEGLIGENCE FEOM LOSS OB INJURY 37 rests at the outset on the plaintiff bailor, and remains on him all during the trial. But by proving that the goods were delivered to the bailee in good condition and that they were returned in a damaged condition or not returned at all, the plaintiff thereby makes out a prima facie case of negligence, and thus imposes upon the defendant bailee the duty of going forward with the evidence under penalty of losing the suit. 75 Hence a mere showing of loss or injury will entitle the plaintiff bailor to recover, unless this is offset by evidence adduced by the defendant baileeJf The bailee, though, may overcome the prima facie case, thus ma&e out on the part of the bailor, by proving affirmatively that he exer- cised that degree of care which the bailment in question called for, or that the loss or injury was due to causes in no way con- nected with the lack of proper care on his part. 76 Such a showing ™ Boies v. Hartford & N. H. R. Co., 37 Conn. 272, 9 Am. Rep. 347; Funk- houser v. -Wagner, 62 111. 59; Goodfellow's Ex'rs' v. Meegan, 32 Mo. 280, 284; BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carriers, 56: Vaughan v. Webster, 5 Bar. (Del.) 256; Safe Deposit Co. of Pittsburgh v. Pollock, 85 Pa. 391, 27 Am. Rep. 660; Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999, 43 Am. St. Rep. 725 ; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Coleman v. Livingston, 36 N. T. Super. Ct. 32; Golden v. Romer, 20 Hun (N. Y.) 438; McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Wilson v. Southern Pac. R. Co., 62 Cal. 164; Thompson v. St. Louis & S. F. Ry. Co., 59 Mo. App. 37; BELLER v. SCHTJLTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Beardslee v. Richardson, 11 Wend. (N. Y.) 25, 25 Am. Dec. 596; McCarthy v. Wolfe, 40 Mo. 520; Cross v. Brown, 41 N. H. 283 ; Colling v. Bennett, 46 N. Y. 490 ; Lamb v. Western R. Corp., 7 Allen (Mass.) 98; Massillon Engine & Thresher Co. v. Akerman, 110 Ga. 570, 35 S. E. 635; HUNTER v. RICKE BROS., 127 Iowa, 108, 102 N. W. 826,- Dobie Cas. Bailments and Carriers, 27; Jackson v. McDonald, 70 N. J. Law, 594, 57 Atl. 126; Shropshire v. Sidebottom, 30 Mont. 406, 76 Pac. 941; Davis v. A. O. Taylor & Son, 92 Neb. 769, 139 N. W. 687; Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562, 568, 47 Am. Rep. 75. See Alden v. Pearson, 3 Gray (Mass.) 342; Piatt v. Hibbard, 7 Cow. (N. Y.) 497; Burnell v. New York Cent. R. Co., 45 N. Y. 184, 6 Am. Rep. 61 ; Schwerin v. McKie, 51 N. Y. 180, 10 Am. Rep. 581; Fairfax v. New York Cent. & H. R. R. Co., 67 N. Y. 11; Travelers' Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N. W. 703, 45 L. R. A. (N. S.) 331; Nutt v. Davison, 54 Colo. 586, 131 Pac. 390, 44 L. R. A. (N. S.) 1170. The rule that, where property bailed is not returned, the law presumes negligence in the bailee, and the burden is on him of showing that the loss is not due to his negligence, is the same whether the bailment is gratuitous or not. Pregent v. Mills, 51 Wash. 187/98 Pac. 32,8.1/ Where a horse in the hands of a blacksmith to be shod is returned to the owner with his foot injured, and the blacksmith makes no explanation other ' than that he dropped the horse's foot on a drawing knife, such evidence will support a finding of negligence. Powell v. Hill (Tex. Civ. App.) 152 S. W. 1125. See, also, Johnson v. Perkins, 4 Ga. App. 633, 62 S. E. 152. 7 6 McLoughlin v. New York Lighterage & Transp. Co., 7 Misc. Rep. 119, 27 N. Y. Supp. 248; HUNTER v. RICKE BROS., 127 Iowa, 108, 102 N. W. 38 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 will then prevent a recovery by the bailor for the loss or injury, the loss or injury then falling on the bailor under the principle res perit domino." Proof of loss or injury, standing alone, accord- ingly constitutes as to negligence the preponderance of evidence required in civil causes to make out a case. The justification for this rule is found in the fact that experi- ence shows, in the great majority of cases, that the exercise by the bailee of the particular degree of care which the bailment demands will be sufficient to prevent the loss of, or injury to, the bailed goods. Another, and perhaps a stronger, reason is that the bailee, in possession and control of the goods, has the fullest opportunities of knowing" just how the loss or injury occurred, while just the opposite is true of the bailor. The rule given above is sometimes termed the modern rule, because it has the overwhelming support of the modern cases. There are quite a few cases, most of them old, though, holding that proof of loss or injury alone does not even make out a prima 826, Dobie Cas. Bailments and Carriers, 27. See,- also, cases cited in pre- ceding note. When a bailor shows that goods were delivered to the bailee in good condition and have been lost, destroyed, or returned in a damaged con- dition, negligence of the bailee is shown prima facie, and the burden rests upon him to show that the loss resulted from a cause prima facie exonerating him from negligence, and, when he shows loss by burglary, fire, etc., the burden shifts to the bailor to show negligence. Yazoo & M. V. R. Co. v. Hughes, 94 Miss. 242, 47 South. 662, 22 L. R. A. (N. S.) 975. Where a horse is delivered in good condition to a blacksmith to shoe, and shortly thereafter is found badly cut, a presumption of negligence by the blacksmith arises, authorizing a recovery for the injury, unless rebutted to the satisfaction of the jury. Johnson v. Perkins, 4 Ga. App. 633, 62 S. E. 152.1 An unreasonable, improbable, or impossible explanation of an injury to property of bailor while in the hands of bailee may be equivalent to an admission of liability, and, in any event, such an explanation, as well as no explanation, may be held by the jury to be a failure by bailee to show proper diligence. Johnson v. Perkins, 4 Ga. App. 633, 62 S. E. 152. " Bailee may make out a prima facie defense by showing that the injury or loss occurred under circumstances not in themselves imputing any fault to him. This then imposes on the bailor plaintiff the duty to bring forward evi- dence to prove some negligence of the bailee defendant, as that the bailee was negligent in exposing the property to the risk of harm, or in failing to avoid or minimize injury to the goods after the danger was known. HUNTER v. RICKE BROS., 127 Iowa, 108, 102 N. W. S26, Dobie Cas. Bailments and Carriers, 27; Standard Brewery v. Bemis & Curtis Malting Co., 171 111. 602, 49 N. E. 507; Seals v. Edmondson, 71 Ala. 509; Beardslee v. Perry, 14 Mo. 88; Schwerin v. McKie, 51 N. Y. 180, 10 Am. Rep. 581; First Nat. Bank of Carlisle v. Graham, 85 Pa. 91, 27 Am. Rep. 628; Cochran v. Dinsmore, 49 N. Y. 249; Cox v. O'Riley, 4 Ind. 368, 58 Am. Dec. 633; Boies v. Hartford & N. H. R. Co., 37 Conn. 272, 9 Am. Rep. 347; Logan v. Mathews, 6 Pa. 417; Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Malaney v. Tart, 60 Vt. 571, 15 Atl. 326, 6 Am. St. Rep. 135. § 18) BAILEE MUST ACT IN GOOD FAITH 39 facie case against the bailee, on the ground that the law tends to presume one diligent rather than negligent, and that therefore the bailor plaintiff must go further and connect such loss or injury with some negligent act or omission on the part of the bailee defendant. 78 BAILEE MUST ACT IN GOOD FAITH 18. The bailee must at all times exercise good. faith in carrying out the purpose of the bailment. For his fraud or posi- tive wrong he is always liable. A bailment is not a technical trust, nor is the relation one of the closest confidence or uberrirhse fidei as it is called in the law; but the relation ordinarily involves, to a limited extent, at least, the reposal of some confidence in the bailee. Ample warrant is therefore found for holding the bailee to a standard of strict hon- esty and good faith in the execution of the bailment purpose. For reasons much stronger than in the case of his negligence, the bailee is held liable for the consequences of his fraud or willful wrongdoing. 79 As we have seen, the courts are unanimous in 7 8 Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Schmidt v. Blood, 9 Wend. (N. X.) 268, 24 Am. Dec. 143; James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 Am. St. Rep. 293; 2 Kent, Comm. (4th Ed.) Lect 40, p. 587; Adams v. Inhabitants of Carlisle, 21 Pick. (Mass.) 146 ; Harrington v. Snyder, 3 Barb. (N. X.) 380 ; Finucane v. Small, 1 Esp. 315 ; Butt v. Great Western R. Co., 11 C. B. 140; Smith v. First Nat. Bank in fVestfield, 99 Mass. 605, 97 Am. Dec. 59; Cross v. Brown, 41 N. H. 283; Carsley v. White, 21 Pick. (Mass.) 254, 32 Am. Dec. 259 ; Brind v. Dale, 8 Car. & P. 207 ; Foote v. Storrs, 2 Barb. (N. X.) 326; Browne v. Johnson, 29 Tex. 40, 43. This is the English rule. Finucane v. Small, 1 Esp. 315; Cooper v. Barton, 3 Camp. 5, note; Harris v. Packwood, 3 Taunt. 264 ; Gilbart v. Dale, 5 Adol. & E. 543. " Corotinsky v. Cooper, 26 Misc. Rep. 138, 55 N. X. Supp. 570; Kahaley v. Haley, 15 Wash. 678, 47 Pac. 23; Chew v. Louchheim, 80 Fed. 500, 25 C. C. A. 596; Martin v. Cuthbertson, 64 N. C. 328; Lane v. Cameron, 38 Wis. 603; Cullen v. Lord, 39 Iowa, 302; Line v. Mills, 12 Ind. App. 100, 39 N. E. 870; Fisher v. Kyle, 27 Mich. 454 ; Ross v. Southern Cotton-Oil Co. (C. C.) 41 Fed. 152; Wintringham v. Hayes, 144 N. X. 1, 38 N. E. 999, 43 Am. St. Rep. 725 ; Townsend v. Rich, 58 Minn. 559, 60 N. W. 545 ; Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168 ; Sodowsky's' Ex'r v. McFarland, 3 Dana (Ky.) 204; Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; Mc- Mahon v. Sloan, 12 Pa. 229, 231, 51 Am. Dec. 601. Bailee pledging another's property without authority is guilty of conversion; and both bailee and pledgee are liable in trover, whether pledgee knew real state of title or not. Thrall v. Lathrop, 30 Vt. 307, 73 Am. Dec. 306. Bailees for special purpose have no right to sell property bailed, and, upon such sale, bailment is deter- mined, and real owner may replevy it from vendee. Emerson v. Fisk, 6 40 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 refusing to permit the bailee to contract against such liability. Negligence is more or less negative, and may, of course, consist in a mere omission or failure to take such steps as due care demands. Fraud or willful wrongdoing, however, is positive, in- volving a measure of moral turpitude. The bailee is, of course, liable, irrespective of the question of negligence or fraud, for any absolute breach of the bailment con- tract. 80 Such breaches, however, are usually accompanied by positive wrong on the part of the bailee. REDELIVERY OF BAILED GOODS BY THE BAILEE 19. The bailee must redeliver the goods, unless legally excused, at the termination of the bailment, according to the bail- or's directions. When he has notice of the claim of a third person adverse to the bailor, the bailee is an in- surer as to his delivery to the right person. As is indicated in the definition of a bailment, it is the normal duty of the bailee to redeliver the goods according to the direc- tions of the bailor, and these directions usually, but not always, contemplate a redelivery to the bailor. If, in such a case, the bailee in good faith delivers the goods to the bailor, without notice of any adverse cl§im, the bailee will not be responsible. 81 The Greenl. (Me.) 200, 19 Am. Dec. 206. Bailment requires on the part of the bailee the utmost good faith as to every matter wherein the interest of the bailor may be affected. Mirrris Storage & Transfer Co. v. Willies, 1 Ga. App. 751, 58 S. B. 232. See, also, Haines v. Chappell, 1 Ga. App. 480, 58 S. E. 220. so These are usually cases of conversion of the bailed goods by the bailee. See preceding note. A bailee is liable in an action of tort for an injury to bailed- property occurring during a use of it by him, or by others with his consent, which was neither expressly nor impliedly authorized by the contract of bailment, even though the injury was the result of accident, and not of negligence. Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369, 15 L. R. A. (N. S.) 428, 125 Am. St. Rep. 123, 12 Ann. Cas. 691. siNanson v. Jacob, 93 Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 531; PARKER v. LOMBARD, 100 Mass. 405, Dobie Cas. Bailments and Carriers, 31. So, in Strickland v. Barrett, 20 Pick. (Mass.) 415, B., who was a mortgagor in pos- session of certain goods, conspired with H. to remove them out of the reach of the mortgagee, and employed the defendant to assist in removing them; and it was held that defendant was not liable in trover, unless he knew of the intent to deprive the plaintiff of his property. And where one received a gun as a pledge from a person in possession of it, and restored it to him before any demand by the owner, this was not found to be a conversion. Leonard v. Tidd, 3 Mete. (Mass.) 6. See, also, Loring v. Mulcahy, 3 Allen (Mass.) 575. Nelson v. Iverson, 17 Ala. 216. And see Brown v. Thayer, 12 Gray (Mass.) 1. § 19) BEDKHVERY OF BAILED GOODS BY THE BAILEE 41 goods to be redelivered are the identical goods delivered to the bailee, either in the same or in an altered form, together with the profits or increase of such goods, though, in the case of stock cer- tificates, mere evidences of certain rights in the corporation, any- one of which is as good as another similar one, the identical cer- tificate need not be returned. 82 The bailee is an insurer as to his delivery to the right person. In other words, he is absolutely responsible for a delivery to the wrong person, regardless of the question of the bailee's good faith or negligence in making the delivery. 88 He therefore acts at his own peril and is liable for any mistake that he may make. Thus he will be responsible for delivery on a forged order, however per- fect the forgery, and whatever precautions he may have taken to discover it. 84 A bailee, accepting goods to be delivered to a third person on the happening of a certain event, must at his own peril decide whether the event has happened. 86 Of course, the bailee is not liable when he delivers the goods to the right person, though the delivery is made on insufficient or even false evidence. 86 As we have just seen, the bailee is justified in following the 82 Atkins v. Gamble, 42 Cal'. 86, 10 Am. Rep. 282. ssESMAY v. FANNING, 9 Barb. (N. Y.) 176, Doble Cas. Bailments and Carriers, 36; Wear v. Gleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186; Nelson v. King, 25 Tex. 655; Ganley v. Troy City Nat. Bank, 98 N. Y. 487; Bank of Oswego v. Doyle, 91 N. Y. 32, 42, 43 Am. Rep. 634; Willard v. Bridge, 4 Barb. (N. Y.) 361; Graves v. Smith, 14 Wis. 5, 80 Am. Dec. 762; Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33; Dufour v. Mepham, 31 Mo. 577; Jeffersonville R. Co. v. White, 6 Bush. (Ky.) 251; Alabama & T. R. R. Co. v. Kidd, 35 Ala. 209. But see Lancaster County Nat. Bank v. Smith, 62 Pa. 47. In some jurisdictions the question of negligence has been con- sidered in the matter of delivery. See Manhattan Bank v. Walker, 130 U. S. 267, 9 Sup. Ct. 519, 32 L. Ed. 959; Lancaster County Nat. Bank v. Smith, 62 Pa. 47; Heugh v. London & N. W. Ry. Co., L. R. 5 Exch. 51. When prop- erty in the custody of a bailee for hire is demanded by a third person under color of process, it is the bailee's duty to ascertain whether the process is such as required him to surrender, and, if the proceeding is illegal or void, he must refuse to surrender the property and adopt such means for reclaiming it, if taken, as a prudent man would had his own been taken under a claim of right without legal process. Morris Storage & Transfer Co. v. Wilkes, 1 Ga. App. 751, 58 S. E. 232. a* Rowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346; Lichtenhein v. Boston & P. R. Co., 11 Cush. (Mass.) 70; Hall v. Boston & W. R. Corp., 14 Allen (Mass.) 439, 92 Am. Dec. 783; Forsythe v. Walker, 9 Pa. 148; Collins v. Burns, 63 N. Y. 1; Dufour v. Mepham, 31 Mo. 577 ; McGinn v. Butler, 31 Iowa, 160 ; Stephenson v. Price, 30 Tex. 715; Willard v. Bridge, 4 Barb. (N. Y.) 361; Ala- bama & T. R. R. Co. v. Kidd, 35 Ala. 209. so Carle v. Bearce, 33 Me. 337, 340; Chase v. Gates, 33 Me. 363; Trefftz v. Canelli, L. R. 4 P. C. 277, 282 ; Lafarge v. Morgan, 11 Mart. (La.) 462. »8 Chattahoochee Nat. Bank v. Schley, 58 Ga. 369, 374. 42 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 instructions of his bailor and redelivering the goods to the bailor, when no adverse claim is brought to his attention. Upon notice of such adverse claim by the third party, the legality of this claim must be determined by the bailee on his own responsibility. He cannot disregard the claim, and if he does, and redelivers to the bailor, the bailee is responsible to the adverse claimant if his claim prove a just one. 67 Again, if the bailee yield to the claim by delivering the goods to the third person, he thereby becomes liable to the bailor, should such claim turn out to have no foun- dation in law. 88 When such adverse claim is made, the bailee, unless he is per- fectly sure of its validity, should refuse to deliver the goods to the third party and should call in his bailor to defend against such adverse claim. 89 If there be privity between the bailor and third person, the safest course for the bailee to pursue is to file a bill of interpleader in a court of equity, asking that the bailor and third person be brought into court and have the question of the owner- ship of the goods decided. 90 But, as we have seen, when the bailee himself undertakes to pass upon the merits of the opposing claims, he is absolutely responsible for a wrong decision. The bailee incurs no liability by surrendering the goods under valid process of law or the decree of a court of competent jurisdiction ; 91 but, 87 Wilson v. Anderton, 1 Barn. & Adol. (Eng.) 450. 88 Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; POWELL v. ROB- INSON, 76 Ala. 423, Dobie Cas. Bailments and Carriers, 33. es Schouler, Bailm. (2d Ed.) § 60 ; Story, Bailm. § 111; Bliven v. Hudson River R. Co., 35 Barb. (N. Y.) 188; POWELL v. ROBINSON, 76 Ala. 423, Dobie Cas. Bailments and Carriers, 33. soBechtel v. Sheaf er, 117 Pa. 555, 11 Atl. 889; Ball v. Liney, 48 N. T. 6, 13, 8 Am. Rep. 511; Banfield v. Haeger, 7 Abb. N. C. (N. Y.) 318. See, also, De Zouche v. Garrison, 140 Pa. 430, 21 Atl. 450; Hatfield v. McWhorter, 40 Ga. 269 ; note 91 Am. St. Rep. 608. But when no privity exists, the bailee cannot, in the absence of statute, compel them to interplead. Marvin v. Ell- wood, 11 Paige (N. Y.) 365; First Nat. Bank of Morristown v. Bininger, 26 N. J. Eq. 345; Bartlett v. His Imperial Majesty, The Sultan (C. C.) 23 Fed. 257; Bechtel v. Sheaf er, 117 Pa. 555, 11 Atl. 889. 8i Stiles v. Davis, 1 Black (U. S.) 101, 17 L. Ed. 33; French v. Star Union Transp. Co., 134 Mass. 288; Britton v. Aymar, 23 La. Ann. 63; Ohio & M. Ry. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727; Bliven v. Hudson River R. Co., 36 N. Y. 403 ; Robinson v. Memphis & C. R. Co. (C. C.) 16 Fed. 57; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145. When property is taken from a bailee's custody by valid legal process, the bailee must notify the bailor of the taking within a reasonable time, in order to protect himself from be- ing charged with the conversion of the property. Medina Gas & Electric Light Co. v. Buffalo Loan, Trust & Safe Deposit Co., 119 App. Div. 245, 104 N. Y. Supp. 625 ; MacDonnell v. Buffalo Loan, Trust & Safe Deposit Co, 193 N. Y. 92, 85 N. E. 801. § ]9) REDELIVERY OF BAILED GOODS BT THE BAILEE 43 if he can reasonably do so, the bailee must notify the bailor of the commencement of any such legal proceedings, in order to give the bailor opportunity to make a suitable defense. 82 It is, of course, a perfect defense for the bailee to show, when sued by the bailor, that he surrendered the goods, even without suit, to the person rightfully entitled to receive them. 03 As we have seen, the estoppel of the bailee to deny his bailor's title has no reference to such a case. This rule of estoppel applies only when the bailee sets up the adverse title for the purpose. of keeping the goods himself, and not to cases in which the bailee has yielded to the superior rights of another. The estoppel provided for in the rule ceases when the bailment on which it is founded is terminated by what is equivalent to an eviction by title paramount. 91 »2 Scrantom v. Farmers' & Mechanics' Bank of Rochester, 24 N. T. 424, 427; POWELL v. ROBINSON, 76 Ala. 423, Dobie Cas. Bailments and Carriers, 33. »a Gerber v. Monie, 56 Barb. (N. Y.) 652. But he takes the risk of showing that such person had a good title. Foltz v. Stevens, 54 111. 180; Dodge v. Meyer, 61 Cal. 405; Maxwell v. Houston, 67 N. C. 305. The bailee may show in defense that the bailor obtained the property from the real owner felonious- ly or by fraud. Bates v. Stanton, 1 Duer (N. Y.) 79; King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420; Kelly v. Patchell, 5 W. Va. 585. Where a bailee is sued in trover by the real owner, and compelled to pay the value of the goods, he may assert the title thus acquired in defense to an action of his bailor. Cook v. Holt, 48 N. Y. 275. o* Western Transp. Co. v. Barber, 56 N. Y. 544; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145; Wallace v. Matthews, 39 Ga. 617, 99 Am. Dec. 473; Bliven v. Hudson River R. Co., 36 N. Y. 403; King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420; Stephenson v. Price, 30 Tex. 715, 737. A bailee cannot, in an action brought against him by his bailor, set up the title of a third person, except by the authorization of that person. Dodge v. Meyer, 61 Cal. 405. A bailee may "not set up the claim of the true owner when the true owner has abandoned such claim. Betteley v. Reed, 3 Gale & D. 561. Al- though, in certain cases, a bailee may set up the jus tertii, yet, if he accepts the bailment with full knowledge of an adverse claim, he cannot afterwards set up the existence of such a claim as against his bailor. Ex parte Davies, In re Sadler,. 19 Ch. Div. 86. One borrowing property on promise ,to return it cannot release himself from his promise by purchasing a title adverse to that of the lender. Nudd v. Montanye, 38 Wis. 511, 20 Am. Rep. 25. A bailee is not permitted to dispute the title of his bailor, but he may show that the bailor has assigned his title to another, since the property was intrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger does not apply; the assignee is not a stranger. Roberts v. Noyes, 76 Me. 590. See, also, Biddle v. Bend, 6 Best. & S. 225, 233; Shelbury v. Scotsford, Yelv. (3d Ed. Translated) 23; Betteley v. Reed, 4 Q. B. 511, 517; DAVIS v. DONOHOE-KELLY BANKING CO., 152 Cal. 282, 92 Pac. 639, Dobie Cas. Bailments and Carriers, 29. 44 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 TERMINATION OF THE BAILMENT 20. The bailment may be terminated by: 1. Act of the parties. (a) By full performance of the bailment purpose or expira- tion of the time for which the bailment was created. (b) By mutual consent of the parties in all cases, and in some bailments at the option of one of the parties. (c) By the bailee's wrong, at the option of the bailor. 2. By operation of law. (a) By death of bailor or bailee, in some instances. (b) By change of legal status of the parties, in some cases. (c) By destruction of the bailed goods. The question of the termination of the bailment is discussed at some length under each separate class of bailments ; but a brief statement is here made applicable alike to all bailments. In this connection, it might be noted that in many works on bailments not a little inaccuracy is found as to the termination of the bail- ment, as a result of attempts to formulate broad rules applicable to all bailments, which fail to notice essential distinctions between the various classes of bailments. As to the various ways in which the termination of the bailment may be effected, a clear distinc- tion is seen between those ways which are (1) the positive acts of the parties themselves, and those ways in which (2) the law declares the bailment ended as a result of changed conditions brought about usually without regard to their effect on the bail- ment. Performance or Expiration of Time When the purpose of the bailment is fully accomplished, 911 or when th£ time expires for which the bailment was created, 96 the bailment in all cases comes to an end. The bailment thus ceases by natural limitations imposed upon it in its inception. This is, of course, true of all bailments. »» Lay's Ex'r v. Lawson's Adm'r, 23 Ala. 377 ; Chattahoochee Nat Bank ▼. Schley, 58 Ga. 369; Morse v. Androscoggin R. Co., 39 Me. 285; New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828 ; Ouderkirk v. Central Nat. Bank of Troy, 119 N. TC. 263, 23 N. E. 875. oe Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435; Benje T. Creagh's Adm'r, 21 Ala. 151. § 20) TERMINATION OF THE BAILMENT 45 Consent of the Parties The parties who created the bailment can alike destroy it. Any bailment can therefore be terminated by the mutual consent of both bailor and bailee. 97 The relation concerns the parties thereto ; the law, therefore, has no reason for keeping alive the relation when both the parties concerned wish to bring it to an end. The same result is reached when, without expressly consenting to the termina- tion of the relation, both bailor and bailee consent to the assuming of some relation towards the goods which is inconsistent with the continuance of the bailment. Some bailments may be terminated at the option of the bailor alone, some may be ended if the bailee so chooses, while still others can rightfully be terminated by neither party without the consent of the other. The termination of the bailment at the op- tion of one of the parties can be accurately discussed only in con- nection with the specific classes of bailments. Bailee's Wrong It is a general rule, applicable to all bailments, that the active wrong of the bailee does not of itself operate to bring the bailment to an end, but merely gives the bailor the right to terminate the bailment if he so desires. Thus, when the bailee transcends the contemplated purpose of the bailment and uses the bailed goods for a purpose utterly different from that stipulated in the bailment contract, or when the bailee grossly misuses the goods, this im- mediately confers on the bailor the option of terminating the bail- ment. 98 Death or Change of Legal Status in the Parties The effect of death, or a change of legal status on the part of the bailor or bailee, such as bankruptcy or insanity, varies widely according to the nature of the bailment. Under each of the three great classes of bailments, the question is treated at some length. Any attempt to formulate any general rules on the subject, com- mon to all bailments, would tend to confusion rather than clear- ness. 99 07 Story, Ballm. §§ 418, 418a; New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828; Minturm v. Stryker, 1 Edm. Sel. Cas. (N. T.) 356. »s Wentworth v. McDuffle, 48 N. H. 402; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; BARRINGER v. BURNS, 108 N. G. 606, 13 S. E. 142, Dobie Cas. Bailments and Carriers, 38. »» Story, Bailm. §§ 277, 418, 419; Schouler, Bailm. & C. §§ 56, 61, 156. 46 GENERAL PRINCIPLES COMMON TO ALL BAILMENTS (Ch. 2 Destruction of the Bailed Goods « This necessarily terminates any bailment, for after such destruc- tion 10 ° there is then nothing to which the relation can attach. A bailment without an existing subject-matter is a legal absurdity. The rights and liabilities of the bailor and bailee, upon such a de- struction, depend upon various considerations subsequently to be discussed. ioo New York, L. E. & W. E. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828; Masterson v. International & G. N. E. Co. (Tex. Civ. App. 1900) 55 S. W. 577. Ch. 3) BAILMENTS FOR THE BAILOR'S SOLE BENEFIT 47 CHAPTER III BAILMENTS FOR THE BAILOR'S SOLE BENEFIT 21. Depositum and Mandatum. 22. Nature of the Relation. 23. Absence of Compensation to Bailee. 24. Rights and Duties of the Parties. 25. Expenses of Carrying Out the Bailment 26. Liability for Nonfeasance and Misfeasance. 27. Use of Bailed Chattels by Bailee. 28. Interest of Bailor and Bailee. 29. Degree of Care to be Exercised by the. Bailee. 30. Termination of Bailment. 31. Redelivery of the Bailed Goods. DEPOSITUM AND MANDATUM 21. Bailments for the sole benefit of the bailor include (a) Depositum and (b) Mandatum. Introductory The distinctive feature of bailments for the bailor's sole benefit lies, of course, in the fact that all the benefit arising from the bail- ment relation accrues to the bailor, while the bailee receives no compensation or reward. Such bailments are usually divided into two classes : Gratuitous bailments of goods for mere custody, and gratuitous bailments of goods for the purpose of having active services performed concerning the goods. 1 The terminology employed to designate these classes is far from satisfactory. To call the gratuitous bailment for mere custody "depositum" and the gratuitous bailment for active services "man- datum" is objectionable, because these terms (as used in Roman law, from which they were borrowed), are not limited to, or syn- onymous with, the bailment relations to which they are applied. 2 i Story, Bailm. § 3. 2 See Morey, Outlines of Roman Law, p. 369 ; Sandars' Justinian (Ham- mond) p. 457. The term "mandate" is sometimes used in a sense not denot- ing a bailment relation at all. "The Roman mandate in fact — a term ap- parently derived from the fiction of giving one's right hand as symbolical of giving to another authority to act — meant in the vernacular simply to con- stitute a gratuitous agency. A wide, sweeping class of trusts was this, not confined to personalty, nor to things specific as distinguishable from property in the mass, nor necessarily occupied with property at all. An unpaid car- rier was for the time being a mandatary; but so, too, was an unpaid oral messenger or a naked attorney." Schouler, Bailm. p. 30. 48 BAILMENTS FOR THE BAILOR'S SOLE BENEFIT (Ch. 3 On the other hand, the use of the apparently cognate English words "deposit" and "mandate" is still more unfortunate, for these terms not only have indefinite meanings, but they also apply to legal relations which are not bailments at all. 8 Accordingly, it is believed that the Roman terms are clearer, if it is understood that they are to be used merely to designate the two classes of bail- ments for the bailor's sole benefit with no attempt to give to the terms their exact and scientific meanings under the Roman law. The two classes of bailments may- well be treated together, for the degree of diligence required and the other important legal con- sequences are the same in each case ; the only substantial differenc- es in the rights and duties of the parties being such as naturally and obviously result from the difference in the purpose of the bail-, ments. Depositum A depositum has already been defined ' as a bailment of goods for mere custody," without recompense. The bailor reaps all the benefit by having his goods kept without payment therefor. The bailee receives no benefit from the bailment; he keeps the goods purely as a gratuitous favor to the bailor. There are various other definitions of a depositum, 8 but it is sufficient here to indicate that essentially it is the bailment relation resulting from the delivery of a thing to be kept by the bailee without reward, and, further, that there are no duties demanded of the bailee towards the thing en- s Thus the ordinary "deposit" of money in a bank is not a bailment, while the word "mandate" signifies, in appellate proceedings, the precept or order of the higher court directing the action to be taken, or the disposition to be made of the case, by the lower court. Black's Law Dictionary, "Mandate." * Ante, p. 11. 6 A deposit is defined by Sir William Jones (Jones, Bailm. § 36) as being a naked bailment of goods, to be kept for the bailor without reward, and to be returned when he shall require it; but Judge Story (Story, Bailm. § 41) sug- gests as a correction that it is "a bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust." In his reason for this amendment, Judge Story embodies the fact emphasized in the definition of bailment as laid down in the first pages of this book; namely, that, on the termination of a bailment, the thing may either be returned to the bailor, or be delivered over to some third party, specified by the bailor. The definition given by Pothier (Pothier, Traitfi de Depot, note 1) is that a deposit is a contract by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it when he shall be requested. Ulpian (Com. Dig. lib. 16, tit 36 [1]) gives as a definition: "Depositum est quod custodiendum alicui datum est" (it is a deposit because it is given to some one to keep). See, also, Whiting v. Chicago, M. & St P. Ry. Co., 5 Dak. 90, 37 N. W. 222; BunneU v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St Rep. 519. § 21) DEPOSITUM AND MANDATUM 49 trusted to him which are not involved in merely keeping it for the bailor. 6 In the depositum, the bailor is usually called the "depositor" and the bailee the "depositary." The most important depositaries from a legal standpoint are finders of lost goods * and banks receiving special deposits. 8 An ordinary deposit of money in a bank, though, must not be confused with this last type of bailments. Such a de- posit is not a bailment, for the identical money need not be re- turned, but is rather in the nature of a commercial loan, and accord- ingly the relation which it creates is that of debtor and creditor, and not that of bailor and bailee. 9 But where gold, bonds, stocks, or other things of value, or even money, is deposited with a bank on the understanding that the identical thing deposited is to be « Thibaud v. Thibaud's Heirs, 1 La. 493. A., as the agent of B., deposits a sum of money with C., with a request that he will keep it until B. returns home (he being absent at the time), and then pay it to him, which O. agrees to do. Held, that C. is a depositary, and not liable to be sued for the money by B. until after a request to pay it Montgomery v. Evans, 8 Ga. 178. If a person consents that a deposit of money shall be made in his name in a bank, for the purpose of accommodating the owner, with no control over it other than to draw it out when the owner should direct, he will not be held liable ial use of the bailed article, is received by the bailee, and thCbailor is wholly without reward. Such a bailment contemplates the gratuitous loan of a chattel, to be used temporarily by the bailee for his own sole benefit, and then to be returned according to the bailor's direc- tions. 1 The fact that the sole benefit of the bailment accrues to 1 According to Sir William Jones (Bailm. 118), "lending for use is a bail- ment of a thing for a certain time, to be used by the borrower without paying for it." The civil-law definition is that it is the grant of a thing to be used by the grantee gratuitously for a limited time, and then to be specifically re- turned. Story, Bailm. § 219. In the words of Chancellor Kent (2 Comm., 13th Ed., 573), it is "a bailment or loan of an article for a certain time, to be used by the borrower without paying for the use." According to Ayliffe (Pand. bk. 4, tit. 16, p. 516), "it is a grant of something made in a gratuitous manner for some certain . use, and for a certain term of time, expressed or implied, to the end that the same species should be again returned or restored again to us, and not another species of the same kind or nature ; and this in as good a plight as when delivered to us." In COGGS v. BERNARD, 2 Ld. Raym. 909, 913, Dobie Cas. Bailments and Carriers, 1, Lord Holt says that a commodatum arises "when goods or chattels that are useful are lent to a friend, gratis, to be used by him." Of the modern authors, the definition of Schouler is worthy of attention. In this he says: "We may define the bailment as one for the temporary bene- 78 BAILMENTS FOB THE BAILEE'S SOLE BENEFIT (Ch. 4 the bailee constitutes, of course, the distinguishing characteris- tic of the bailment in question, and from this can be deduced the specific rules of law applicable to this bailment, which differ from the broad principles which apply alike to all classes of bailments. In the modern classification of bailments, bailments for the bailee's sole benefit correspond exactly with the Roman commoda- tum. 2 The English term "loan" or "lending," however, is not an exact translation of the Roman "commodatum." The word "loan" is broad enough to include both the commodatum and mutuum of the Roman law, while it has already been seen s that a mutuum, or the loan of goods for consumption by the borrower, involving the return of similar goods, is thus either a sale or ex- change, and not a bailment at all. A delivery of goods to another to be consumed in the use, without compensation therefor, would be a gift. The ordinary commercial loan of money, at interest, involves compensation on the part of the borrower and creates, the relation of debtor and creditor, without in any way touching the principles of law which control the bailment relation. The term "loan," therefore, when used to designate a bailment of this class, must be understood to mean a gratuitous loan, which con- templates the return of the specific thing loaned. flcial use, gratis, of a chattel which the borrower must return." A loan of property on condition that it shall be turned into a sale if certain payments are made does not subject the property in hands of the bailee to levy for the debts of the bailee. Clark v. Jack, 7 Watts (Pa.) 375. Where a slave is placed by his owner in the possession of a third person, "to take care of him, keep him until called for, and pay nothing for Ms hire during the time he might have him," this is a mere deposit, and doe's not amount to a contract of hiring. Farrow v. Bragg's Adm'r, 30 Ala. 261. For transactions held to be loans, and not gifts or sales, see Smith v. Jones, 8 Ark. 109 ; Boswell v. Clark- sons, 1 J. J. Marsh. (Ky.) 47. And see Morris v. Caldwell, 3 J. J. Marsh. (Ky.) 693; Breeding v. Thrielkeld, 6 J. J. Marsh. (Ky.) 378; Hinson v. Hin- son, 10 La. Ann. 580 ; Williams v. McGrade, 13 Minn. 174 (Gil. 165) ; Collier v. Poe, 16 N. C. 55; Hurd v. West, 7 Cow. (N. X.) 752; Otis v. Wood, 3 Wend. (N. Y.) 498. See, also, Francis v. Shrader, 67 111. 272 ; Chamberlin v. Cobb, 32 Iowa, 161 ; Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587 ; BELLER v. SCHTJLTZ, 44 Mich. 529, 7 N..W. 225, 38 Am. Rep. 280, Dobie Cas. Bail- ments and Carriers, 57; Apczynski v. Butkiewicz, 140 111. App. 375; Archer v. Walker, 38 Ind. 472. The delivering of a chattel by the owner to another to be used by the latter during life, and then returned, is not an attempt to create a remainder or a reversion in the property, but is a mere loan, the title remaining in the lender. Booth v. Terrell, 16 Ga. 20. 2 "Commodatum is a bailment where a chattel is lent by its owner to the bailee for the express purpose of conferring a benefit upon the latter, with- out any corresponding advantage to its owner." Halsbury, Laws of Eng. vol. 1, p. 537. » Ante, p. 11. 33) NATURE OF THE RELATION 79 NATURE OF THE RELATION 33. In addition to the circumstances common to all bailments, it is essential to the creation of a bailment for the bailee's c sole benefit — (a) That it be created by contract. (b) That it be without intended compensation to the bailor. (c) That it be for the exclusive use of the bailee. Must be Created by Contract It follows from the very definition of this class of bailments that the relation cannot be created except by contract. Only by the owner's consent can one acquire the right to use gratuitous- ly for his own benefit the goods of another. The use of goods is an important advantage resulting from ownership and unless the owner has by contract given another the right to use the goods, the law will not deprive the owner of such use gratuitously for the mere purpose of conferring it on another person. The con- tract creating such a bailment is governed by the rules of law that govern contracts in general.* Where possession is obtained under a contract that is invalid (but not fraudulent), a quasi bail- ment in the nature of a depositum is created by operation of law. Must be without Intended Compensation to the Bailor Absence of intended compensation to the bailor for the use of his chattel by the bailee is of the very essence of bailments of this class." The fact that the benefit flowing from the transaction ac- crues solely to the bailee is what distinguishes it from all other bailments and determines largely the measure of the bailee's duties. If any compensation, even though indirect or contingent, is to be paid to the bailor in any manner for the use of the bailed goods, such bailments would fall under another class — those for mutual benefit. Much that has been said as to what constitutes * See Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207 ; Campbell v. Stakes, 2 "Wend. (N. Y.) 137, 19 Am. Dec. 561 ; Baton v. Hill, 50 N. H. 235, 9 Am. Rep. 189 ; Jennings v. Rundall, 8 Term R. (Eng.) 335 ; Green v. Greenback, 4 E. C. L. 377 ; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561 ; Hagebush v. Ragland, 78 111. 40; State v. Bryant, 74 N. C. 124; Clark, Cr. Law, 250; Poth. Pret. a Usage, notes 13, 15 ; Story, Bailm. § 229. o Where valuable property is used for a considerable time, a hiring and not a loan will be presumed. Rider v. Union India Rubber Co., 28 N. Y. 379; Cullen v. Lord, 39 Iowa, 302. See, also, Davis v. Breon, 1 Ariz. 240, 25 Pac. 537; Dunham v. Kinnear, 1 Watts (Pa.) 130; Plimpton v. Gleason, 57 Vt. 604. 80 BAILMENTS FOR THE BAILEE'S SOLE BENEFIT (Ch. 4 a compensation (in regard to bailments for bailor's sole benefit)* is applicable here mutatis mutandis. Though, in the case of a commodatum, there is imposed on the bailee the duty of bearing the ordinary expenses incidental to the preservation of the property during the time of the bailment, 7 this fact does not operate to change the gratuitous nature of the, bailment. Thus, if a horse is gratuitously lent to a friend for a journey, he must bear the expenses of food and shelter for the horse during that journey, and even of getting the horse shod, if necessary ; for these are burdens naturally incident to the use of a horse. 8 However, where a horse or other chattel is lent in dis- tinct consideration of its keep, the bailment is one for hire. 9 The question, depending on the construction of the bailment contract, is whether such expense was the consideration for, or a mere inci- dent of, the bailment. Where the use of the property was the prin- cipal thing contemplated by the parties in creating the bailment, and the keep merely incidental, the bailment is a gratuitous loan. Where the custody and care of the property was also an object aimed at by the bailor in creating the bailment, then, the bailment is one for hire. Must be for Exclusive Use of Bailee From what has just been said, it is clear that in gratuitous loans, not only must the use be the principal rather than the mere in- cidental object of the bailment, but this use must also be exclu- sively for the bailee's benefit. If the use is for the joint benefit of the borrower and the lender, the bailment is no longer a gratuitous loan, but the benefit then becomes mutual and the bailment then falls into another class — those for the benefit of both bailor and bailee. e Ante, p. 53. t p st, p. 81. » BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carriers, 56 ; and the bailment here was held to be still a gratuitous one. » Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587. "Where the owner of an article of property is anxious to avoid tie expense and trouble of caring for it, at a season of the year when its use is not more than equivalent to the expense of keeping, and at his solicitation another agrees to keep it for its use, the lender is as much accommodated by the transaction as the borrower, and the benefit is mutual." Chamberlin v. Cobb, 32 Iowa, 161. In Neel v. State, 33 Tex. Cr. R. 408, 26 S. W. 726, it was held that an agreement where- by a person undertakes to make a horse gentle, and fit for the use of the owner's family, in consideration of permission to ride it, is a contract of hir- ing, and not a gratuitous loan. See, also, Height v. State (Tex. Cr. App.) 150 S. W. 908, where the bailee agreed to keep the piano in consideration of the right of bailee's child to use the piano, which, was held to be a mutual benefit bailment, and not gratuitous. § 35) EXPENSES OF THE BAILMENT 81 RIGHTS AND DUTIES OF THE PARTIES 34. The rights and duties of the bailor and bailee, here as in the case of other bailments, may be varied by special con- tract; but when these rights and duties are not covered by the contract of the parties, they will be implied by law from the nature of the bailment. The discussion that follows is a treatment of the rights and duties of the parties to a bailment for the bailee's sole benefit. 10 The ensuing discussion is concerned with the rights and duties of the parties where there is no express contract; or when there is such a contract, the discussion may be regarded as furnishing general principles of construction which will control in the absence of any direct provision in the contract as to the specific point in question. Here, as elsewhere, the parties may by contract vary their liabilities indefinitely and arbitrarily, provided their con- tract is neither in violation of positive law nor against public policy. 11 Of course, when a particular right or duty of the parties is clearly covered by a valid stipulation in the bailment contract, such stipulation must be given full effect. EXPENSES OF THE BAILMENT 35. The bailee must bear the ordinary expenses incidental to pre- serving the property while in use, but for any extra- ordinary expense the bailor is liable Ordinary and Extraordinary Expenses The bailee must bear the usual and ordinary expenses incident to the use of the thing loaned or necessary to its due preserva- tion. 12 As the bailee alone derives benefit from the use of the goods, it follows that he should bear the expenses which such i« "It is surprising how little in the way of decision In our courts is to be found in our boobs upon the obligations which a mere lender of a chattel for use contracts towards the borrower." Coleridge, J., in Blakemore v. Bristol & E. Ky. Co., 8 El. & Bl. (Eng.) 1035, 1050. And see Clapp v. Nelson, 12 Tex. 370, 62 Am. Dec. 530. For this scarcity of legal authority Mr. Schouler (Bailm. § 65) suggests as a _ reason that, when honor does not hold the borrower to his duty, delicacy restrains the lender from pursuing legal remedies. ii Ante, p. 18. 12 Harrington v. Snyder, 3 Barb. (N. Y.) 380; Handford v. Palmer, 2 Brod. & Bing. (Eng.) 359; 1 Domat, book 1, title 5, $ 3, art. 4. Doe. Bailm. — 6 82 BAILMENTS FOR THE BAILEE'S SOLE BENEFIT (Ch. 4 use necessarily entails. Thus where domestic animals, such as horses or cattle, are lent, the bailee must bear the expense of feed- ing and caring for these, and, as has been seen, the merely inci- dental benefit which the bailor receives in being relieved of such burden is not sufficient to change the gratuitous nature of the bailment. 13 But where extraordinary and unusual expenses become neces- sary for the preservation of the goods, these must be borne by the bailor. 1 * Thus, where a horse unexpectedly became dangerously sick, the bailor should bear the expenses of a veterinarian, called in by the bailee to attend the horse. If the bailee has advanced such expenses, the bailor must reimburse him; and it seems that the bailee may, under an implied agency, bind the bailor by contract in the latter's name when, under the peculiar circumstances of the particular case, such expenses are reasonable and necessary for the proper preservation of the bailed object. 1 * FRAUD IN PROCURING THE LOAN 36. Fraud in procuring the loan renders the borrower liable as an. insurer. Any fraud practised by the borrower to procure the loan vitiates the contract; for in such case the owner, owing to the fraud, has not legally consented to the taking and use of his property. The pretended borrower is no better than a trespasser. He is therefore absolutely liable for the goods entirely irrespective of the ques- tion of negligence. As far as the safety of the goods is concern- ed, he is an insurer. 16 The fraud may be either an express mis- representation or a fraudulent concealment of a fact under cir- cumstances such as to impose on the bailee the duty of disclosing the fact to the bailor ; " though in the first case the liability is much clearer. is BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carri- ers, 56. i*Harter v. Blanchard, 64 Barb. (N. T.) 617; Story, Bailm. §§ 273, 274; Jones, Bailm. p. 65. Pothier and Domat seem to place such expenses on the lender. This is not free from doubt, though. See, for example, 1 Halsbury, Laws of England, p. 539, note (i) , In which it is said : "But it is thought that this is not the law of England." ib If, as seems to be the case, these extraordinary expenses fall on the bailor, this would follow as in the cases of bailments for the bailor's sole, benefit. is Though not directly In point, see Campbell v. Stakes, 2 Wend. (N. T.) 137, 19 Am. Dec. 561; Cary v. Hotaillng, 1 Hill (N. Y.) 311, 37 Am. Dec. 323. it Judge Story' (Bailm. g 243) gives as an illustration of the doctrine of § 37) USB OP BAILED CHATTELS BY THE BAILEE 83 USE OF BAILED CHATTELS BY THE BAILEE 37. The borrower may use the bailed goods only for the pur- pose, at the place, and in the manner contemplated by the contract. The terms of the bailment contract prescribe the use of the bailed chattels by the bailee. This contract is at the same time the au- thority for, and the limitation of, the use of the goods on the bailee's part. Articles lent for one purpose cannot be used for another. The lender has a perfect right to fix the conditions upon which he is willing to lend his property. Where the lender has fixed the time, place, or mode of use, any departure from such limitations is a wrong, and renders the borrower absolutely and strictly liable as an insurer for all damage to the chattels bailed, regardless of the question of negligence. 18 This principle is one of general application to all bailments; but, in the case of gratu- itous loans, since the bailee alone receives a benefit, it applies with peculiar force and strictness. For example, to take a case sup- posed by Lord Holt, 19 if a man lends another his horse to go west- tacit fraud the following, taken originally from Pothier: If a soldier were to borrow the horse of a friend for a battle, expected to be fought the next morning, and were to conceal from the lender the fact that his own horse was as fit for the service, if the borrowed horse were slain in the engagement, the borrower would be responsible, for the natural presumption created by the concealment is that the horse of the borrower is unfit, or that he has none. But, if the borrower had frankly stated that fact, then the loss must be borne by the lender. is Collins v. Bennett, 46 N. Y. 490; Scranton v. Baxter, 4 Sandf. (N. Y.> 5; Buchanan v. Smith, 10 Hun (N. Y.) 474; WHE BLOCK v. WHEEL- WRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Isaack v. Clark, 2 Bulst. (Eng.) 306 ; Cullen v. Lord, 39 Iowa, 302 ; Kennedy v. Ashcraf t. 4 Bush (Ky.) 530 ; Stewart v. Davis, 31 Ark. 518, 25 Am. Bep. 576 ; Martin v. Cuthbertson, 64 N. C. 328; Booth v. Terrell, 16 Ga. 25; Lay's Ex'r v. Lawson's Adm'r, 23 Ala. 377; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310; Grant v. Ludlow's Adm'r, 8 Ohio St. 1. If, after a conversion, the owner receives the property back, he can still recover for any damage he has sustained; that is, the value of the property when received goes in mitigation of damages. Murray v. Burling, 10 Johns. (N. Y.) 172 ; Bowman v. Teall, 23 Wend. (N. Y.) 306, 35 Am. Dec. 562 ; Gibbs v. Chase, 10 Mass. 125 ; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66 ; Todd v. Figley, 7 Watts (Pa.) 542 ; Bayliss v. Fisher, 7 Bing. 153; Syeds v. Hay, 4 Term R. (Eng.) 260, 264. See, also, post, p. 105; BEL- LER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57. i»In COGGS v. BERNARD, 2 Ld. Raym. 909, 915, 916, Dobie Cas. Bail- ments and Carriers, 1. And see De Tollenere v. Fuller, 1 Mill, Const. (S. C> 117, 12 Am. Dec. 616 ; Vaughan v. Menlove, 3 Bing. N. C. 468, 475. 84 BAILMENTS FOR THE BAILEE'S SOLE BENEFIT (Ch. 4 ward or for a month, and the bailee goes northward or keeps the horse above a month, the bailee will be chargeable if any accident happens on the northern journey or after the expiration of the month, whether due to his negligence or not, because he has made use of the horse contrary to the contract under which it was lent to him, and from this contract alone all his rights as to the use of the horse were derived.? By accepting the horse under the contract, the bailee thereby effectively consents to its terms and accepts all the limitations on his use that such contract prescribes. A gratuitous loan is to be regarded as strictly personal to the bailee, unless, from the bailment contract or the circumstances surrounding the loan, a different intention can fairly and rea- sonably be presumed. 21 Hence the borrower has ordinarily no right to lend the goods to another, 22 or to permit a third person to participate in the use of them. Where the contract is silent on the point, it may at times be difficult to say whether the sur- rounding facts would imply the right of the bailee to permit any use of the goods by such third person. The presumed intention of the parties, of course, is controlling, and each case must rest on its own facts. 2 * 20 Stewart v. Davis, 31 Ark. 518; Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500. 2i BRINGLOE v. MORRIOE, 1 Mod. 210, 3 Salk. (Eng.) 271, Dobie Cas. Bailments and Carriers, 58; Scranton v. Baxter, 4 Sandf. (N. Y.) 5. See, al- so, Gwilliam v. Twist, 2 Q. B. (Eng.) (1895) 84. 22 Wilcox v. Hogan, 5 Ind. 546. 28 Scranton v. Baxter, 4 Sandf. (N. Y.) 5 ; Wilcox v. Hogan, 5 Ind. 546. In BRINGLOE v. MORRICB, 1 Mod. 210, 3 Salk. (Eng.) 241, Dobie Cas. Bailments and Carriers, 58, the plaintiff had loaned his horse to defendant to ride for pleasure, and it was held that the defendant had no right to permit his servant to ride the horse. But in Camoys v. Scurr, 9 C. & P. (Eng.) 383, it was held that one in possession of a horse for the purpose of trying it with a view to a purchase was entitled to put a competent person on the horse for the purpose of trying it, and was not limited to merely trying it himself. So, also, if a horse should be loaned for the bailee's use for a fixed time, it is a fair presumption that the parties intended that the bailee might use the horse through his servants. Every case must rest on its own facts. Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. One who borrows a vehicle having a seat for two may take another person with him, unless otherwise stipulated. Harrington v. Snyder, 3 Barb. (N. Y.) 380. The bailee is not liable for depreciation due to the contemplated use. BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bail- ments and Carriers, 57; Parker v. Gaines (Ark.) 11 S. W. 693. "Thus the loan of a traction engine, a threshing machine, or some other piece of ma- chinery must, in the majority of cases, of necessity imply both superintendence and use by some person other than the actual and responsible borrower." 1 Halsbury, Laws of England, p. 540. See, also, for hypothetical cases Story, Bailm. § 234. § 38) INTEBEST OF THE BAILEE 85 INTEREST OF THE BAILEE 38. When the loan is neither for a definite time nor for a specific purpose, clearly the bailee has merely a possessory inter- est as to the chattels bailed. But when the loan is cre- ated for a definite time or for a definite purpose, the bailee (it would seem), having once entered upon the bailment, has a special property in the goods. There is much of the same confusion of ideas in regard to the nature of the borrower's interest in the goods lent under a com- modatum that exists as to the bailee's interest in a depositum or mandatum. Some authors claim that the borrower has a special property in the subject of the loan ; 24 others maintain that he has merely a possessory interest. 20 It would seem that, in order to determine the true rule as to the interest of the bailee in the chat- tels bailed, a distinction must be made between (a) those loans which are created for a definite time or a specific purpose, and (b) those which are created for an indefinite time or an indefinite pur- pose. 26 Under (b), the loan (being neither for a definite time nor for a specific purpose) is terminable at any time at the option of the bailor. Now the idea of a special property in a thing (as we have seen) involves the idea of a right to the thing which can be asserted against the world. Therefore, in these indefinite bail- ments (b), the right of the bailee can hardly be said to rise above the dignity of a mere possessory interest. 2* See Schouler, Bailm. § 81 ; Goddard, Bailm. & Carr. § 58. Both of these writers recognize the distinction between the bailment for an indefinite time and the bailment for a definite time or specific purpose, contending for the special property (or its legal equivalent) only as to bailments of the latter type. Direct authority in such cases seems lacking. The cases usually cited are usually (if bailments at all) either bailments for the bailor's sole benefit or bailments for hire. Many writers lay down general rules as to gratuitous bailments, making no distinction between bailments In which the bailee re- ceives all the benefit and those in which he receives none. 2»2 Kent, Comm. 574: "The borrower has no special property in the thing loaned, though his possession is sufficient for him to protect it by an action of trespass against a wrongdoer." See, also, Van Zile, Bailm. & Carr. § 105. LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71, quotes the above passage from Kent, though that case was one of hiring. 2 6 This distinction, with the attendant difference as to the nature of the bailee's interest here, seems right on principle. Authority in decided cases, when this question was necessarily passed on by the court as a controlling question, is lamentably scarce. See note 24. 86 BAILMENTS FOR THE BAILEE'S SOLE BENEFIT (Ch. 4 Under (a), however, the bailment being either for a definite time or a specific purpose, the bailee (having once entered upon the bailment) has rights in the goods, which he can assert, not only against third persons, but even against the bailor. The bailee can then as against all the world retain possession of the goods until the expiration of the time or the accomplishment of the bail- ment purpose. It therefore seems proper to say here that the bailee has a special property in the goods. His right is in the thing and exists as an in rem right, without regard to persons. Of course a mere agreement by the owner to make a loan of the goods to another, even for a definite time or purpose (unaccom- panied by any delivery of the goods), is not a bailment at all. It is a mere executory contract, and as long as it remains such, as it is not based upon any consideration, it is unenforceable. 27 RIGHT OF BAILOR AND BAILEE TO BRING SUIT 39. Either the borrower bailee or the lender bailor may, in an appropriate action, sue third persons for wrongful in- terference with the bailed chattels. The right of the bailor or bailee to bring suit for a wrongful interference with the bailed chattels is but a phase of, or a deduc- tion from, the principles discussed in the preceding section. The bailee borrower may maintain, by virtue of his interest, an appro- priate action against a third party for the wrongful disturbance of his possession, 28 and it is generally held that the bailee's action 27 The bailee here cannot enforce the executory contract for a gratuitous loan, just as the bailor cannot enforce such a contract looking to a bailment for the bailor's sole benefit. In both cases there is a mere executory contract, unsupported' by a consideration, and no bailment at all. See THORNE v. DEAS, 4 Johns. (N. Y.) 84, Dobie Cas. Bailments and Carriers, 47; Crosby v. German, 4 Wis. 373 : Elsee v. Gatward, 5 Term R. (Eng.) 143 ; Shillibeer v. Glyn, 2 Mees. & W. (Eng.) 143. as CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Dobie Cas. Bail- ments and Carriers, 59 ; Paddock v. Wing, 16 How. Prac. (N. Y.) 547 ; Hurd v. West, 7 Cow. (N. Y.) 753 ; Hendricks v. Decker, 35 Barb. (N. Y.) 298 ; Bar- ker v. Miller, 6 Johns. (N. Y.) 195 ; Duncan v. Spear, 11 Wend. (N. Y.) 54 : Badlam v. Tucker, 1 Pick. (Mass.) 3S9, 11 Am. Dec. 202 ; Nicolls v. Bastard 2 Cromp., M. & R. (Eng.) 859; Burton v. Hughes, 2 Bing. (Eng.) 173; but- to n v. Bu ck. 2 Taunt. (Eng.) 302 ; R ooth v. Wilson, 1 Barn. & Aid. (Eng.) 59. As to trover by the bailee, see Waterman v. Robinson, 5 Mass. 303 ; Burton v. Hughes, supra; Armors. y, Delamirie. 1 Strange (Eng.) 505; Ogle v. At- kinson, 5 Taunt. (Eng.) 759. The bailee may sue and recover, although he Is not liable to the bailor. Where a bailee received a horse from the owner with the understanding that he might use him, and, If satisfied with him, pur- § 39) EIGHT OF BAILOE AND BAILEE TO BRING SUIT 87 here may be either in trespass or trover; and, at least when the bailee has a special property in the goods, there seems to be no reason why the action of replevin should not lie. An action may also be maintained by the bailor lender. 29 A complete recovery by either the bailor or bailee is a bar to any action by the other. 80 Any excess beyond his own interest that the bailee recovers is held by him, of course, as trustee for the bailor. What was said, however, under bailments for bailor's sole benefit,** in regard to modern authority casting doubt on this last proposition, and advocating the doctrine that the interests of the bailor and bailee (which are separable and can be separately valued) should be protected by separate suits brought by each to recover only his own loss, is more strongly applicable here, since the bailee's interest is much more real. chase him, held, that such bailee had a sufficient right of property in the horse to maintain an action against a party to whom he had let the horse, for in- juries resulting from overdriving. Harrison v. Marshall, 4 B. D. Smith (N. Y.) 271. And see White v. Philbrick, 5 Greenl. (Me.) 147, 17 Am. Dec. 214 ; Campbell v. Phelps, 1 Pick. (Mass.) 62, 11 Am. Dec. 139; Adams v. Brough- ton, 2 Strange (Eng.) 1078; Lamine v. Dorrell,^ Ld. Raym. (Bng.) 1216; Broome v. Wooter, Yel. (Eng.) 67j. Cf. LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71, with Lockhart v. West- ern & A. R. R., 73 Ga. 472, 54 Am. Rep. 883. See, also, Baggett v. McCormack, 73 Miss. 552, 19 South. 89, 55 Am. St. Rep. 554; Gillette v. Goodspeed, 69 Conn. 363, 37 Atl. 973 ; The Winkfleld (Eng.) C. A. (1902) 42. 2SORSER v. STORMS,in3ow. (N." Y.) 687, 18 Am. Dec. 543, Dobie Cas. Bailments and Carriers, 60 ; Thorp v. Burling, 11 Johns. (N. Y.) 285 ; Hurd v. West, 7 'Cow. (N. Y.) 753; Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346; Hoyt v. Gelston, 13 Johns. (N. Y.) 141; Booth v. Terrell, 16 Ga. 21, 25 ; Smith v. Milles, 1 Term R. (Eng.) 475, 480 ; Lotan v. Cross, 2 Camp. (Eng.) 464 ; Nicolls v. Bastard, 2 Cromp., M. & R. (Eng.) 659. And see Roberts v. Wyatt, 2 Taunt. (Eng.) 268, 275. In ORSER v. STORMS, 9 Cow. (N. Y.) 687, 18 Am. Dec. 543, Dobie Cas. Bailments and Carriers, 60, it was held that one who had a right to personal property loaned for an indefinite time might maintain trespass for the taking of it The court said : "The first question to be considered is whether the plaintiff had such a property in the cattle as to be able to maintain trespass. For this purpose he must have had the actual or constructive possession at the time; and the latter is when he has such a right as to be entitled to reduce the goods to actual possession at any time. * * * In my opinion, the plaintiff had the right to bring this action." See, also, Pulliam v. Burlingame, 81 Mo. Ill, 51 Am. Rep. 229. As holding that a lender for a fixed time has not such constructive possession, see Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346 ; Hoyt v. Gelston, 13 Johns. (N. Y.) 142; Buck v. Aikin, 1 Wend. (N. Y.) 466, 19 Am. Dec. 535. The bailor may maintain trespass against one who wrongfully takes the goods from the bailee even by legal process. Root v. Chandler, 10 Wend. (N. Y.) 110, 25 Am. Dec. 546. so Faulkner v. Brown, 13 Wend. (N. Y.) 63 ; Hall v. Tuttle, 2 Wend. (N. Y.) 475, 479 ; Flewellin v. Rave, 1 Bulst. (Eng.) 68. si Ante, p. 64. 88 BAILMENTS FOE THE BAILEE'S SOLE BENEFIT (Ch. 4 DEGREE OF CARE TO BE EXERCISED BY THE BAILEE 40. The bailee in a gratuitous loan is held to the exercise of great or extraordinary care or diligence. As the comparative benefit accruing to the bailee is, in the class of bailments under consideration, greater than in either of the other two classes, it is only fair to exact of the bailee a cor- respondingly higher degree of care. If in bailments for the bailor's sole benefit only slight care is exacted of the bailee, and if in mu- tual benefit bailments the standard is set higher at ordinary care, it seems, natural to continue the progressive scale, and, in bail- ments for the bailee's sole benefit, to require a degree of care that is, in turn, greater than ordinary care. And so the bailee's duty here is fixed at great care s2 or extraordinary diligence, the two terms being used interchangeably. 82 Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Phillips v. Coudon, 14 111. 84; BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carriers, 56; Hagebush v. Ragland; 78 111. 40; Howard v. Babcock, 21 111. 259; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680 ; FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61; Ross v. Clark, 27 Mo. 549 ; Wood v. McClure, 7 Ind. 155 ; Carpenter v. Branch, 13 Vt 161, 37 Am. Dec. 587 ; Vaughan v. Menlove, 3 Bing. (N. C.) 468, 475. If bailment be for exclusive benefit of bailee, greatest care and attention is necessary to dis- charge him in case of loss ; hence bailee of negress was held liable when he sent her where smallpox was known to be raging, and she sickened and died of that disease. De Tollenere v. Puller, 1 Mill, Const. (S. C.) 117, 12 Am. Dec. 616. In Watkins v. Roberts, 28 Ind. 167, which was a suit for the value of a borrowed horse, the answer was that the horse was borrowed to go to a certain place and return, and that while on his way, and without fault or negligence on his part, the borrower was met by soldiers, who took the horse by force. The answer was held good. In De Fonclear v. Shottenkirk, 3 Johns. (N. Y.) 170, where it was shown that a slave was delivered to a party on trial, and that, upon being allowed to go on an errand, he ran away, it was held that the bailee was not responsible. Where a horse loaned by plaintiff to defendant was carried to defendant's house, and placed in the common horse lot, so used for many years, though it was somewhat slant- ing, and the horse, being nearly blind, and the weather being wet, slipped and fell upon a stump, breaking its thigh, held, that these facts did not import such negligence as to render defendant liable for the loss of the property. FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61. Owner of a flag lent it to his employer, helped to hoist it on employer's build- ing, and left it flying when he wefit away. It was afterwards injured by a hailstorm. Held, in absence of proof of negligence, that borrower was not liable. BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57. One who, at owner's request, takes a drive in a sulky, is liable for injury to it occasioned by his want of com- mon prudence. Carpenter v. Branch, 13 Vt 161, 37 Am. Dec. 587. In a suit § 40)' DEGREE OF CASE TO BE EXERCISED BT THE BAILEE 89 The duty of gratuitous borrowers of goods, however, is measured m terms of care, and they are responsible only for negligence, which is the failure to exercise the requisite degree of care. They are never (in spite of the fact that theirs is all the benefit accruing from the bailment) absolutely responsible as insurers for loss or injury, unless they have made themselves thus liable either by specific contract or by their positive wrong. 88 In the absence, then, of such contract or positive wrong, the gratuitous borrower, who has exercised such great care or extraordinary^ diligence, is not responsible for loss of, or damage to, the goods lent. 34 And it then is immaterial how such loss or damage occurred. He is not liable for loss or damage due to inevitable accident, vis major, or the ordinary wear and tear, 88 unless he negligently or willfully exposed the goods to the danger of such loss, or negligently failed to avert the danger after it became imminent." 6 brought by the lender against the borrower of a horse, which died in the possession of the latter, after the plaintiff proved the character of the bail- ment and the death of the horse in the bailee's hands, it devolved on the lat- ter to show he had exercised the degree of care required by the nature of the bailment. BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carriers, 56. And see Logan v. Mathews, 6 Pa. 417 ; Bush v. Miller, 13 Barb. (N. T.) 481 ; Beardslee v. Richardson, 11 Wend. (N. T.) 25, 25 Am. Dec. 596 ; Piatt v. Hibbard, 7 Cow. (N. T.) 497, note; Doorman v. Jenkins, 2 Adol. & E. (Eng.) 256, 259; Marsh v. Home, 5 Barn. & C. (Eng.) 322 ; Harris v. Pack- wood, 3 Taunt. (Eng.) 264. If an injury happen to property in the hands of the borrower, the interference of the lender to remedy the evil will not re- lease the bailee from responsibility for negligence. Todd v. Pigley, 7 Watts (Pa.) 542; Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677. And see Bayliss v. Fisher, 7 Bing. (Eng.) 153. See, generally, BENNETT v. O'BRIEN, 37 111. 250, Dobie Cas. Bailments and Carriers, 56 ; Phillips v. Cou- don, 14 111. 84 ; Moore v. Westervelt, 27 N. Y. 234, 243 ; ESMAY v. FANNING, 9 Barb. (N. Y.) 176, Dobie Cas. Bailments and Carriers, 36. A gratuitous bailee for his own benefit is bound to the exercise of extraordinary care. Apczynski v. Butkiewicz, 140 111. App. 375. "As he [borrower bailee] alone receives benefit from the contract, he is liable for negligence, however slight; and he is bound to exercise the utmost degree of care in regard to the chattel bailed." 1 Halsbury, Laws of England, p. 538. »s Archer v. Walker, 38 Ind. 472. But see Watkins v. Roberts, 28 Ind. 167 ; SELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57 ; Apczynski v. Butkiewicz, 140 111. App. 375. See, also, cases cited in preceding note. 3* Casey v. Suter, 36 Md. 1 ; World's Columbian Exposition Co. v. Republic of France, 91 Fed. 64, 33 C. C. A. 333 ; Wilson v. Rockland Mfg. Co., 2 Har. (Del.) 67. See, also, cases cited in note 32. as Hyland v. Paul, 33 Barb. (N. Y.) 245 ; Watkins v. Roberts, 28 Ind. 167 ; Wood v. McClure, 7 Ind. 155; FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61 ; Abraham v. Nunn, 42 Ala. 51 ; Yale v. Oliver, 21 La. Ann. 454 ; Blakemore v. Bristol & E. By. Co. (Eng.) 8 E. & B. 1035 ; Pomfret v. Ricroft, 1 Saund. (Eng.) 321, 323. 86 See Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426 ; Bowman v. Teall. 90 BAILMENTS FOR THE BAILEE'S SOLE BENEFIT (Ch. 4 Lord Holt" said that the borrower is bound to "the strictest care and diligence; * * * that, if the bailee be guilty of the least neglect, he will be answerable." This was substantially the rule of the Roman Law, where "exactissima diligentia" marked the degree of diligence exacted. 38 The rule at common law requires such diligence as a person of more than ordinary prudence would bestow upon his own property under like circumstances. Extraordinary care, then, is about as far above ordinary care as slight care is below it ; S9 while the same considerations and diffi- culties apply in judging how far the great care is above ordinary care as in judging how far below it is the slight care. Much that was formerly said in that connection 40 is equally applicable here. Each, in an individual case, is a question of fact for the jury. Just as the conduct of that hypothetical being, the ordinarily prudent man, in caring for his own goods under like circumstances is- the more or less concrete criterion by which ordinary care is judged, so we judge slight care by the man of less than ordinary prudence and extraordinary care by the man of more than ordi- nary diligence. Up to this extraordinarily careful man, then, must the gratuitous borrower measure or else be guilty of negligence. Here, as in the case of bailments for the bailor's sole benefit, the doctrine of estoppel can be invoked against the bailor to pre- vent his recovering damages when loss or injury to the goods is the result of conditions (such as the character of the bailee and the place or manner in which the goods are to be kept) which were well known to the bailor at the time the bailment was cre- ated. 41 Here, too, is equally applicable what was there said as to 23 Wend. (N. Y.) 310, 35 Am. Dec. 562; Wing v. New York & B. R. Co., 1 Hilt (N. Y.) 235; Davis v. Garrett, 6 Eing. (Eng.) 716. 37 In C0G6S v. BERNARD, 2 Ld. Raym. (Eng.) 909, 915, Dobie Cas. Bail- ments and Carriers, 1. as See Story, Bailm. § 238. so See Mason v. St. Louis Union Stock Yards Co., 60 Mo. App. 93 ; Whiting v. Chicago, M. & St. P. Ry. Co., 5 Dak. 90, 37 N. W. 222. See, also, cases cited in note 32. *o Ante, §§ 16, 29. « A borrower's character, habits, and skill, so far as known to the lender, may be considered in determining what care or skill was expected by the parties. The lender cannot require greater skill on the part of the borrower than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and the owner knew him to be such, the circumspection of an experienced rider cannot be required; and what would be negligence in the one would not be so in the other. Mooers v. Larry, 15 Gray (Mass.) 451; Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234 ; Eastman v. Patterson, 38 Vt. 146 ; Beale v. South Devon Ry. Co., 12 Wkly. Rep. (Eng.) 1115; Wilson v. Brett, 11 Mees. & W. (Eng.) 113; « -41) TERMINATION OF THE BAILMENT 91 express or implied representations as to the bailee's possession of special knowledge or peculiar skill.** TERMINATION OF THE BAILMENT 41. The gratuitous loan for use may be terminated by: (1) Acts of the parties. (a) Accomplishment of the bailment purpose or expiration of the time for which the bailment was created. (b) Mutual consent of both bailor and bailee. (c) Positive wrong of bailee, at the option of the bailor. (d) Option of either bailor or bailee, under certain circum- stances. (2) Operation of law. (a) Destruction of the bailed goods. (b) Death of bailor or bailee, under certain circumstances. (c) Change in legal status of bailor or bailee, under cer- tain circumstances. Termination by Causes Terminating- All Bailments The termination of bailments in general by consent of both bailor and bailee, by the accomplishment of the bailment purpose or expiration of time, by positive wrong of the bailee, or by de- struction of the bailed goods has already been discussed. 43 As this discussion is true of all bailments, including the loan for use, no further statement here is either necessary or desirable. So we proceed to discuss those cases in which the loan for use pre- sents distinctive features not common to all bailments. Termination by Option of Bailor or Bailee As the sole benefit of the transaction accrues to the bailee, and the bailor, therefore, has no interest in having the bailment rela- tion continued, it would seem that the bailee may terminate the bailment at any time. 44 In a bailment for a definite time or specific purpose, the bailee (having once entered upon the bailment) has, as we have seen, a special property in the goods, which he can assert against all the world, including the bailor. 46 Such a bailment, therefore, can- FORTUNE v. HARRIS, 51 N. 0. 532, Dobie Cas. Bailments and Carriers, 61 ; Story, Bailm. § 245; 2 Kent, Comm. 575, and note. 42 Ante, p. 70. 43 Ante, § 20. 4* Just as in bailments for the bailor's sole benefit, the bailment may at any time be terminated by the bailor. 45 Ante, p. 86. 92 BAILMENTS FOR THE BAILEE'S SOLE BENEFIT (Ch,4 not be terminated at the mere option of the bailor. 48 When the bailment is not for a definite time or specific purpose, however, the rights of the bailee are at best a more or less precarious posses- sory interest as against the bailor, though such interest, during its continuance, however, is complete in so far as third persons are concerned. Here, from what has been said, such indefinite bailment can accordingly be terminated at any time at the bailor's option. 47 Termination by Death First, as to the death of the bailor. When the bailment is for a definite time or specific purpose, the special property of the bailee in the goods is not affected by the bailor's death, but the bailee can assert his right to keep the goods until the expiration of such •time or the accomplishment of such purpose as against the per- sonal representative of the bailor. 48 In indefinite bailments, how- ever, the mere possessory interest of the bailee is terminated by the death of the bailor, and the right to reclaim the goods im- mediately vests in the bailor's personal representative. We have already had occasion to discuss the personal nature of the loan for use, and we have seen that the bailee has ordina- rily no right to transfer his interest and give another the right to use the goods which he himself has. Hence, on the death of the bailee, the very object for which the loan was created, namely, to " The better view is that, when the loan is for a definite time, the lender cannot terminate the loan before that time. This was the rule of the civil law. The detriment to the borrower in failing to make other arrangements for his needs is a sufficient consideration to bind the lender to his promise. The borrower's distinct wrong or violation of the contract gives the lender a right to recall the loan. See Root v. Chandler, 10 Wend. (N. Y.) 110, 25 Am. Dec. 546 ; Hoyt v. Gelston, 13 Johns. (N. T.) 142 ; BRINGLOE v. MORRICE, 1 Mod. (Eng.) 210, Dobie Cas. Bailments and Carriers, 58. See, also, Story, Bailm. §§ 258, 271, 277 ; Schouler, Bailm. 87. " Putnam v. Wyley, 8 Johns. (N. T.) 432, 5 Am. Dec. 346; ORSER v. STORMS, 9 Cow. (N. Y.) 687, 18 Am. Dec. 543 ; Dobie Cas. Bailments and Car- riers, 60 ; Neff v. Thompson, 8 Barb. (N. Y.) 213 ; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680 ; Pulliam v. Burlingame, 81 Mo. Ill, 116, 51 Am. Rep. 229 ; Clapp v. Nelson, 12 Tex. 370, 62 Am. Dec. 530 ; Lyle v. Perry, 1 Dyer, 486; Smith v. Milles, 1 Term R. 480; Taylor v. Lendey, 9 East, 49 ; Clark's Case, 2 Leon. 30. Where loan is for indefinite time, lender must make demand before bringing suit. Payne v. Gardiner, 29 N. Y. 146. Until a demand and refusal to return property loaned for an indefinite time, the statute of limitations does not begin to run against the bailor. Payne v. Gardiner, 29 N. Y. 146 ; Kelsey v. Griswold, 6 Barb. (N. Y.) 436 ; Hunting- ton v. Douglass, 1 Rob. (N. Y.) 204,; Bruce v. Tilson, 25 N. Y. 194; Roberts v. Berdell, 61 Barb. (N. Y.) 37; Roberts v. Sykes, 30 Barb. (N. Y.) 173. 4s it seems that this would logically follow from the bailee's special prop- erty in the goods, if that be conceded. § 41) TERMINATION OF THE BAILMENT 93 confer a personal favor or benefit on such bailee, necessarily no longer exists. The passing of the interest of a person after his death to his representative is sometimes called an assignment by operation of law. These considerations would seem to justify the rule, even in bailments for a definite time or specific purpose, that the loan for use (which is gratuitous) is terminated on the death of the bailee. 49 Termination by Change of Legal Status of Parties— Bankruptcy The bankruptcy of the bailor, if the loan is an indefinite one (so that the bailee has only a possessory interest), it would seem, terminates the bailment; the bailor's right to the goods passing to the bankrupt's trustee. The federal Bankrupt Act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), however, recognizes and preserves valid liens, and the term "lien" is given a very broad meaning. The special property of the bailee (in bailments for definite time or specific purpose), then, it would seem, is not affected by the bankruptcy of the bailor, 60 provided, of course, the bailment is not in any way fraudulent under the Act. The bankruptcy of the bailee, by transferring the administration of his business affairs to his trustee and indicating that he is unable to meet his financial obligations, renders him unable to perform properly the duties of a bailee, and at least (it would seem) gives the bailor the right to terminate the bailment if the bailee's bankruptcy does not operate of itself to bring the bail- ment to an end. It hardly seems fair to presume that the bailor intended the continuance of the gratuitous personal benefit confer- red on the bailee, after the bankruptcy of the latter. Same — Insanity The insanity of the bailor probably terminates an indefinite loan (in which the bailee has only a possessory interest), and the right to the goods loaned passes to the insane person's com- mittee. The bailor's insanity, it would seem, does not affect the special property of the bailee, where the loan is definite as to time or specific as to purpose, provided, of course, that the bail- ment was created while the bailor was sane. The bailee's insani- ty renders him utterly unfit to perform any of the duties of a bailee, and it seems that it would therefore operate as an immediate termination of all loans for use. It would scarcely seem fair to infer that the bailor contemplated continuing gratuitous benefit on the bailee during the latter's insanity, with all the attendant risks. 4» See Farrow v. Bragg's Adm'r, 30 Ala. 261; Smiley v. Allen, 13 Allen (Mass.) 465 ; Morris v. Lowe, 97 Tenn. 243, 36 S. W. 1098. b« See 1 Loveland on Bankruptcy (4th Ed.) §§ 310, 435. 94 BAILMENTS FOE THE BAILEE'S SOLE BENEFIT (Ch. 4 Same — Marriage of Woman The marriage of a woman at common law, owing to the tre- mendous change wrought as to her legal status, whether she be bailor or bailee, would probably terminate the gratuitous loan. Under modern emancipation acts, however, which practically give the rights of a feme sole to a married woman, her marriage would hardly affect a bailment. REDELIVERY OF THE BAILED GOODS 42. The general principles affecting the delivery of goods by the bailee on the termination of the bailment are the same here as in other classes of bailments. The place of delivery, in the absence of any contrary provision, should be the bailor's house, factory, or store. The primary duty of the bailee, on the termination of the bail- ment, is the redelivery of the goods forming the subject-matter of the now extinct bailment. In general, the rules of law affecting the various aspects of such redelivery as to a gratuitous loan for use are those applicable to bailments in general. 61 Brief mention should be made, however, of one distinctive feature of the gratu- itous loan, the place of delivery. Place of Delivery In regard to the place at which, on the termination of the gra- tuitous loan, the goods should be returned by the borrower, only 5i See ante, p. . The thing borrowed is not only to be returned, but everything that is accessorial to it. Thus, the young of an animal, born during the time of the loan, is to be restored ; and the income of stock, which has been lent to the borrower to enable him to pledge it, as a temporary security, also belongs to the lender. ORSEB v. STOEMS, 9 Cow. (N. T.) 687, 18 Am. Dec. 543, Dobie Cas. Bailments and Carriers, 60 ; Hasbrouck v. Van- dervoort, 4 Sandf. (N. X.) 74; Booth v. Terrell, 16 Ga. 20, 25; Allen v. Delano, 55 Me. 113, 92 Am. Dec. 573. When no time has been fixed for a termination of the loan, the return must be made in a reasonable time. Wil- cox v. Hogan, 5 Ind. 546; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; Ross v. Clark, 27 Mo. 549; Lay's Ex'r v. Lawson's Adm'r, 23 Ala. 377. The bailee is liable for breach of contract if he fails to return at the time specified. Fox v. Pruden, 3 Daly (N. Y.) 187; Clapp v. Nelson, 12 Tex. 370, 62 Am. Dec. 530. The borrower is bound to return the article loaned at the time stipulated, or, if no time is fixed, in a reasonable time; and whether it had become his duty to return it or not, where a loss occur- red, is a question of fact, to be found by a jury. Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680. Where there has been a temporary ex- change of articles of property, there is no principle that requires that the one shall be returned to the former owner before the other can be recovered. Hoell v. Paul, 49 N. C. 75. § 42) REDELIVERY OF THE BAILED GOODS 95 general principles can be laid down. When the bailment contract covers this point, that will, of course, be controlling. If, however, no particular place is pointed out by the contract, and no specific place can be reasonably inferred from custom, usage, or the cir- cumstances of the transaction, the normal place of delivery would be the dwelling, factory, or store of the lender." The reason for this is that, since the bailor receives no benefit from the bail- ment, his convenience (rather than that of the bailee, receiving all the benefit) should be consulted and as little trouble as pos- sible should be given to him. It therefore seems reasonable that the bailee should bring the goods to the bailor rather than that the bailor should be compelled to go for them to the bailee. If the bailor has in the meantime removed his domicile to another place, the bailee is not bound to return the thing at the new residence; but he is bound only to return it at the former residence, unless, indeed, there is but a trifling difference in the distance between them. The common law seems not to have laid down any definite or special rules on the subject, but has left the decision to be determined by the varying and particular circum- stances of each individual case, according to the presumed intention of the parties. A demand by the bailor for the return of the goods (as is true of other bailments) need not be made at the place of de- livery. 02 The plaintiff loaned his carriage, in June, to the defendant, it being then stored at a stable in the city in which both parties resided ; and, in Decem- ber following, the defendant returned it to the same stable, after the stable 1 keeper had ceased to be plaintiff's agent. Held a conversion. It should have been returned to plaintiff at his residence. ESMAY v. FANNING, 9 Barb. (N. T.) 176, 5 How. Prac. (N. Y.) 228, Dobie Cas. Bailments and Carriers, 36. And see Rutgers v. Lucet, 2 Johns. Cas. (N. Y.) 92. BAILMENTS FOE MUTUAL BENEFIT HIRED USB OF THINGS (Ch. 5 CHAPTER V BAILMENTS FOR MUTUAL BENEFIT— HIRED USE OF THINGS 43. Classification of Mutual Benefit Bailments. 44. Locatio or Hiring — In General. 45. Nature of the Relation. 46. Locatio Rei, or the Hired Use of a Thing. 47. Use of Bailed Chattels by the Bailee. 48. Interest of the Bailee — Right to Bring Suit 49. Assignability of Bailee's Interest. 50. Bailor's Warranty of Title or Interest. 51. Liability for Injuries to Third Persons. 52. Expenses about the Bailed Chattels. 53. Degree of Care to be Exercised by the Bailee. 54. Liability of Bailee for Acts of his Agents or Servants. 55. Compensation of the Bailor. 56. Termination of the Bailment. 57. Redelivery of the Bailed Goods. CLASSIFICATION OF MUTUAL BENEFIT BAILMENTS 1 43. Bailments for the mutual benefit of the bailor and bailee may be thus classified: 1. Locatio, or hiring. A. Locatio rei, the hired use of a thing. B. Locatio operis, hired services about a thing. (1) Ordinary bailments for hire. (a) Locatio operis faciendi, hired services about a thing. (b) Locatio custodiae, the hired custody of a thing. (c) Locatio operis mercium vehendarum, or the hired carrying of a thing. (2) Extraordinary bailments for hire. (a) Innkeepers. (b) Common carriers of goods. (c) Post office department. 2. Pignus, or pledge. The general principles applicable to gratuitous bailments are in the main equally applicable to mutual benefit bailments. The fundamental distinction between these classes of bailments is that in the latter both the bailor and the bailee contemplate receiving » This classification is practically that of Goddard, Bailm. & Carr. § 64. § 43) CLASSIFICATION OP MUTUAL BENEFIT BAILMENTS 97 some benefit or advantage from the bailment. On this fact depend many important differences in the rights and liabilities of the par- ties. The question of what constitutes a benefit sufficient to make the bailment one for mutual benefit (rather than a gratuitous one) has already been discussed.' Bailments of this class are the usual bailments of commerce and may be created for an almost infinite variety of purposes. Since the great majority of bailments fall within this class, the practical importance of the questions involved justifies a very much more elaborate and detailed discussion than has been given to the subject of gratuitous bailments. For the purpose of indicating subdivisions in the analysis of mutual benefit bailments, the names of the corresponding classes in the Roman law have been used ; for these make up the natural and logical divisions of the subject, and this terminology has the advantage of familiarity. The first great division of mutual benefit bailments is into two large classes — (1) Locatio, or hiring; and (2) pignus, or pledge. The pledge differs from all other bailments in that the bailment exists, not for itself alone, but merely as incidental to, and security for, the performance of the principal obligation. Pledges are dis- cussed at some length in chapter 7. The locatio or hiring bailments are first divided into (A) lo- catio rei, or the hired use of a thing; and (B) locatio operis, or hired services about a thing. Locatio operis bailments are in turn divided into (1) ordinary bailments for hire; and (2) extraor- dinary bailments for hire, including innkeepers, common carriers of goods, and the post office department. In these extraordinary bailments, considerations of public policy involve such unique distinctions that they are keenly differentiated from other bail- ments. They are accordingly discussed separately, and not in con- nection with the other bailments of the various classes. 8 The classes of ordinary bailments of the hiring of services about a thing can be all treated together, as the distinctions are largely for convenience alone. As we have already seen, custody ordi- narily involves services, and services on the bailed chattel require its custody in order that they may be performed. The carrying of a thing from one place to another is only a specific kind of service about a chattel, involving (when performed by a private and not a common carrier) no unique principles of the law of bailments. 2 Ante, |§ 23, 33. It is immaterial whether the benefit is in fact ultimately received or not. It is essential, however, that the bailment be constituted with the intention of securing such benefit This benefit, while commonly money on one part at least, may be anything else of value. » Post, chapters 8-15. Dob.Bailm. — 7 98 BAILMENTS FOR MUTUAL BENEFIT HIRED USB OF THINGS (Ch. 5 After a brief discussion of locatio, or hiring, in general, this chapter will be devoted to the first great class of locatio bail- ments, viz., locatio rei, the hired use of things; while chapter 6 is concerned with locatio operis, or hired services about a thing, excluding the extraordinary bailments, which will be subsequently treated. LOCATIO OR HIRING— IN GENERAL 44. Locatio, or hiring, is a bailment in which compensation is to be given either by the bailee to the bailor for the use of a thing (locatio rei) or by the bailor to the bailee for la- bor and services about a thing (locatio operis). Bailments of hiring were called in the Roman law "locatio," or "locatio-conductio," both expressions being used to signify the same relation. It is a bailment whereby either the use of a thing or the services and labor of a person about a thing are given for a reward.* At the common law it may be denned as a bailment of a personal chattel, where a compensation is to be given for the use of the thing, or for labor or services about it. B It is clear that these definitions or descriptions of locatio prac- tically amount simply to throwing together the two definitions of locatio rei and locatio operis. The terms used in the Roman and French law to designate the parties to locatio bailments are confusing rather than illumi- * Ayliffe, Pand. bk. 4, tit. 7, p. 460; Wood, Inst. bk. 3, pp. 235, 236, c. 5; 1 Domat, bk. 1, tit. 4, § 1, art 1. b Pothier (Contrat de Louage, note 1) defines It to be a contract by which one of the contracting parties engages to allow the other to enjoy or use the thing hired, during the stipulated period, for a compensation, which the other party engages to pay. A definition substantially the same will be found in other writers. Lord Holt in COGGS v. BERNARD, 2 Ld. Raym. 909, 913, Dobie Cas. Bailments and Carriers, 1, has defined it to be "when goods are left with the bailee to be used by him for hire." The objection to this, as well as to the definition of Pothier, is that it is incomplete, and covers only cases of the hire of a thing (locatio rei), and excludes all cases of the hire of labor and services, and of the carriage of goods. Mr. Bell defines it, with great exactness, thus: "Location is, in general, defined to be a contract, by which the temporary use of a subject, or the work or service of a person, is given for an ascertained hire." 1 Bell, Comm. (4th Ed.) §§ 198, 385; Id. (5th Ed.) pp. 255, 451. See, also, 2 Kent, Comm. Ject 40 (4th Ed.) p. 585 ; 1 Bell, Comm. (5th Ed.) pp. 255, 451; 1 Bell, Comm. (4th Ed.) §§ 198, 385. See, also, Monthly Law Mag. (London) for April, 1839, pp. 217-219 ; Story, Bailm. § 368 ; 1 Domat, bk. 3, tit. 4, § 1, art. 1. See, also, Code Civil of France, arts. 1Y09, 1710; Sohm Inst. (Ledlie's Transl., 2d Ed.) 419; 2 Street, Foundations of Legal Liability, p. 284. § 45) LOCATIO OK HIKING — NATURE OF THE RELATION 99 nating, and as they are on that account seldom used by English or American writers, they can be omitted here.* Some explanation of the terms "letter" and "hirer" in this connection, however, is essential. The hirer is the one who receives the immediate bene- fit from the bailment itself, and accordingly pays a compensation therefor; while the letter, in the eyes of the law, suffers a loss or detriment from the actual fulfillment of the bailment purpose, ■he therefore receives the compensation as his reward for such detriment. In a locatio rei bailment, the bailee is the hirer ; the bailor, the letter. Thus, where one procures a horse from a livery stable to ride, he (bailee) clearly receives the immediate benefit from the bailment (i. e., the delivery of the horse), for which he pays the livery stable keeper (bailor). On the contrary, in a locatio operis bailment, the bailee is the letter; the bailor, the hirer. For example, one who boards his horse at a stable (bailor) re- ceives the benefit from the bailment (here the caring for the horse), and therefore pays the compensation to the stable keeper (bailee). It will thus be seen that the terms "hirer" and "letter" do not invariably refer to either the bailor and the bailee. In locatio rei, the bailee hires the use of the thing; in locatio operis, the bailor hires services about the thing. SAME— NATURE OF THE RELATION 45. Locatio bailments, or bailments of hiring, may be created: (a) By contract. (b) By operation of law. Locatio bailments are divided into two classes. (a) Locatio rei, or the hiring of the use of a thing. (b) Locatio operis, or the hiring of services about a thing. • We are accustomed, In the common law, to use words corresponding to those of the Roman law, almost in the same promiscuous manner. Thus, letting ("locatio") and hiring ("conduetio") are precise equivalents, used for the purpose of distinguishing the relative situation of different parties to the same contract. The letter, called in the civil law "locator," and in the French law "locateur," "loueur," or "bailleur," is he who, being the owner of the thing, lets it out to another for hire or compensation; and the hirer, called in the civil law "conductor," and in the French law "conducteur," "preneur," "locataire," is he who pays the compensation, having the benefit of the use of the thing. See, also, Story, Bailm. § 369; Wood, Inst. bk. 3, p. 236, c. 5; Poth. Contrat de Louage, note 1; 1 Domat, bk. 1, tit. 4, § 1, art. 2; Heinecc. Pand. lib. 19, tit. 2, § 318 ; Jones, Bailm. 90 ; Wood, Inst. Civ. Law, 236. 100 BAILMENTS FOB MUTUAL BENEFIT — HIRED USB OF THINGS (Ch. 5 The locatio, or bailment of hiring, is, of course, governed by the principles common to all bailments. A mutual benefit bail- ment is distinguished from the gratuitous bailments by the fact that the bailment is undertaken or created for a recompense or consideration. What constitutes such a consideration has al- ready been sufficiently discussed T Establishment of the Relation by Contract It follows naturally from the requirement of a contemplated. consideration, to be paid by one party and received by the other, that the very great majority of bailments for hire are founded on special contracts, and these are the usual bailments of commerce. In such cases, as elsewhere, the general rules of contract apply.* i Ante, §§ 23, 33. Apart from the fact that they are undertaken for a consid- eration, bailments for hire differ very little from gratuitous bailments either in their manner of creation, or in their purposes. Thus, in the case of a simple deposit, if a price is to be paid for the keeping, the character of the bailment is changed. It is no longer a depositum, but becomes a locatio custodise, or a hiring of custody. So, also, if a loan for use is gratuitous, it is a commodatum, but, if it be for a price, it is a locatio rei, or the hiring of a thing ; and what would be a mandate, if it were not for the consideration, is a hiring of work and labor, or the hiring of carriage. In every bailment of letting for hire, a contemplated price or compensa- tion for the hire is essential, though the amount may not be stipulated. Herryford v. Davis, Use of Jackson & S. Co., 102 U. S. 235, 26 L. Ed. 160. In the absence of an agreement to the contrary, the law implies an agree- ment to pay a reasonable sum for the use of a thing. Cullen v. Lord, 39 Iowa, 302; Gray v. Missouri River Packet Co., 64 Mo. 47; Schouler, Bailm. (2d Ed.) § 98. Where a bailee takes a horse to care for, and is to have the use of the horse in consideration of his keep, the bailment is one for hire. Chamberlin v. Cobb, 32 Iowa, 161. See, also, Francis v. Shrader, 67 111. 272; White v. Humphery, 11 Q. B. Div. 43 ; Gaff v. O'Neil, 2 Cin. R. (Ohio) 246. Where one entering a clothing house for the purchase of a suit deposits his watch, at the direction of the salesman, in a drawer, preparatory to trying on some clothes, the jury are warranted in finding that such deposit is a necessary in- cident of the business, in which case the clothier becomes a bailee for hire, bound to exercise ordinary diligence. WOODRUFF v. PAINTER, 150 Pa. 91, 24 Atl. 621, 16 L. R. A. 451, 30 Am. St. Rep. 786, Dobie Cas. Bailments and Carriers, 40. A merchant who sells ready-made cloaks at retail, and provides mirrors for the use of customers while trying them on, and clerks to aid in the process, thereby impliedly invites his customers to take off their wraps and lay them down in the store, and is bound to exercise* some care over such wraps. Where such merchant provides no place for keeping such wraps, and does not notify customers to look out for their wraps themselves, nor give any direction to his clerks on the subject, he is liable for the loss of a wrap laid on the counter by a customer while trying on a cloak, since his acts show that he exercised no care whatever. Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St. Rep. 519. Story, Bailm. § 375; Schouler, Bailm. (2d Ed.) § 90. s Not only fraud or duress, but even mistake in regard to the subject-matter § 45) LOOATIO OB HIRING — NATTJBE OP THE BELATION 101 There is, however, one instance of illegal contract, "of such frequent occurrence, that it calls for brief consideration. This is the hiring of horses for use on Sunday, contrary to statute. The rule is that neither party can set up the illegal contract, either as the basis of an action or as a defense. But if a party can make out a case without relying on such contract, then he can recover. Thus, where the bailor sues to recover the stipulated price for the use of the horse, he cannot recover ; for, to make out his case, he must set up the illegal contract of hiring. But if the bailor sues for a conversion when the bailee's use of the horse is outside of the contract, he can recover. Here the bailor sues for the bailee's wrongful dealing with an article not his own in a way inconsistent with the ownership of the bailor. The bailor's right of action is not based on the contract, and, since the illegal contract furnishes no excuse or defense, the bailor could recover; and the same is true, it is believed, when the bailor sues the bailee for mere negli- gence. 9 of the bailment, Its purpose, or the recompense, may avoid the contract. Thus," if I agree to hire a certain horse, and the bailor understands me to mean a different horse, there is no contract, for there is no mutual assent. The • contract must not Involve the execution of an unlawful purpose, or be against good morals and public policy. Thus, a contract for a bailment of furniture to be used for purposes of prostitution is void. So, also, are contracts to supply tools to commit burglary with, or goods to aid a public enemy, or for the purpose of smuggling. See Clark, Contr. 289, 346; Story, Bailm. §§ 372, 378, 379; Schouler, Bailm. (2d Ed.) §§ 91, 92. » As to conversion, see Schouler, Bailm. (2d Ed.) § 140; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576. "The illegal letting may or may not appear. If it does, it simply explains the defendant's possession, and proves that it was by the owner's permission, at least for a certain purpose. It may give the defendant an opportunity to injure the horse, but it does not cause the injury; nor does it contribute to it, in such a sense as to make the plaintiff a party to the wrongful act. If it does not appear, before the defendant can avail himself of it as a defense, it becomes necessary for him to prove the illegal contract to which he was a party, and his own illegal conduct in traveling upon the Sabbath. But he can no more avail himself of that as a defense than the plaintiff can as a cause of action. Either party whose success depends upon proving his own violation of law must fail." Frost v. Plumb, 40 Conn. Ill, 113, 16 Am. Rep. 18. See, also, DOOLITTLE v. SHAW, 92 Iowa, 348, 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 542, Dobie Cas. Bailments and Carriers, 67; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310. For other cases, see 45 Cent. Dig. "Sunday," § 52. It seems that, when the bailor sues the bailee for negligence (even when there has been no conversion), the fact of the bailment being a Sunday one should be no defense, as the negligence and not the Sunday bailment is the proximate cause of the injury. Frost v. Plumb, 40 Conn. Ill, 113, 16 Am. 102 BAILMENTS FOR MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 We have already seen, in the case of gratuitous bailments, that, before the bailment is actually entered upon by the bailee, no rights accrue for breaches of the bailment contract, since it is without consideration. 10 In the case of locatio (and all other mutual benefit bailments), since the contract is supported by a consideration, mutual rights are acquired as soon as the contract is made. For nonfeasance, or a mere breach of this contract, then, either party is liable. 11 Establishment of the Relation by Operation of Law Though the very great majority of bailments for hire rest upon express contract between the parties, there are a few classes of quasi bailments for hire which may arise independently of the bailor's consent. 12 Such are cases of possession of property by Rep. 18; Newbury v. Luke, 68 N. J. Law, 189, 52 Atl. 625; Hinkel & Edelen v. Pruitt, 151 Ky. 34, 151 S. W. 43. But there are cases to the contrary. Way v. Foster, 1 Allen (Mass.) 408 ; Hall v. Corcoran, 107 Mass. 258, 9 Am. Rep. 30. io Ante, §§ 26, 38. « Story, Bailm. §§ 384, 436; 2 Kent, Comm. 570; Schouler, Bailm. (2d Ed.) § 100. See THORNE v. DEAS, 4 Johns. (N. T.) 84, Dobie Cas. Bailments and Carriers, 47; Elsee v. Gatward, 5 Term R. 143; Balfe v. West, 13 C. B. 466. '•In cases of nondelivery of the thing by the letter, whether it arises from his mere refusal, or from his subsequent sale or transfer thereof to another per- son, or from his having stipulated for the delivery of a thing of which he is not the owner, and over which he has not any control, a right of action ac- crues to the hirer. But by the French law, if the nondelivery is prevented by inevitable casualty or superior force, as if it perishes, no such action lies ; for in that law the rule is, 'Impossibilium nulla obligatio est' But in all these cases the hirer may, if he chooses, treat the contract as rescinded ; and, if he has paid any consideration therefor, he may recover it back. On the other hand, if the letter offers to deliver the thing in an injured or broken or altered state from what it was at the time of the hiring, the hirer is not bound to receive it, but he is entitled to insist upon rescinding the contract And in such a case it will make no difference whether the injury or deteriora- tion was by inevitable accident, or by any other cause." Story, Bailm. § 384. Such a contract, having the elements of contractual validity, can be sued on by one party to the contract, upon a breach of the contract by the other party. The legal incidents of such a suit are governed by the general rules of law applicable to contracts. 12 "Nor should it be thought that bailments for mutual benefit necessitate a contract and mutual terms. * * * There may exist what we call a 'quasi bailment,' namely, one whose conditions are satisfied with the volun- tary acceptance of possession by one who expects a reward for his service." Schouler, Bailm. (2d Ed.) § 94. The acceptance may be either actual or con- structive, but unless there is something to show bailment, knowledge, and intent, no bailment can be inferred. Schouler, Bailm. (2d Ed.) § 100; Spangler v. Eicholtz, 25 111. 297; Cox v. Reynolds, 7 Ind. 257; Rodgers v. Stophel, 32 Pa. Ill, 72 Am. Dec. 775; Feltman v. Gulf Brewery, 42 How. Prac. (N. Y.) 488. § 46) LOCATION EEI, OB THE HIKED USE OF A THING 103 captors," by revenue officers, 14 by prize agents, 10 by officers of courts, 16 and by marine salvors. 17 Thus, in the last case, if a dis- abled ship is abandoned in a storm by the crew, and is towed into port by another vessel, by the rules of admiralty, the owner of the towing vessel is treated as a quasi bailee and is entitled to compensation for the services rendered. Locatio Rei and Locatio Operis Bailments As we have seen, in locatio rei the bailee is benefited by the bailment and pays a compensation therefor; "while in locatio operis, the benefit of the bailment accrues to, and the compen- sation is paid by, the bailor. As a result of this, any attempt to treat together the rights and duties of the parties in both classes is apt to be confusing. The two will therefore be considered sep- arately. The rest of the present chapter will be devoted to locatio rei, while chapter 6 will discuss locatio operis. LOCATIO REI, OR THE HIRED USE OF A THING 46. Where things are hired for use, the rights and duties of the parties, as in other bailments, are controlled primarily by the bailment contract; but, when not thus controlled, they are implied by law. As in all other classes of bailments, the parties may determine for themselves the nature and extent of their mutual rights and is Story, Bailm. § 614; The Betsey, 1 W. Rob. Adm. 93, 96. Captors are bound to exercise ordinary care. The Maria, 4 W. Hob. Adm. 348, 350; The Anne, 3 Wheat. 435, 4 L. Ed. 428; The George, 1 Mason, 24, Fed. Cas. No. 5,328; The Lively, 1 Gall. 315, Fed. Cas. No. 8,403. i* Burke v. Trevitt, 1 Mason, 96, 101, Fed. Cas. No. 2,163. ie Story, Bailm. § 619 ; The Rendsberg, 6 C. Rob. Adm. (Eng.) 142. ia Story, Bailm. §§ 124-135, 620. See, generally, Burke v. Trevitt, 1 Mason, 96, 101, Fed. Cas. No. 2,163 ; Browning v. Hanf ord, 5 Hill (N. Y.) 588, 592, 40 Am. Dec. 369 ; Trotter v. White, 26 Miss. 88, 93. Ordinary diligence is the measure of liability. Cross v. Brown, 41 N. H. 283; Blake v. Kimball, 106 Mass. 115 ; Aurentz v. Porter, 56 Pa. 115 ; Burke v. Trevitt, 1 Mason, 96, Fed. Cas. No. 2,163 ; The Rendsberg, 6 C. Rob. Adm. (Eng.) 142. The same rules ap- ply to receivers and other depositaries appointed by courts. Story, Bailm. § 621 ; Knight v. Plimouth, 3 Atk. (Eng.) 480 ; Beauchamp v. Silverlock, 2 Rep. Ch. (Eng.) 5; Horsely v. Chaloner, 2 Ves. Sr. (Eng.) 83; Rowth v. Howell, 3 Ves. (Eng.) 566; Wren v. Kirton, 11 Ves. (Eng.) 377. As to sheriffs and constables (the case most frequently occurring), see Snell v. State, to Use of Greenfield, 2 Swan (Tenn.) 344; Vance v. Vanarsdale, 1 Bush (Ky.) 504; Cresswell v. Burt, 61 Iowa, 590, 16 N. W. 730 ; Bridges v. Perry, 14 Vt. 262 ; Fletcher v. Circuit Judge of Kalkaska, 81 Mich. 186, 45 N. W. 641. 17 Salvors are entitled to compensation for their services. This compensa- tion is called "salvage," and renders the bailment one for hire. Story, Bailm. lOy BAILMENTS FOR MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 liabilities by any special contract, not against public policy or in violation of law. The discussion that follows treats of these rights and duties when they are not controlled by the special contract of the parties to the bailment. In locatio rei, the bailee is the hirer of the use of the thing; the bailor is the letter. The use of the terms "bailor" and "bailee," however, seems preferable. SAME— USE OF BAILED CHATTELS BY THE BAILEE 47. The bailee is entitled to the beneficial use of the thing hired; but such use is limited to the time, purpose, and manner for which the thing was hired. The bailee acquires the right, and the exclusive right, to the use of the thing hired during the time of the bailment. 18 This right is good against the world, and not even the owner can dis- turb the bailee in the lawful enjoyment of it. 19 For this is the benefit accruing to the bailee, for which he pays the stipulated compensation. Nor can a creditor of the bailor, during the term of hire, attach the goods and take them from the custody of the bailee ; 20 since the bailor's creditor can in such case claim no higher right than that of the bailor. If, during such time, the thing is redelivered to the owner for a temporary purpose only, he is bound to deliver it back afterwards to the bailee. 21 As long as the bailee keeps within the terms of the bailment, this right is clear and presents little difficulty. § 622; Abbott, Shipp. (5th Ed.) pt. 3, e. 10, §§ 1, 2; In re Cargo ex Schiller, 2 Prob. Div. (Eng.) 145, See, also, Seven Coal Barges, 2 Biss. 297, Fed. Cas. No. 12,677; The Fannie Brown (D. C.) 30 Fed. 215; The Mulhouse, Fed. Cas. No. 9,910; Nickerson v. John Perkins, 3 Ware, 87, Fed. Cas. No. 10,252. is Harris v. Maury, 30 Ala. 679; Schoyer v. Leif, 11 Colo. App. 49, 52 Pac. 416; Harrington v. Snyder, 3 Barb. (N. T.) 380; Zell v. Dunkle, 156 Pa. 353, 27 Atl. 38; Ledbetter v. Thomas, 130 Ala. 299, 30 South. 342. i» Story, Bailm. § 395; HICKOK v. BUCK, 22 Vt 149, Dobie Cas. Bail- ments and Carriers, 63 ; Camp v. Dill, 27 Ala. 553 ; Bower v. Coker, 2 Rich. (S. C.) 13. so HARTFORD v. JACKSON, 11 N H. 145, Dobie Cas. Bailments and Car- riers, 64. Lessee has a right to property leased during lease, paramount to any right of lessor or his creditors ; and, in enjoyment of this right, they can- not disturb him with impunity. They cannot take the property out of his possession. Smith v. Niles, 20 Vt. 315, 49 Am. Dec. 782. See, also, Truslow v. Putnam, 4 Abb. Dec. (N. T.) 425 ; Anderson v. Heile, 64 S. W. 849, 23 Ky. Law Rep. 1115. si Roberts v. Wyatt, 2 Taunt. (Eng.) 26a § 47) USE OF BAILED CHATTELS BY THE BAILED 105 Conversion and Misuser The bailee must respect the limitations on his use imposed by the contract of hiring; his use of the thing is limited strictly to the time, purpose, and manner therein set out. He therefore has no right to use the thing during a longer time, or for a different purpose, or in another manner from that specified by the bailment contract. 22 Thus, if a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or as a beast of burden. 23 So, if a carriage and horses are hired for a journey to Boston, the hirer has no right to use them for making a journey to New 22 Story, Ball m. § 413. Compare " Gratuitous Loans," ante, p. 89. And See Pillion V l .llll l , .1U 'Inwn HIM ---K onTiorly m A«rtifl J iaJA r ^_Jh»afa-^»^K3r> : Stewart v. T^vla, 31 Arir._ su^-as. a™., nop rrefi; M;"-"" v . Cuthbertson, 64 N. C 5J28. If hiring be general, any prudent; use of the thing is permissible. Home v. Meakin, 115 Mass. 326; McLauchlin- v. Lomas, 3 Strob. (S. C.) 85; Harrington v. Snyder, 3 Barb. (N. Y.) 380. See, also, Ledbetter v. Thomas, Tat) Aiq |(|| «Mfr.an South. 342; Mayer v. Springer, "192 111.' 270, 61 N. E. 348, HaTTv. Cor™ ran, 107 Mass. 251, 9 Am. Rep. 30 ; Markoe v. Tiffany & Co., 163 N. Y. 565, 57 N. B. 1116; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W 790; McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N. W. 873, 3 Ann. Cas. 468; Bac. Abr. "Bailment," C; Id. "Trover," C, D, E; Wilbraham v. Snow/, 2 Saund. (Bng.) 47a, 47f, 47g, note by Williams & Pat- teson ; Isaack v. OlarB, 2 Bulst. (Eng.) 306, 309 ; Wilkinson v. King, 2 Camp. (Eng.) 335; Loeachmaiii v.. Machi n. 2 Starkie (Eng.) 311; Youl v. Harbottle, Peake (Eng.) 4U; Koteh v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414; WHEELOG Kv. WHT^TflLWRTq iHT. 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66TCo"oper v.\Willomatt, 1 Man., G. & S. (Eng.) 672; Harrington v. Snyder, 3 Barb. (N. Y.) &80 ; Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118 ; Cobb v. Wallace, 5 Cold.UTenn.) 539, 98 Am. Dec. 435; Wentworth v. McDuffie, 48 N. H. 402 ; De TollenWe v. Fuller, 1 Mill, Const (S. C.) 117, 121, 12 Am. Dec. 616 ; Jones, Bailm. 68, 69, 121 ; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 917, Dobie Cas. Bailments and Carriers, 1; Buchanan v. Smith, 10 Hun (N. Y.) 474; Fisher v. KVle, 27 Mich. 454; Lane v. Cameron, 38 Wis. 603; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. Where a horse meets with an in- jury through his own fault, but while the bailee is misusing it, the bailee is liable. Lucas v. Trumbull, 15 Gray (Mass.) 306. An infant is not liable on a contract of hire, but, if he uses the property in any other than the stipu- lated way, he is liable for conversion. Jennings v. Rundall, 8 Term R. (Eng.) 335; Homer v. Thwing, 3 Pick. (Mass.) 492.' Cf. Whelden v. Chappel, 8 R. I. 230. For collection of cases, see 6 Cent. Dig. "Bailments," §§ 64-74 ; 3 Dec. Dig. "Bailments," § 16; 3 Am. & Eng. Enc. of Law, pp. 752-759; 3 Ann. Cas. 470; 12 Ann. Cas. 692 ; 38 Cyc. 1997. See, also, Story, Bailm. §§ 413-113d ; Schouler, Bailm. §§ 139-142 ;»Goddard, Bailm. & Carr. §§ 115-119; Van Zile, Bailm. & Carr. 124-126; 1 Street, Foundations of Legal Liability, p. 23J et seq. ; Id. p. 257 ; 2 Street, Foundations of Legal Liability, pp. 286-288 ; note 26 L. R. A. 366. . 2» Jones, Bailm. 68, 88. See Wilbraham v. Snow, 2 Saund. (Eng.) 47a, 47g, and note; Lockwood v. Bull, 1 Cow. (N. Y.) 322, 13 Am. Dec. 539; McNeill v. Brooks, 1 Yerg. (Tenn.) 73. 106 BAILMENTS FOR MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 York. 24 Again, if horses are hired for a week, the hirer has no right to use them for a month. 25 Where the bailee transcends the bailment contract, along any of the lines indicated, there can be no question that he has com- mitted an actionable wrong, and that he can be held liable for any damages proximately connected with his breach. But whether in such cases there is a conversion, rendering the bailee abso- lutely responsible, is a question on which there is much confusion and conflict. 26 Where the bailee undertakes to act as the unqualified owner of the thing hired, as where he attempts to sell it to a third per- son, this is a clear case of conversion. 27 When the bailee keeps within the bailment contract, but merely fails to exercise the or- dinary care in the use of the thing imposed on him by the nature of the bailment, it is just as clear that this is "mere negligence and is in no sense a conversion. 28 Between these two, however, lie many cases as to which it is difficult to speak authoritatively. 2* Jones, Bailm. 68. And see COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 915, Dobie Cas. Bailments and Carriers, 1; Rotch v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414 ; Homer v. Thwing, 3 Pick. (Mass.) 492 ; WHEE- LOOK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Car- riers, 66. Where a person who had hired a horse and buggy to drive to a specified place loaned them to defendant to drive to a different place, and while driving there he collided with a trolley pole and street car, destroying the horse and buggy, defendant, if he knew the purpose for which they had been hired, was liable to the owner, even if the collision was accidental and without negligence on his part. Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369, 15 L. R. A. (N. S.) 428, 125 Am. St. Rep. 123, 12 Ann. Cas. 691. as Jones, Bailm. 68; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 915, Dobie Cas. Bailments and Carriers, 1. And see WHEELOCK v. WHEEL- WRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576. 2« See cases and authorities cited in note 22. 27 Schwartz v. Clark, 136 111. App. 150; Short v. Lapeyreuse, 24 La. Ann. 45; Geneva Wagon Co. v. Smith, 188 Mass. 202, 74 N. E. 299; Howard v. Seattle Nat. Bank, 10 Wash. 280, 38 Pac. 1040, 39 Pac. 100 ; Bryant v. Kenyon, 123 Mich. 151, 81 N. W. 1093; Sargent v. Gile, 8 N. H. 325; Lovejoy v. Jones, 30 N. H. 164; Swift v. Moseley, 10 Vt 208, 33 Am. Dec. 197; Sanborn v. Col- man, 6 N. H. 14, 23 Am. Dec. 703; Johnson v. Willey, 46 N. H. 75; Rodgers v. Grothe, 58 Pa. 414; Cooper v. Willomatt, 1 C. B. 672; Marner v. Bankes (C. P.) 16 Wkly. Rep. 62. But a bailee may have an assignable interest, which interest he may lawfully transfer. Post, p. 114. as Thus, in an action for conversion of a horse, it appeared that defendant had hired the horse for a journey, and had carried, in addition to his own weight, $2,000 in specie, weighing 160 pounds. The court said: "If, however, an excessive weight be put on the horse, it will not amount to a conversion, but will be an abuse of the animal, for which, if injured by it, the owner may recover damages in an action on the case. By the contract of hiring, the hirer Is bound to use the horse in a moderate and prudent manner. If the § 47) USB OF BAILED CHATTELS BY THE BAILEE 107 Now conversion implies the assertion of a right of dominion over personalty inconsistent with the ownership of another. 28 It involves an interference with that dominion which is incident to the ownership of goods. It is something entirely apart from, and disassociated with, injury to chattels. As soon as a conver- sion takes place, the owner is thereby immediately vested with the right to sue the wrongdoer for the entire value of the goods converted. 80 It would thus seem clear that not every wrongful hiring be to ride, he must not ride immoderately; if to work, he must not work the animal unreasonably — or, in either case, he will be liable, in action on the case, for the damages resulting from his misconduct, but not for a conversion, because the immoderate use of the animal during the time and in the mode stipulated by the contract does not amount to the assertion of owner- ship and of a right distinct and different from that acquired by the contract. It may have resulted from ignorance or carelessness, without any design what- ever to exceed the authority given by the owner." McNiell v. Brooks, 1 Terg. (Tenn.) 73. Conversion will not lie against a bailee, because of his omission to place the horse in a barn at night, whereby it escaped or was stolen; there being no exercise of dominion by him, but merely a negligent omission to comply with his contract of bailment. Kosenberg v. Diele, 61 Misc. Rep. 610, 114 N. Y. Supp. 24. See, also, Forehead v. Jones, 84 Ga. 508, 10 S. E. 1090 ; Herman v. Kling, 81 Conn. 403, 71 Atl. 507; Cohen v. Koster, 133 App. Div. 570, 118 N. Y. Supp. 142 ; Ross v. Johnson, 5 Burr. (Eng.) 2825, 98 Eng. Reprint, 483. 29 "A conversion consists in an illegal control of the thing converted, in- consistent with the plaintiff's right of property." Perley, J., in Woodman v. Hubbard, 25 N. H. 67, 71, 57 Am. Dec. 310. See, also, Spooner v. Holmes, 102 Mass. 503, 3 Am. Rep. 491, collecting cases; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790. "The assertion of a title to, or an act of dominion over, personal property inconsistent with the right of the owner." Bigelow, Torts, 428 (quoted in Ramsby v. Beezley, 11 Or. 49, 51, 8 Pac. 288). "Any distinct act or dominion wrongfully exerted over one's property in de- ' nial of his right, or inconsistent with it." Cooley, Torts, 448 (quoted in Hoss- feldt v. Dill, 28 Minn. 469, 475, 10 N. W. 781). bo This right of an owner to recover as damages the value of the property converted is itself regarded as in the nature of property. It vests in him the instant the wrong is committed; the subsequent verdict and judgment serve merely to define its extent, and he cannot be deprived of it without his^ consent. 2 Bl. Comm. 438; Suth. Dam. § 7; Cooley, Const. Lim. 449; WesteiV velt v. Gregg, 12 N. Y. 211, 62 Am. Dec. 160; Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 5 Am. Dec. 291 ; Streubel v. Milwaukee & M. R. Co., 12 Wis. 67 ; Thornton v. Turner, 11 Minn. 336 (Gil. 237). The owner cannot be compelled to accept the property in mitigation of dam- ages. Green v. Speery, 16 Vt. 390, 42 Am. Dec. 519 ; Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500 ; Shotwell v. Wendover, 1 Johns. (N. Y.) 65. But where the conversion is merely technical, and the property is in the same condition, it has been held that the plaintiff may be compelled to accept its return in mitigation of damages. Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500; Churchill v. Welsh, 47 Wis. 39, 1 N. W. 398; Cook v. Loomis, 26 Conn. 483; Stevens v. Low, 2 Hill (N. Y.) 132. 108 . BAILMENTS FOR MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 detention or illegal control of the chattels of another amounts to a conversion. An act of the bailee, then, to constitute a conversion, must amount to an unauthorized assumption of dominion over the chattel, both hostile to, and exclusive of, the owner. The holding of the bailee must be entirely adverse to the bailor, since the former's possession was entirely lawful in its beginning. This brings us to the debated question whether a bailee, who has intentionally deviated, however slightly, from the bailment contract as to the time, purpose, or manner of the use of the hired chattel, is thereby ipso facto guilty of a conversion. This seems to be the holding of a majority of the courts, 81 though a respectable minority hold the opposite view. 82 The majority holding, how- *i COGGS v. BERNARD, 2 Ld. Raym. 909, 915, Dobie Cas. Bailments and Carriers, 1 (dictum of-Lord Holt). And see Disbrow v. Tenbroeck, 4 B. D. Smith (N. Y.) 397 ; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Rotch v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414 ; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310 ; Morton v. Gloster, 46 Me. 520; Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; Pish v. Ferris, 5 Duer (N. Y.) 49; McNeill v. Brooks, 1 Terg. (Tenn.) 73; Went- worth v. McDuffie, 48 N. H. 402; Lucas v. Trumbull, 15 Gray (Mass.) 306; Harrington v. Snyder, 3 Barb. (N. T.) 380 ; Buchanan v. Smith, 10 Hun (N. Y.) 474 ; Perham v. Coney, 117 Mass. 102 ; Lane v. Cameron, 38 Wis. 603 ; Malone v. Robinson, 77 Ga. 719; Murphy v. Kaufman, 20 La. Ann. 559; Fisher v. Kyle, 27 Mich. 454; Welch v. Mohr, 93 Cal. 371, 28 Pac. 1060; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340 ; Evertson v. Frier (Tex. Civ. App. 1898) 45 S. W. 201; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30. See, also, Raynor v. Sheffler, 79 N. J. Law, 340, 75 Atl. 748. 82 Thus in DOOLITTLE v. SHAW, 92 Iowa, 348, 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 562, Dobie Cas. Bailments and Carriers, 67, the court said; "To constitute a conversion in a case like that at bar, there must \ be some exercise of dominion over the thing hired, in repudiation of, or in- consistent with, the owner's rights. We hold that the mere act of deviating from the line of travel which the hiring covered, or going on beyond the point for which the horse was hired, are acts which, in and of themselves, do not necessarily imply an assertion of title or right of dominion over the property inconsistent with, or in defiance of, the bailor's interest therein." This rule seems to do substantial justice, though it is opposed to the weight of au- thority. In Harvey v. Epes, 12 Grat. (Va.) 153, the bailment contract was one for the hire of slaves for a year, to work in a certain county. They were taken by the hirer, without the owner's consent, to another county, but employed in the same kind of work, and while there died. The court, in an elaborate opinion, held that the removal of the slaves to a county other than that to which they were hired to work in was not of itself a conversion. It said: "Upon the whole, I am of the opinion that, in the case of a bailment for hire for a certain term, » * * the use of the property by the hirer, during the term, for a different purpose or in a different manner from that which was intended by the parties, will not amount to a conversion for which trover will lie, unless the destruction of the property be thereby occasioned, or at least unless the act be done with intent to convert the property, and thus to § 47) USB OP BAILED CHATTELS BY THE BAILEE 109 ever, is criticised by Judge Story ; " Mr. Schouler " conceives the "leaven of common sense" as fighting against it; while Mr. Street SB more strongly characterizes it as "a judicial blunder" and as "among eccentric doctrines which have become inbedded in the law of conversion." destroy or defeat the Interest of the bailor therein. • • * A bailment upon hire is not conditional In its nature, any more than any other contract, and, in the absence of an express provision to that effect, the bailee will not, in general, forfeit his estate by a violation of any of the terms of the bailment. * * * If he merely uses the property in a manner or for a purpose not au- thorized by the contract, and without destroying it, or without intending to injure or impair the reversionary interest of the bailor therein, such misuser does not determine the bailment, and therefore is not a conversion for which trover will lie." In Carney v. Rease, 60 W. Va. 676, 55 S. B. 729, Brannon, J., said: "The doctrine of Harvey v. Epes is considered as sound in a note by Freeman in 12 Am. Dec. 621. I consider the other rule extreme and hard. See DOOLIT- TLE v. SHAW, supra, citing the Harvey Case and holding its principles. President Lincoln, as counsel, successfully maintained this position in John- son v. Weedman, 4 Scam. (111.) 495." See cases cited in note mentioned 12 Am. Dec. 621. See, also, Farkas v. Powell, 86 Ga. 800, 13 S. E. 200, 12 L. E. A. 397, in which this language was used: "We can see no good reason to hold the hirer liable for an injury to the horse which occurred without his fault, after he had returned with it within the limits of his original contract, although he had been guilty of a technical conversion by riding it three miles beyond the point to which it was hired to go, the extra distance not causing or contributing to the. injury. We have been unable to find any case, tffe facts of which are like the facts in this. Nearly all the cases which hold the hirer liable when he has deviated from the terms of his contract are cases in which he was negligent in fact, or willfully and wantonly misconducted himself, or had overdriven the horse, or destroyed or ruined the property while beyond the limit or in the course of deviation from the purpose of hiring." As ex- amples the court cited Mayor, etc., of City of Columbus v. Howard, 6 Ga. 213; Gorman v. Campbell, 14 Ga. 137; Collins v. Hutchins, 21 Ga. 270; Lewis v. McAfee, 32 Ga. 465; Malone v. Robinson, 77 Ga. 719. See, also, Weller & Co. v. Camp, 169 Ala. 275, 52 South. 929, 28 L. R. A. (N. S.) 1106. as Story, Bailm. §§ 409, 413^413d. a* Schoulg?, Bailm. (2d Ed.) ijJ.40J.41. so 1 "Street, Foundations bTLegal Liability, p. 257. The same author (vol- ume 2, p. 287) continues: "As an application of the doctrine of conversion the position assumed is clearly untenable, for the general principle underlying conversion is that where possession has a lawful inception, no act will amount to a conversion unless it is of such character as conclusively to show an in- tention on the part of the bailee to hold adversely and to the exclusion of the rightful owner. Another circumstance which shows that the doctrine of con- version is not the true basis of the exceptional liability fastened upon the bailee in this situation is the fact that the rule in question cannot be invoked merely for the purpose of vesting the general property in the bailee, thus making him an unwilling purchaser of the animal. It is applied only in order to fix liability upon the bailee in case of actual lossT There is no case where a bailee, being willing and able to return the animal sound within a 110 BAILMENTS FOR MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 To hold that one hiring a horse to ride to Q., who rides a mile beyond Q., or who turns off from the road to Q. to see a friend, or who takes a different ride to R. (the same distance as Q.), commits a conversion with its attendant responsibilities, seems in- deed a harsh and unfair doctrine. There is little wonder, then, that courts have endeavored to escape from it. Thus, it has been sug- gested Sf> that a fair interpretation of the contract of hiring might enlarge the scOpe of discretionary use permitted to the bailee, who might then deviate from such contract, subject only to the pos- sibility of having to pay an increased compensation. Other courts have held (without invoking the principle just mentioned^ that a mere deviation from the agreed line of travel, or going beyond the point stipulated, are acts that do not of themselves imply an assertion of dominion over the chattel inconsistent with the own- er's interest, and hence do not necessarily constitute a conver- sion. 37 In most of the cases in which the general question under dis- cussion has arisen, the owner has sought to hold the bailee liable, not for the full value of the chattel but rather for damage to the thing hired on the theory that the latter's conversion has made him an insurer absolutely responsible for loss or damage, regard- less of the question of negligence. 38 Now there may be many reasons for thus imposing so strict a responsibility on the erring bailee, such as the quasi trust reposed in him by the bailor; but these considerations do not demand that the bailee should be ad- judged guilty of a technical conversion. When the action, then, is simply for damage to the chattel, it approximates more closely an action of trespass on the case for a misuser or abuse of the chattel, than an action of conversion for what is now called "the disseisin" of the chattel. When the bailor sues to hold the bailee responsible as insurer (by virtue of the conversion) for dam- ages suffered, after he has received back the damaged chattel, he recovers the amount of damage done to the chattel; when he sues for the value of the chattel, his recovery is reduced by the value of the damaged chattel when he received it back. 39 On proper time, has-been held liable in trover merely because lie traveled in the wrong direction or went beyond the destination stated." so Schouler, Bailm. (2d Ed.) § 141. hi Harvey v. Epes, 12 Grat. (Va.) 153, and DOOLITTLE v. SHAW, 92 Iowa, 348, 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 562, Dobie Cas Bailments and Carriers, 67, are the leading cases holding this view. See notes 32 and 35; — - «s See cases cited in note 32. See, also, note 35. so piummer v. Reeves, 83 Ark. 10, 102 S. W. 376 ; Gove v. Watson, 61 N. H. 136; Stillwell v. Farwell, 64 Vt. 286, 24 Atl. 243; Irish v. Oloyes, 8 Vt 30. § 4T) USE op 'bailed chattels bt the bailee 111 • whichever of these theories, then, the bailor proceeds, after receiv- ing back the injured chattel, practically the measure of damages is the same. Of course, in a technical conversion, a right to sue for the full value of the chattel accrues to the bailor (and can be taken from him only by his consent) ; so that he can refuse to receive back the damaged chattel and recover its full value. 40 It should be noted, in conclusion of this subject, that, as has been already indicated, when there has been no deviation from the contract of hiring, but mere negligence (or failure to exercise ordinary care) even the courts holding to the strict deviation theory concede that this is in no sense a conversion, in that there is no unwarranted assumption of dominion by the bailee. Thus, where a horse is hired for a ride to Q., and the bailee, while riding to Q. without deviation, rides the horse too fast, the bailee has not committed any conversion, but is merely negligent. 41 Again there are some acts, such as an unauthorized sale, 42 or the con- sumption (as of food) or tortious destruction of the hired chat- tel, 43 which amount to a conversion per se. On the other hand, a deviation, for example, is most equivocal, and the intent must 30 Am. Dec. 446; Ewlng v. Blount, 20 Ala. 694; 2 Sedg. Dam. § 494; Ren- f ro's Adm'x v. Hughes, 69 Ala. 581 ; Davenport v. Ledger, 80 111. 574 ; Carter v. Roland, 53 Tex. 540; Kinnear v. Robinson, 2 Han. (N. B.) 73; Jamison v. Hendricks, 2 Blackf. (Ind.) 94, 18 Am. Dec. 131 ; WHEELOCK v. WHEEL- WRIGHT, 5 Mass. 104, 106, Dobie Cas. Bailments and Carriers, 66; Sparks v. Purdy, 11 Mo. 219 ; Yale v. Saunders, 16 Vt. 243 ; Brady v. Whitney, 24 Mich. 154; Cook v. Loomis, 26 Conn. 483. Acceptance of the property may or may not show a waiver of the tort, according to circumstances. Certainly, an ac- ceptance without knowledge of the tort would not be a waiver. See Lucas v. Trumbull, 15 Gray (Mass.) 306; Austin v. Miller, 74 N. C. 274; Reynolds v. Shuler, 5 Cow. (N. Y.) 323. See 47 Cent Dig. "Trover and Conversion," § 277. *o See cases cited in note 30. 4i See note 28. But in Wentworth v. McDuffle, 48 N. H. 402, it was held that the bailor of a mare may maintain trover against the bailee, if the bailee willfully and intentionally drove the mare at such an immoderate and vio- lent rate of speed as seriously to endanger her life; he being aware of the danger at the time, and the death of the mare being caused thereby. "The act of the bailee in willfully and intentionally driving the horse at such an immoderate rate of speed as he knew would seriously endanger the life of the horse is at least as marked an assumption of ownership, and as substan- tial an invasion of the bailor's right of property, as the act of driving the horse at a moderate speed one mile beyond the place named in the contract of hiring." Id. *2 See cases cited in note 27. « Barrett v. Mobile;- 129 Ala. 179, 30 South. 36, 87 Am. St. Rep. 54 ; Atchi- son, T. & S. F. Ry. Co. v. Tanner, 19 Colo. 559, 36 Pac. 541; Turnbull t. Wid- ner, 103 Mich. 509, 61 N. W. 784. 112 BAILMENTS FOB MUTUAL BENEFIT HIRED USB OF THINGS (Ch. 5 be ascertained. For, if such deviation was unintentional on the part of the bailee, then clearly it could not be considered a con- SAME— INTEREST OF THE BAILEE— RIGHT TO BRING SUIT 48. The interest of the bailee in the thing hired amounts to a special property, which he by appropriate action, can pro- tect either against the bailor or third parties. When the injury is to his reversionary interest, or when the bail- ment is for an indefinite period, the bailor can sue third persons for injury to the thing hired. The bailee acquires the right, as against the world, to hold and use the hired chattel during the time stipulated in the contract of hiring. 46 His interest is therefore clearly a special property.** This the bailee can, of course, protect by appropriate action, when it is tortiously interfered with either by third persons or the bailor. 47 While in a suit against the bailor the bailee recovers merely for the injury to his own interest, in a suit against a third party for the destruction of the chattel it is generally held that ** Where one unintentionally deviates from the line of travel, as where the hirer of a horse loses his way, he is not liable for conversion. To constitute conversion there must be an intention to exercise dominion over the property. Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514. Merely stopping along the road is not sufficient to constitute conversion. Evans v. Mason, 64 N. H. 98, 5 Atl. 766. *o Ante, p. 104. *« Jones, Bailm. 85, 86; Bac. Abr. "Bailment," O; Lee v. Atkinson, TeL 172 ; 2 Bl. Comm. 395, 396 ; 2 Kent, Oomm. (4th Ed.) lect. 40, p. 586 ; Wil- braham v. Snow, 2 Saund. (Eng.) 47, and note by Williams; Eaton v. Lynde, 15 Mass. 242; LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71. 47 LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71; Croft v. Alison, 4 Barn. & Aid. 590; Bac. Abr. "Trespass," C; Id. "Trover," C; Ludden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45; Warren v. Leland, 9 Mass. 265; Hall v. Pickard, 3 Camp. 187; Nicolls v. Bastard, 2 Cromp., M. & R, 659, 660 ; Bliss v. Schaub, 48 Barb. (N. Y.) 339 ; Woodman v. Town of Nottingham, 49 N. H. 387, 6 Am. Rep. 526 ; Rindge v. Inhabitants of Coleraine, 11 GTay (Mass.) 158; Hare v. Fuller, 7 Ala. 717; McGill v. Monette, 37 Ala. 49 ; Hopper v. Miller, 76 N. O. 402 ; White v. Bascom, 28 Vt. 268. An auctioneer, who, as agent of the owner, sells and delivers goods on a condition which is not complied with, may maintain replevin therefor. Ty- ler v. Freeman, 3 Cush. (Mass.) 261. See, also, Moore v. Winter, 27 Mo. 380 ; City of Chicago v. Pennsylvania Co., 119 Fed. 497, 57 C. C. A. 609 ; Brewster T. Warner, 136 Mass. 57, 49 Am. Rep. 5. § 48) INTEREST OF THE BAILEE — EIGHT TO BEING SUIT 113 the bailee can recover the full value of the chattel, holding the surplus over his own interest for the bailor, and this " will be a bar to a subsequent action by the bailor. As to actions by the bailor against third persons for damage to the hired chattel, when the bailment is for a definite period the bailor cannot bring such action (such right existing only in the bailee) unless such damage affects the bailor's reversionary inter- est in the chattel.* 8 / Since the bailor is entitled to receive the chattel at the end of the bailment, however, if such injury is so serious or "permanent as to affect the chattel after its return to him, then the bailor may to that extent recover from such third persons. 80 When the bailment is for an indefinite time, so that the bailor may terminate it at his option, then, for any injury to the chattel, he, as well as the bailee, may bring suit against the third person committing such injury. 61 48 LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Doble Cas. Bailments and Carriers, 71; White v. Webb, 15 Conn. 302; American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479 ; Gillette v. Goodspeed, 69 Conn. 363, 37 Atl. 973; Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134; Walsh v. United States Tent & Awning Co., 153 111. App. 229. If a bailee has sued for and collected the entire damage done to personal property in his possession, the true owner of such property may by assump- sit, recover of such bailee the amount so collected. Walsh v. United States Tent & Awning Co., 153 111. App. 229. 4» Clarke v. Poozer, 2 McMul. (S. C.) 434; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197. But see Mears v. London & S. W. Ry. Co. (Bng.) 11 C. B. (N. S.) 850; Eldridge v. Adams, 54 Barb. (N. T.) 417. Unless bailee has absolute right to retain bailed property for definite time, trespass may be brought against wrongdoer to property, either in name of bailor or bailee, Strong v. Adams, 30 Vt. 221, 73 Am. Dec. 305 ; or trover, Drake v. Redington, 9 N. H. 243. See, also, Hurd v. West, 7 Cow. (N. T.) 752; Halyard v. Dech- elman, 29 Mo. 459, 77 Am. Dec. 585; Howard v. Farr, 18 N. H. 457; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197; Clarke v. Poozer, 2 McMul. (S. C.) 434. A bailee for a definite term may maintain trespass against his bailor for a wrongful retaking of the property. BURDICT v. MURRAY, 3 Vt 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84. See Angus v. Mc- Lachlan, 23 Ch. Div. 330. In trover by a bailee against his bailor, the meas- ure of damages is the value of the bailee's special interest in the goods; but in trover against a stranger the bailee recovers the entire value of the goods, and must hold the excess over his special interest in trust for the bailor. Benjamin v. Stremple, 13 111. 466. See, also, Soper v. Sumner, 5 Vt. 274; Lex- ington & O. R. Co. v. Kidd, 7 Dana (Ky.) 245; Gordon v. Harper, 7 T. R. (Eng.) 9. bo New Jersey Electric Ry. Co. v. New York, L. E. & W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849. See Schouler, Bailm. (2d Ed.) § 154 ; Howard v. Farr, 18 N. H. 457 ; W hite v. Griffin, 4fl rc q. 139. See, also, Lex- ington & O. R. Co. v. Kidd, 7 Dana (Ky.) 245 ; Mears v. London & S. W. Ry. Co. (Eng.) 11 C. B. (N. S.) 850. siBac. Abr. "Trespass," C; Id. "Trover," C; 2» Bl. Comm. ,396; Gordon v. Harper, 7 Term R. (Eng.) 9; Pain v. Whittaker, 1 Ryan & M. (Eng.) 99; Dob.Bailm. — 8 114 BAILMENTS FOE MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 SAME— ASSIGNABILITY OF THE BAILEE'S INTEREST 49. Where the bailment is for a definite time, and is not personal to the bailee, the bailee's interest in the hired chattel is assignable. When the bailment is personal to the bailee by virtue of confi- dence reposed in him personally, this by its very terms forbids any assignment of his interest by the bailee. 62 Again, when the bail- ment is not for a definite time, but is one at will, terminable at the pleasure of either party, the interest of the bailee is too elusive and indefinite to be capable of assignment. 68 An attempt, in either of these two cases, by the bailee to transfer his interest to a third person, would confer on the latter no property in the hired chattel. It would, on the other hand, give the bailor the right to put an end to the bailment and bring trover or trespass against such transferee, who took possession of the chattel. 54 But when the hiring is for a definite time, and when also there is no personal confidence reposed in the bailee, so that the bail- ment is not a personal one, then the bailee's interest is assignable and he can transfer it to a third person. 66 Such third person, as Wilbraham v. Snow, 2 Saund. (Eng.) 47a, notes by "Williams, etc.; Nicolls v. Bastard, 2 Cromp. M. & R. (Eng.) 659; Lacoste v. Pipkin, 13 Smedes & M. (Miss.) 589. See, also, Story, Bailm. § 394; Flewellin v. Rave, 1 Bulst. (Eng.) 68, 69; William v. Gywn, 2 Saund. (Eng.) 46, 47, and note. 52 Crocker v.. Gullifer, 44 Me. 491, 69 Am. Dec. 118 ; BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. See, also, Dunlap v. Gleason, 16 Mich. 158, 93 Am. Dec. 231. 6 8 BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. 0* BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. oo "A party may lease his farm for years, with the stock and tools upon it; the whole lease, it can hardly be doubted, may be assigned. A party may let furnished lodgings for a term; the lessee has an assignable interest in the furniture. * * * So a party who should lease his livery stable, with his stock of horses and carriages, for a term of years, could hardly com- plain if the lessee should assign his interest, unless some restriction was in- troduced in the lease." BAILEY v. COLBY, 34 N. H. 29, 36, 37, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. The hirer's transfer of his bene- ficial Interest alone, made with due reservation of the bailor's permanent ownership, should be upheld, unless the use was strictly personal or precari- ous. Vincent v. Cornell, 13 Pick. (Mass.) 294, 23 Am. Dec. 683; Nash v. Mosher, 19 Wend. (N. Y.) 431. See Fenn v. Bittleston, 7 Exch. 152; Day v. Bassett, 102 Mass. 445; Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346. A factor may pledge the goods to the extent of his own lien thereon, if he avowedly confines his pledge to that, and does not exceed his interest Man § 50) bailoe's warranty of title or interest 115 the bailee's assignee, would take in general the same interest that the bailee had. 66 The original bailee, however, continues liable to the original bailor for any damage to, or the loss of, the hired chat- tel, due to the negligence of the assignee, his servants or agents. The basis of this rule is sometimes said to be lack of privity be- tween the original bailor and the bailee's assignee; and some- times, with more reason, the rule is grounded on the general rules governing principal and agent and master and servant." SAME— BAILOR'S WARRANTY OF TITLE OR INTEREST 50. The bailor warrants that he has sufficient title or interest in the hired chattel to make the bailment. 08 In the very act of creating the bailment, the bailor impliedly warrants that his title or interest in the thing hired is sufficient to enable him to make the bailment in question. 69 This is anal- v. Shiffner, 2 Bast, 523-529; McCombie v. Davies, 7 East, 6; Urquhart v. Mclver, 4 Johns. (N. Y.) 103; Whitwell v. Wells, 24 Pick. (Mass.) 25, 31. And see ante, §§ 47, 48. Hirer of personal property cannot, by sale thereof, though to a purchaser in good faith, pass title. Russell v. Favier, 18 La. 585, 36 Am. Dec. 662. 6« BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. 07 Goddard, Bailm. & Carr. § 120. 08 it is frequently said that the bailor, in a hiring for use, warrants that the hired thing is suitable for the purpose of the hiring. Harrington v. Sny- der, 3 Barb. (N. Y.) 380 ; Leach v. French, 69 Me. 389, 392, 31 Am. Rep. 296. See, also, Home v. Meakin, 115 Mass. 326. It is believed, though, that this states the case too strongly against the bailor and that his liability is not an absolute warranty, but merely a duty to disclose to the bailee any defects which he knew or by the exercise of due care might have known. COPE- LAND v. DRAPER, 157 Mass. 558, 32 N. E. 944, 19L.E.A. 283, 34 Am. St. Rep. 314, Dobie Cas. Bailments and Carriers, 25. See, ante, p. 31. See, also, Van Zile, Bailm. & Carr. § 123; Goddard, Bailm. & Carr. § 113. In fa- vor of the warranty theory, see 1 Halsbury, Laws of England, p. 550; Sutton v. Temple, 12 M. & W. (Eng.) 52; Mowbray v. Merry weather, 2 Q. B. 640. If he gives him no notice of any vicious propensity of the horse, except to tell him, in answer to an inquiry, that the horse is all right, except a little "skeery," when he knows that the horse has a vicious habit, he will be liable for any injuries sustained by reason of such vicious habit. Kissam v. Jones, 56 Hun, 432, 10 N. Y. Supp. 94. See, also, Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699. Plaintiff cannot recover hire of slave, if he knew slave was un- sound, and fraudulently concealed it from defendant, providing the latter, within reasonable time after discovering fraud, offered to return slave and rescind contract. Reading v. Price, 3 J. J. Marsh. (Ky.) 61, 19 Am. Dec. 162. 6 Goddard, Bailm. & Carr. § 113; Van Zile, Bailm. & Carr. § 121; Sen ou- ter, Bailm. (2d Ed.) $ 151; Story, Bailm. §§ 383, 387. "A pledgor, by the act 116 BAILMENTS FOR MUTUAL BENEFIT HIRED USB OF THINGS (Ch. 5 ogous to the covenant of the lessor of lands for quiet enjoyment by the lessee, 90 the implied warranty of title by one purporting to make a sale of personalty, 81 and the implied warranty of author- ity of an agent who undertakes to make a contract with a third party binding on his principal. 88 In a hiring for use, the bailor stipulates that the bailee shall have the exclusive use of the chattel for the agreed time. Manifestly, then, in creating the very bailment, the bailor impliedly warrants that he has sufficient title or interest in the chattel to confer such use on the bailee for such time. If, therefore, the bailee's use is disturbed by a superior title in a third person, the bailor is liable for the amount of damage which the bailee thereby suffers. Such warranty applies only against the claims of third persons that rest on a real legal basis. When his possession is disturbed by the mere tortious acts of third persons, the bailee's remedy is against them alone. 8 * SAME— LIABILITY FOR INJURIES TO THIRD PERSONS 51. For injuries to third persons, due to the negligent use of the hired chattel, the bailee alone is responsible. The bailee has the exclusive use of the hired chattel; he alone exercises entire control over it. Naturally, then, when a third per- son is injured, owing to the negligent use of the chattel, he must proceed solely against the bailee; he has no remedy against the bailor. 84 The bailor, by creating the bailment, has severed from' of pledging, impliedly warrants that he is the general owner of the property pledged; and he is liable to the pledgee in damages, if the property, or any part of it, is taken from the latter under a superior title." Jones, Pledges, § 52. See Goldstein v. Hort, 30 Cal. 372 ; Mairs v. Taylor, 40 Pa. 446 ; Cass v. Higenbotam, 27 Hun (N. Y.) 406. «o Tayl. Landl. & Ten. § 308; 1 Schouler, Pers. Prop. (2d Ed.) { 29. «i Williston, Sales, § 216 ; American Sales Act, § 13. 82 Mechem, Agency, §§ 544, 545. «» Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279; Playter v. Cunningham, 21 Cal. 229 ; Surget v. Arighi, 11 Smedes & M. (Miss.) 87, 49 Am. Dec. 46. 64 McColligan v. Pennsylvania Ry. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; New Jersey Electric Ry. Co. v. New York, L. E. & W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849; Sproul v. Hemmingway, 14 Pick. (Mass.) 1, 25 Am. Dec. 350; Schular v. Hudson River R. Co., 38 Barb. (N. Y.) 653 ; Carter v. Berlin Mills Co., 58 N. H. 52, 42 Am. Rep. 572; Stevens v. Armstrong, 6 N. Y. 435; Rapson v. Cubitt, 9 Mees. & W. (Eng.) 710. And see Powles v. Hider, 6 El. & Bl. (Eng.) 207; Venables v. Smith, 2 Q. B. Div. (Eng.) 279. Compare King v. Spurr, 8 Q. B. Div. (Eng.) 104. The owner of a boat, who leases it to another to be used as a § 52) EXPENSES ABOUT THE BAILED CHATTELS 117 himself the use of the chattel within the limits of the contract of hiring; he also thereby relieves himself from responsibility to third persons resulting solely from such use. Nor does the bailee so represent or stand for the bailor as to create the relation here of master and servant or principal and agent, thus rendering the acts of the bailee legally those of the bailor." The bailor does not employ the bailee, but rather the bailee hires the use of a chattel, obtaining the benefits of such use and assuming its burdens. Therefore, when the bailee or his servant is negligent in the use of the chattel, the bailor cannot be connected therewith so as to render him liable to third persons for the resulting damage. SAME—EXPENSES ABOUT THE BAILED CHATTELS 52. The bailee must bear ordinary expenses incidental to the use of the thing; but for extraordinary expenses the bailor is responsible. Custom, or the contract of hiring, will ordinarily determine which party is to bear the various expenses connected with the bailment. 88 When both of these are silent, it is a fair presump- tion that the bailee, who bargains for the use of the chattel, should bear the expenses necessarily and reasonably incident to such use, as, for example, feed for a horse. 87 The compensation, it seems, is ordinarily fixed on this assumption. The express or presumed intention must govern ; and, as bearing upon this point, in doubt- ful cases the bailment purpose, and the rate and nature of the recompense must be duly considered. It would seem a fair presumption that the parties intended the bailor to bear any unforeseen and extraordinary expense, which permanently enhances the value of the property, or preserves it from loss, 88 provided, of course, the expense was not necessitated ferry, is not liable for an accident occurring on the boat while in use of the latter. Claypool v. McAllister, 20 111. 504. And see Tuckerman v. Brown, 17 Barb. (N. Y.) 191. «o McColligan v. Penn. By. Co., 214 Pa. 229, 63 Atl. 792, 6L.E.A. (N. S.) 544, 112 Am. St. Eep. 739 ; New Jersey Electric Ry. Co. v. New York, L. E. & "W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849, and other cases cited in preceding note. «• Handford v. Palmer, 2 Brad. & B. (Eng.) 359, 5 Moore, 74. «7 Schouler, Bailm. § 392; Handford v. Palmer, 2 Brad. & B. (Eng.) 359, 5 Moore, 74. «» Harrington v. Snyder, 3 Barb. (N. Y.) 380. 118 BAILMENTS FOR MUTUAL BENEFIT HIBED USE OP THINGS (Ch. 5 by the bailee's fault. Thus, when the horse becomes sick unex- pectedly, the expense of a veterinarian should be borne by the bailor." 8 It is generally held that, in the absence of such a stipu- lation in the contract, the bailor is under no obligation to pay the expenses of keeping the thing (such as a machine) in repair. 7 * SAME— DEGREE OF CARE TO BE EXERCISED BY THE BAILEE 53. The degree of diligence exacted of the bailee in the use of the hired chattel is placed at ordinary care. Since a locatio rei is a bailment for the mutual benefit of the bailor and bailee, the bailee must exercise ordinary care in using and keeping the hired chattel. 71 The legal duty of the bailee hav- ing been thus fixed, any breach of that duty is negligence, which renders the bailee liable to the bailor for any damage thereby prox- imately occasioned. Ordinary care, however, in the absence of e» One who hires a horse Is not liable for expense of caring for it, if it be- comes sick in his hands without his fault ; but the owner is liable therefor to third person, who, with his knowledge, ' cares for it at request of hirer. Leach v. French, 69 Me. 389, 31 Am. Rep. 296. io Gleason v. Smith, 39 Hun (N. T.) 61T; Central Trust Co. v. Wabash. St. L. & P. B. Co. (C. C.) 50 Fed. 857; Sutton v. Temple, 12 M. & W. (Eng.) 52; Herman v. Nye, 6 Q. B. D. (Eng.) 685; 1 Halsbury, Laws of England, p. 552. A provision in a lease of a machine, binding the lessee to keep the same in working order, requires the lessee to have some one in charge of the machine capable of managing it, and imposes on him the duty of exercising reasonable attention to keep the same in good working order. J. T. Stark Grain Co. v. Automatic Weighing Mach. Co., 81 Ark. 609, 99 S. W. 1103. Where a lease of machinery contained a covenant on the part of the lessor to repair the then existing plant so that the same may be successfully oper- ated, the lessor is bound to repair all the machinery which then comprises the plant, but he is not required to furnish additional machinery or larger pumps. Sharpless v. Zelley, 37 Pa. Super. Ct 102. 7i See Jones, Bailm. p. 88; Story, Bailm. §§ 398, 399; Domat, Civ. Law, lib. 1, tit. 4, § 3, pars. 3, 4; 1 Bell, Comm. (7th Ed.) pp. 481, 483. See, also, cases infra; Collins v. Bennett, 46 N. T. 490; Chamberlin v. Cobb, 32 Iowa, 161 ; Millon v. Salisbury, 13 Johns. (N. Y.) 211 ; Handford v. Palmer, 2 Brad. & B. (Eng.) 359 ; Clark v. U. S., 95 TJ. S. 539, 24 L. Ed. 518. See, on this sub- ject generally, the following recent cases: GANNON v. CONSOLIDATED ICE CO., 91 Fed. 539, 33 C. C. A. 662, Dobie Cas. Bailments and Carriers, 81 ; WISECARVER v. LONG & CAMP, 120 Iowa, 59, 94 N. W. 467, Dobie Cas. Bailments and Carriers, 78 ; Bradbury v. Lawrence, 91 Me. 457, 40 Atl. 332 ; Alden v. Grande Eonde Lumber Co., 46 Or. 593, 81 Pac. 385; Phillips v. In- ternational Text Book Co., 26 Pa. Super. Ct. 230; SINISCHALCHI v. BAS- LICO (Sup.) 92 N. Y. Supp. 722, Dobie Cas. Bailments and Carriers, 80. § 53) DEGREE OF CARE TO BE EXERCISED BT THE BAILEE 119 the bailee's active wrongdoing or special contract, is the full meas- ure of the bailee's duty. 72 When this duty has, therefore, been fulfilled, the bailee is not responsible for any loss or damage to the bailed chattel, regardless of how it happened. When loss of damage occurs, then, the apposite inquiry is: Was such loss or damage due to the bailee's negligence — that is, to the failure of the bailee to exercise ordinary care? Ordinary care or diligence, as we have already seen, 73 is that degree of care which men of ordinary prudence would exercise under like circumstances. This ordinarily prudent man is the standard, and by means of comparison with him the whole scheme of the requisite care to be exacted of bailees has been evolved. Slight care, it has been pointed out, is that exercised by men of less than ordinary prudence; while great care is that expected of men of more than ordinary prudence. The ordinary care of the mutual benefit bailee is higher in the scale of care than the slight care of the bailee in a bailment for the bailor's sole benefit ; it is correspondingly lower than the great care exacted of the bailee when the bailment is solely for the bailee's benefit. Here should be emphasized what has been already said in other " One who leased moving picture films for use was a bailee, and as such only bound to exercise ordinary care in using the films. MILLER v. MILOS- LOWSKY, 153 Iowa, 135, 133 N. W. 357, Dobie Cas. Bailments and Car- riers, 79. In an action to recover damages for injuries to a horse alleged to have happened while the horse was in the defendant's possession as a bailee for hire, the court commits no error in charging as follows: "The rule of law is that he is obliged to use ordinary diligence and care in! order to preserve the property, and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt be- cause he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordi- nary diligence and care, your verdict should be for the defendant." Bran- nan v. Haldeman, 35 Pa. Super. Ct 286. A contract of hire of chattels being one of mutual benefit, the hirer, in the absence of any agreement to the contrary, is only bound to exercise ordinary diligence in taking care of the property, and it is error to charge the jury Civ. Code 1895, § 2895, defining "extraordinary diligence," and section 2900, defining "gross neglect" ; such instructions being calculated to mislead or confuse the jury in applying the facts to the proper rule of diligence. Evans & Pennington v. Nail, 1 Ga. App. 42, 57 S. E. 1020. As to effect of special contract on the bailee's liability, see Rapid Safety Fire Extinguisher Co. of New York v. Hay-Budden Mfg. Co., 77 App. Div. 643, 79 N. Y. Supp. 1145 ; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790. Where a bailee on hire of a horse agrees to return it in as good condition as when received, or pay for it, he is liable where the horse died while in his possession, though without fault on his part. Grady v. Schweinler, 16 N. D. 452, 113 N. W. 1031, 14 L. R. A. (N. S.) 1089, 12F Am. St. Rep. 674, 15 Ann. Cas. 161. "Ante,§§ 16, 29, 40. 120 BAILMENTS FOE MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 connections on ordinary care. The term is one of intense rel- ativity, 7 * and the question whether the bailee has exercised such care can never be accurately answered, apart from the peculiar circumstances of each individual case. The nature of the chattel, its value, weight, whether it is animate or inanimate, and a thou- sand other considerations, enter into the problem, which is, in each particular instance, an intensely practical one, to be worked out in harmony with the dictates of sound common sense." Again, 7* Where plaintiff rented a truck to defendant D., who placed the same in charge of an experienced driver, and the truck was injured in a collision with a street car, owing to the negligence of the motorman, Without any negligence on the part of the driver, the bailees were not liable to/plaintiff for the dam- ages sustained. Littlefleld v. New York City Ry. Co., ml Misc. Rep. 637, 101 N. Y. Supp. 75. A bailee of a horse and wagon for hire is liable for the value thereof, if he fails to exercise reasonable care to protect it from theft. Klein- er v. Cohn, 75 Misc. Rep. 116, 132 N. Y. Supp. 779. Defendants hired a horse and wagon from plaintiff, which was taken to their place of business at 8 o'clock a. m., and from 8 until 11 o'clock the drivier worked in defendants' factory, during which time no watch was kept over the wagon, except that every 10 or 15 minutes one of defendants' workmen would look from the fifth- story window to see if the horse and wagon was still there. .The horse and wagon was stolen. Held, that defendants were negligent in not keeping a better watch to protect the horse and wagon. Id. Where, from its nature, the hirer must know that the thing is liable to deterioration or injury, this fact demands from him the exercise of greater diligence than in the case of a thing not supposed to be liable to injury from use. Beale v. South Devon Ry. Co., 12 Wkly. R. (Eng.) 1115; Wilson v. Brett, 11 Mees. & W. (Eng.) 113. See FORTUNE v. HARRIS, 51 N. C. 532,.Dobie Cas. Bailments and Carriers, 61; Rooth v. Wilson, 1 Barn. & Aid. (Eng.) 59, As to bailor's failure to in- form bailee of special circumstances, see Bradley v. Cunningham, 61 Conn. 485, 23 Atl. 932, 15 L. R. A. 679. As to bailee's failure to provide appliances to avoid consequences of an accident, see Stacy v. Knickerbocker Ice Co., 84 Wis. 614, 54 N. W. 1091. in Since the whole duty of the bailee, in this class of cases, is to exercise good faith and ordinary diligence in carrying out the contract, he is not liable when the thing is lost or injured by overwhelming force or inevitable acci- dent. Story, Bailm. §§ 408-412; Watkins v. Roberts, 28 Ind. 167; McEvers v. The Sangamon, 22 Mo. 187; Field v. Brackett, 56 Me. 121; Hyland v. Paul, 33 Barb. (N. Y.) 241; Ames v. Belden, 17 Barb. (N. Y.) 513; Reeves v. Constitution, Gilp. 579, Fed. Cas. No. 11,659. Even if the loss is not strictly inevitable, there is no liability if there has been no omission of rea- sonable diligence on the part of the bailee. Thus, a warehouseman is not re- sponsible for the destruction of goods, deposited there for hire, by rats or i mice, if he has used the ordinary precautions to guard against the loss. Cailiff v. Danvers, Peake (Eng.) 114. See, also, Menetone v. Athawes, 3 Bur- rows (Eng.) 1592; Longman v. Galini, Abb. Shipp. (Eng.) pt 3, c. 4, § 8; Id. (5th Ed.) p. 259, note d; 1 Bell, Comm. (5th Ed.) pp. 453, 455, 458; Id. (4th Ed.) § 391; Reeves v. The Constitution, Gilp. 579, Fed. Cas. No. 11,659. So, if the owner of slaves lets them to the master of a vessel for a voyage, and they run away in a foreign port, the master who has acted in good faith and with reasonable care la not responsible for their loss, although he might § 53) DEGREE OF OAEE TO BE EXERCISED BY THE BAILEE 121 what has already been said in connection with the estoppel of the bailor when he has knowledge of the bailee's character, skill, or manner of keeping the chattel is equally applicable here. 76 Ac- cordingly, when a horse is hired to a one-armed man, the bailor cannot expect the care that a man with two arms might exercise. Thus, in the case of the most frequent instances of locatio rei, the hiring of a horse, 77 ordinary care demands that the hirer sup- ply him with suitable food during the time of the hiring. 78 If the hired horse becomes exhausted, the hirer should abstain, tempo- rarily at least, from using him. 79 If the horse falls seriously sick during the journey, the hirer ought to procure the aid of a veter- inarian, if one can be obtained within a reasonable time or dis- tance. 80 Of course, in the class of bailments now under consideration, the skill of the hirer is not such an important element, nor one demanding the same consideration from the bailor, as in those bailments where services are hired about or upon a chattel. In the latter case, the bailor creates the bailment for the express pur- pose of securing the services of the bailee; in the former, the use of the thing hired is the prime object of the bailment, while any services rendered by the bailee are merely incidental to his use. have exercised a higher power of restraint or confinement over them. Bev- erly v. Brooke, 2 Wheat. 100, 4 L. Ed. 194. Where, however, the bailee's neg- ligence exposed the thing hired to danger of injury in the way in which it was injured, or contributed to such injury, he is liable. Buis v. Cook, 60 Mo. 391; Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677; Edwards v. Carr, 13 Gray (Mass.) 234; Wentworth v. McDuffie, 48 N. H. 402; SIN- ISCHALCHI v. BASLICO (Sup.) 92 N. Y. Supp. 722, Dobie Cas. Bailments and Carriers, 80. 'o Ante, pp. 69, 90; Schouler, Bailm. § 138. But see, also, Mooers v. Larry, 15 Gray (Mass.) 451. " As to what constitutes Ordinary diligence on the part of the hirer of a horse, see Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677; Cross v. Brown, 41 N. H. 283; Banfield v. Whipple, 10 Allen (Mass.) 27, 87 Am. Dec. 618; Edwards v. Carr, 13 Gray (Mass.) 234; Wentworth v. McDuffie, 48 N. H. 402 ; Rowland v. Jones, 73 N. C. 52 ; Ray v. TMbbs, 50 Vt. 688, 28 Am. Rep. 519; Buis v. Cook, 60 Mo. 391; McNeill v. Brooks, 1 Yerg. (Tenn.) 73 ; Harrington v. Snyder, 3 Barb. (N. Y.) 380 ; Jackson v. Robinson, 18 B. Mon. (Ky.) 1; Thompson v. Harlow, 31 Ga. 348; United Tel. Co. v. Cleve- land, 44 Kan. 167, 24 Pac. 49. "Handford v. Palmer, 2 Brod. & B. (Eng.) 359, 5 Moore, 74; Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677. "Bray v. Mayne, 1 Gow. (Eng.) 1. See Thompson v. Harlow, 31 Ga. 348; Graves v. Moses, 13 Minn. 335 (GU. 307) ; Vaughan v. Webster, 5 Har. (Del.) 256. so Story, Bailm. § 105 ; Dean y. Keate, 3 Camp. (Eng.) 4. See, also, Thomp- son v. Harlow, 31 Ga. 348. 122 BAILMENTS FOE MUTUAL BENEFIT HIBED USE OF THINGS (Ch. 5 Liability of Joint Bailees Where two persons jointly hire a thing for use, and it is injured during such use by the hirers, both may be made to answer for the misconduct or negligence of either one. 81 In a case, how- ever, in which only one hires a thing — as, for instance, a wagon — and invites another to share in its use, and such other person does so, but without exercising any control, and simply as a passenger, only he who has hired the wagon is responsible. 82 SAME— LIABILITY OF BAILEE FOR ACTS OF HIS AGENTS OR SERVANTS 54. The bailee is liable for the negligence of his agents and serv- ants within the scope of their employment, and also for the negligent acts of those whom he permits to use the thing hired. The bailee is responsible, not only for his personal negligence, but he may be held liable for the negligence of his agents or servants. 83 Thus, by the doctrine of "qui facit per alium facit per se" or "respondeat superior," the agent or servant becomes a mere instrumentality by which the principal or master accom- plishes his ends ; so that the act of the agent or servant becomes the act of the principal or master, who becomes responsible for the consequences, whether beneficial or not, flowing from such acts. 84 If, therefore, a hired horse is ridden by the servant of the hirer so immoderately that the horse is injured or killed thereby, the hirer is personally responsible. 86 So, if the servant of the hirer negligently leaves open the door of the hirer's stable and the hired si Davey v. Chamberlain, 4 Esp. (Eng.) 229 ; O'Brien v. Bound, 2 Speers (S. 0.) 495, 42 Am. Dec. 384. 82 Davey v. Chamberlain, 4 Esp. (Eng.) 229; O'Brien v. Bound, 2 Speers (S. C.) 495, 42 Am. Dee. 384; Dyer v. Erie Ry. Co., 71 N. Y. 228; Story, Bailm. § 399. But see, also, Banfleld v. Whipple, 10 Allen (Mass.) 27, 87 Am. Dec. 618. sspothier, Contrat de Louage, notes 193, 428; 2 Kent, Comm. (4th Ed.) lect. 40, pp. 586, 587; Pothier, Pand. lib. 19, tit. 2, note 31. Pothier holds the hirer responsible for the default or negligence of his boarders, guests, and undertenants. Pothier, Contrat de Louage, note 193; 1 Domat, bk. 1, tit. 4, § 2, art. 6. See, also, 1 Bell, Comm. (4th Ed.) § 389; 1 Bell, Comm. (5th Ed.) pp. 454, 455. si Schouler, Bailm. (2d Ed.) § 145; Jaggard, Torts, 239-280; Mechem on Agency, §§ 703, 704. 86 Jones, Bailm. 89; 1 Bl. Comm. 430, 431; 1 Domat, bk. 1, tit. 4, § 2, art. 5; 1 Bell, Comm. (5th Ed.) p. 455; 1 Bell, Comm. (4th Ed.) § 389. § 54) LIABILITY OF BAILEE FOB ACTS OF HIS AGENTS 123 horse is stolen by thieves, the hirer is responsible therefor. 89 So, if furnished lodgings are rented, and the renter's servants, chil- dren, guests, or boarders negligently injure or deface the furniture, he is responsible therefor. 87 So, if the injury is done by subagents employed by the hirer, responsibility for the negligent acts of the subagents rests upon the hirer. 88 In order that this may be true, however, the agent or servant must be acting within the scope of his employment. 89 The rela- tion of agency or service is limited strictly to the employment, and when the so-called agent or servant goes outside of the scope of such employment, he is no longer in legal contemplation an agent or servant. The term "scope of employment" is used in a broad sense, however, and contemplates the general course of the work of such agent or servant. Scope of employment, however, should be judged in relation to the specific act causing the loss or damage; and, if that particular act lies beyond such scope, the principal or master is not liable. But, if that specific act does lie within such scope, the principal or master is responsible, even though he may have in terms forbidden that particular act. Thus, the hirer of an automobile directs his chauffeur to drive the car alone to a certain place, but forbids the chauffeur from driving more than 20 miles an hour. The chauffeur, while proceeding to such place, wrecks the car, by negligently driving it at the rate of 50 miles an hour. The hirer is responsible to his bailor for the dam- age. The trend of modern decisions has been to broaden ap- preciably the meaning of "scope of employment"; but when the agent or~ servant steps entirely aside from the course of his em- ployment, his act then becomes his own act, for which he alone, so Jones, Bailm. 89; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1; President, etc., of Salem Bank v. President, etc., of Gloucester Bank, 17 Mass. 1, 9 Am. Dec. 111. 87 Jones, Bailm. 89; Pothier, Contrat de Louage, note 193. 88 Story, Ag. §§ 308, 311, 452, 457; Randelson v. Murray, 3 Nev. & P. (Eng.) 239, 8 Adol. & E. (Eng.) 109; Bush v. Steinman, 1 Bos. & P. (Eng.) 404, 409; Hilliard v. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743; Laugher v. Pointer, 5 Barn. & O. (Eng.) 547, 553, 554; Boson v. Sandford, 2 Salk. (Eng.) 440, 441; Milligan v. Wedge, 12 Adol. & E. (Eng.) 737; Quar- man v. Burnett, 6 Mees. & W. (Eng.) 499 ; Story, Bailm. § 401. so See McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768; Phil- adelphia & R. R. Co. v. Derby, 14 How. 468, 14 L. Ed. 502; Ward v. London General Omnibus Co., 42 L. J. (Eng. C. P.) 265 ; 1 Halsbury, Laws of Eng- land, p. 553. See, also, Hofer v. Hodge, 52 Mich. 372, 18 N. W. 112, 50 Am. Rep. 256; Maxwell v. Eason, 1 Stew. (Ala.) 514; McCaw v. Kimbrel, 4 Mc- Cord (S. C.) 220; Hall v. Warner, 60 Barb. (N. T.) 198; Smith v. Bouker, 49 Fed. 954, 1 C. C. A. 481 ; American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479. 124 BAILMENTS FOE MUTUAL BENEFIT HIRED USB OF THINGS (Ch. 5 and not the agent or master, is responsible. The question under discussion more property belongs to the subject of agency or mas- ter and servant. 80 Again, the bailee becomes responsible for the negligence of those whom he admits to the use of the thing hired. Such per- sons become, in a sense, the servants of the bailee, for whose negli- gent acts, resulting in loss or damage to the hired chattel, he can be held responsible by the bailor. Thus, if one hires furni- ture which he places in his room, and admits a third person to the enjoyment and use of such furniture, the bailor might hold the bailee for damage resulting from the negligent use of such furni- ture by the third person. 81 If the hirer, however, had used due care to protect the furniture from use by third persons, as by securely locking the door of his room, and such third person had, by breaking down the door, entered the room and misused the furniture without the hirer's consent, then the' third person (here a mere trespasser) alone, and not the hirer, would be liable to the bailor, 8 * SAME— COMPENSATION OF THE BAILOR 55. The bailee must make compensation to the bailor according to the terms of the contract of hiring. As the benefit of the bailment to the bailor consists in receiving the stipulated reward, it is the primary duty of the bailee to pay the agreed compensation to the bailor. 8 * When the bailment is »o jagg. Torts, 279; Storey v. Ashton, L. R. 4 Q. B. (Eng.) 476; Vander- bilt v. Richmond Turnpike Co., 2 N. Y. 479, 51 Am. Dec. 315 ; Bvansville & C. R. Co. y. Baum, 26 Ind. 70; Cheshire v. Bailey, [1905] 1 K. B. (Eng.) 237. See, also, Sanderson v. Collins, [1904] 1 K. B. (Eng.) 628, distinguishing the rather extreme case of Coupe Co. v. Maddick, [1891] 2 Q. B. 413. See 1 Hals- bury, Laws of England, p. 553. »i Schouler, Bailm. § 146; cases cited in note 89. See, also, Smith v. Read, 6 Daly (N. Y.) 33; Holder v. Soulby, 8 C. B. N. S. (Eng.) 254; Dansey v. Richardson, 3 E1.-& Bl. (Eng.) 144; GANNON v. CONSOLIDATED ICE CO, 91 Fed. 539, 33 C. C. A. 662, Dobie Cas. Bailments and Carriers, 81. »2 Schouler, Bailm. § 146. ss Knickerbocker Trust Co. v. Ryan, 227 Pa. 245, 75 AtL 1073; Cullen v. Lord, 39 Iowa, 302 ; Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777 ; Cushman v. Somers, 60 Vt. 613, 15 AtL 315; Wilcox & Gibbs Sewing Mach. Co. v. Himes, 67 Hun, 648, 21 N. Y. Supp. 760; Moneyweight Scale Co. v. Wood- ward, 29 Pa. Super. Ct 142; Van De Vanter v. Redelsheimer, 58 Wash. 38, 107 Pac. 847; Rogers v. McKenzie, 73 N. C. 487; Wright v. Melville, 3 C. & P. (Eng.) 542; 1 Halsbury, Laws of England, p. 552. Where a contractor to "shoot" a gas well for the owner caused a charge of nitroglycerine to so § 55) COMPENSATION OF THE BAILOB 125 fully completed, this ordinarily presents little difficulty. The contract is, as a rule, quite definite as to the compensation, which is usually, but not necessarily, in money. If the bailment is one of hiring, but the contract does not fix the compensation, then, as in .other similar cases, the bailee must pay a reasonable price. 94 What is reasonable is a question of fact, to be solved in the light of the particular circumstances of each case. When, however, the contract of hiring was for a definite time, and the bailment is only partially completed, owing to the de- struction (or damage rendering the chattel unfit for the use, thus practically amounting to destruction) of the hired chattel, the question of compensation has not been satisfactorily worked out in the rather few cases in which it has been presented. 95 Here the inquiry as to who (bailor or bailee) was at fault in bringing about the destruction is a prime factor in the problem. First, when the destruction is the fault of neither, it would seem (in the absence of a clear stipulation to the contrary) that neither bailor nor bailee can be sued for failure to complete the bailment, which has, of course, become impossible. But the bailee is liable pro tanto for such use of the chattel as he had prior to its destruction, paying for such use its reasonable worth. 96 The next case is when the destruction is due to the fault of explode as to damage the well, and then obtained from the owner drilling tools to repair the damage, on an agreement to pay reasonable compensation for such tools, and the contractor used the tools therefor, its promise to pay a reasonable compensation was supported by a valid consideration. Independ- ent Torpedo Co. v. J. E. Clark Oil Co,, 48 Ind. App. 124, 95 N. E. 592. One contracting to pay a reasonable compensation for the use of another's drill- ing tools to repair a gas well is liable to pay a reasonable compensation for the time he has possession and use of the tools, and his liability is not limited to days of actual service; the word "use" applying to one's service, employ- ment, or conversion to some purpose (quoting 8 Words and Phrases, pp. 7226, 7227). Id. »* Cullen v. Lord, 39 Iowa, 302 ; Rider v. Union India Rubber Co., 28 N. Y. 379. »o See, on this subject, Story, Bailm. & Carr. §§ 416-4T7a; Schouler, Bailm. & Carr. §§ 160-161 ; Goddard, Bailm. & Carr. § 123 ; 5 Cyc. 192. Cases on this subject are very rare. In Gleason v. Smith, 39 Hun (N. Y.) 617, the boiler broke down and bailor refused to repair it, but it was held the bailee must pay the agreed rent. »« Williams v. Holcombe, 4 N. C. 33; WILKES v. HUGHES, 37 Ga. 361 Dobie Cas. Bailments and Carriers, 82 (death of slave) ; Bacot v. Parnell, 2 Bailey (S. C.) 424. See, also, George v. Elliott, 2 Hen. & M. (Va.) 5; Col- lins v. Woodruff, 9 Ark. 463; see Harrington v. Snyder, 3 Barb. (N. Y.) 380 Warth v. Mack, 79 Fed. 915, 25 C. C. A. 235, though here this contingency was covered by the contract. See, also, authorities in preceding note. That the bailor is not liable for nonperformance, see Stewart v. Stone, 127 N. Y. 600, 28 N. E. 595. 14 L. R. A. 215. 126 BAILMENTS FOR MUTUAL BENEFIT HIRED USE OF THINGS (Ch. 5 the bailor. Here it would seem that, in spite of the bailor's fault, the bailee should pay pro tanto for such use as he received, while the bailee should have a right of action against the bailor for the latter's wrong, resulting in the destruction of the chattel, before the expiration of the time agreed. Hence the bailee should be liable for the reasonable worth of his actual use, minus such damages as he has suffered from the wrong of the bailor. 97 If such damage was greater than the reasonable worth of the bailee's use, then the bailee should recover such excess. Finally, the destruction may have been due to the fault of the bailee. Here the bailee should not be allowed to set up his own fault as an excuse, and the bailor recovers the full compensation. 98 If the chattel is only damaged, and is returned to the bailor, the bailee is entitled as an offset to the value (if any) of such use to the bailor, or to such person as he may have hired it, as could be made of the chattel during the remaining time of the bailment period. 99 SAME— TERMINATION OF THE BAILMENT 56. Locatio rei may be terminated by — 1. Act of the parties. (a) Accomplishment of the bailment purpose or expiration of the time for which bailment was created. (b) Mutual consent of bailor and bailee. (c) Bailee's wrong, at option of bailor. 2. Operation of law. (a) Destruction of hired chattel. Ordinarily death or change of legal status of the parties does not terminate a bailment of this class. »' See authorities cited in note 95. Such cases will be rare, since the bail- ee's use and control of the goods afford scant opportunity for destruction by the bailor's fault. In HICKOK v. BUCK, 22 Vt. 149, Dobie Cas. Bailments and Carriers, 63, the bailor took the mare from the bailee; but there the bailee was plaintiff and the bailor defendant in an action of trover, and it was held that plaintiff could recover. »» See authorities cited in note 95; Bigbee v. Coombs, 64 Mo. 529. In HARTFORD v. JACKSON, 11 N. H. 145, Dobie Cas. Bailments and Carriers, 64, the bailor's creditors attached the property. Since the creditors had no right thus to disturb the bailee's possession, which is good against the world, it was held that the bailee was liable to the bailor for the agreed compensa- tion. But see Muldrow v. Wilmington & M. R, Co., 13 Rich. (S. C.) 69, in which it was held that on the death of a slave during the time, due to bailee's negligence, the rent should be apportioned. o° See Johnson v. Meeker, 96 N. Y. 93, 48 Am. Rep. 609, in which bailee abandoned the hired barge. § 56) TEBMINATION OF THE BAILMENT 127 Act of the Parties The termination of locatio rei by the three events set out under the head of "acts of the parties" is clear, and, as such bailments, in this respect, present no distinctive features, no further discus- sion of these is needed. 1 It should be noted, however, in connection with the consent of the parties, that though locatio rei may be terminated by consent of both parties, neither the bailor nor the bailee alone has the right to terminate the bailment. 2 This is true because there is a legal consideration moving from each party, on which he can base his rights against the other party. Of course, when the bailment is made terminable at the option of either party, it is a bailment at will, and either bailor or bailee may terminate it, and this is the case when it is indefinite as to time. 8 Operation of Law The destruction of the hired chattel necessarily ends the bail- ment, leaving the parties to work out their various rights, depend- ing upon the circumstances surrounding such destruction.* Since the bailee has a special property in the chattel, ordinarily, the death of the bailor does not terminate the bailment, and the bailee may hold such chattel, according to the terms of the contract of hiring, as against the personal representative of the bailor. 6 In like manner, unless the bailment was a personal one, involving confidence reposed, it is not terminated by the bailee's death, but his rights pass to his personal representative. 8 When, however, i Ante, § 20. 2 This follows from the fact that the bailment contract is binding on both the parties, and neither can rescind without the other's consent. The very idea of the bailee's special property in a bailment for a definite time pre- cludes the idea of the bailor's right to end the bailment. See ante, p. 112. a Here, while the rights of each continue while the bailment continues, the failure to specify the time during which the bailment is to continue is equiva- lent to an agreement that either bailor or bailee has the option to end the bailment. See Learned-Letcher Lumber Co. v. Fowler, 109 Ala. 169, 19 South. 396; Gleason v. Morrison, 20 Misc. Hep. 320, 45 N. Y. Supp. 684 ; New York, L. B. & W. E. Co. v. New Jersey Electric Ey. Co., 60 N. J. Law, 338, 38 Atl. 828 ; Puffer & Sons Mfg. Co. v. Baker, 104 N. C. 148, 10 S. E. 254 ; Drake v. Eedington, 9 N. H. 243. * See ante, p. 46. o This follows from the nature of the bailee's special property in the goods. It is well settled as to pledges that the pledgor's (bailor's) death does not affect the bailee's (pledgee's) special property in the goods pledged (bailed). Fulton v. National Bank of Denison, 26 Tex. Civ. App. 115, 62 S. W. 84. See Van Zile, Bailm. & Carr. § 82. • This is a general rule of contracts. See McKeown v. Harvey, 40 Mich. 226; Bambrick v. Webster Groves Presbyterian Church Ass'n, 53 Mo. App, 225 128 BAILMENTS FOB MUTUAL BENEFIT? HIEED USB OF THINGS (Ch. 5 the bailment is a personal one, the death of the bailee causes the bailment to cease. 7 The effect of a change of legal status is, in som encases, far from clear. Since bankruptcy does not sever contractual relations, it would seem that neither the bankruptcy of the bailor nor that of the bailee operates, of itself, to terminate the bailment. 8 There seem to be few cases involving such a change of legal status as insanity. Probably the insanity of the bailor would not have a greater effect than his death, and the bailment which would con- tinue against his personal representative ought to continue against his committee. Certainly, when the bailment is a personal one, it would be terminated by the bailee's insanity. When the bail- ment is not personal, the question is more doubtful. It would seem, in such case, that the bailment would not be terminated, but that the insane bailee's rights and liabilities would pass to his committee. The question, as it very seldom arises, is not of great practical importance. SAME— REDELIVERY OF THE BAILED GOODS 57. As in other bailments, the bailee should, on the termination of the bailment, redeliver the bailed goods, together with any increase or profit, according to the directions of the bailor. The principles governing the bailee's duty to redeliver, already discussed in connection with other classes of bailments, are equal- ly applicable here, and will not be repeated. 9 The place of rede- livery will usually be determined by contract, custom, or usage. i This rale also applies to contracts in general. See Marvel v. Phillips, 162 Mass. 399, 38 N. B. 1117, 26 L. R. A. 416, 44 Am. St Rep. 370. s See Remington on Bankruptcy, § 451. » See ante, § 19. See, also, Syeds v. Hay, 4 Term R. (Bng.) 260, per Buller, J.; Pothier, Oontrat de Louage, note 197; Pothier, Pand. lib. 19, tit 2, notes 27, 28, 29. See, also, Schouler, Bailm. (2d Ed.) § 158; Cobb v. Wal- lace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435; European & Australian Royal Mail Co. v. Royal Mail Steam Packet Co., 8 Jur. N. S. (Eng.) 136 ; Erwin v. Arthur, 61 Mo. 386; Stephenson v. Hart, 4 Bing. (Eng.) 476; Stephens v. Elwall, 4 Maule & S. (Eng.) 259 ; Youl v. Harbottle, Peake (Eng.) 68 ; Dever- eux v. Barclay, 2 Barn. & Aid. (Eng.) 702; Willard v. Bridge, 4 Barb. (N. Y.) 361 ; Pothier, Contrat de Louage, notes 197, 198, 200 ; Pothier, Pand. lib. 19, tit. 2, notes 27, 28, 29 ; 1 Domat, bk. 1, tit 4, § 2, note 11 ; Cooper v. Barton. 3 Camp. (Eng.) 5, note; Millon v. Salisbury, 13 Johns. (N. Y.) 211; Reyn- olds v. Shuler, 6 Cow. (N. Y.) 823. § 58) BAILMENTS FOR MUTUAL BENEFIT HIRED SERVICES 129 CHAPTER VI BAILMENTS FOR MUTUAL BENEFIT— HIRED SERVICES ABOUT THINGS 58. Classification. 59. Rights and Duties of the Parties— In General. 60. Performance of the Agreed Services by the Bailee. 61. Interest of the Bailee— Right to Bring Suit. 62. Compensation of the Bailee. 63. Expenses of the Bailment. 64. The Lien of the Bailee on the Bailed Chattels. 65. The Degree of Care to be Exercised by the Bailee. 66. Delegation of the Services by the Bailee to a Third Person. 67. Specific Bailments. Warehousemen. Wharfingers. Safe-Deposit Companies. Factors or Commission Merchants. Officers Charged with the Custody of Public Funds. 68. Termination of the Bailment. 69. Redelivery of the Bailed Goods. CLASSIFICATION 58. Locatio operis bailments, or hired services about a thing, are divided into: (1) Ordinary bailments for hire. (a) Locatio operis faciendi, or hired services about a thing. (b) Locatio custodiae, or the hired custody of a thing. (c) Locatio operis mercium vehendarum, or the hired carry- ing of a thing from one place to another. (2) Extraordinary bailments for hire. (a) Innkeepers. (b) Common carriers of goods. (c) Post Office Department. This classification of locatio operis bailments has already been given, and briefly discussed, in the classification of mutual benefit bailments in general. 1 The classification of the ordinary locatio operis bailments is largely one of convenience, based upon dif- ferences in the nature of the services hired. Such ordinary bail- ments, then, may be divided into three classes : (1) Locatio operis faciendi, or the hire of active labor and i Ante, § 43. Dob.Bailm. — 9 130 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Ch. 6 services upon a thing. Examples of this are the hiring of jewelers to set jewels, or watchmakers to repair watches. This bailment is in many respects analogous to a mandatum, differing only in the fact that the services are rendered for a reward. (2) Locatio custodise, or the hired custody of a thing. This is simply the receiving of goods on deposit, with a reward to the bailee for such custody. It differs from a depositum in that here the bailee who undertakes the .custody of the goods receives a compensation. While it is true that the custody of goods neces- sarily involves some physical labor and services, there are yet differences between these two classes of locatio operis bailments. The distinction lies in the fact that in locatio operis faciendi the performance of specific services about the goods constitutes the principal undertaking contemplated by the parties, and the bailee's custody is merely incidental, existing solely in order that these services might be performed. On the other hand, in locatio cus- todise the custody of the thing by the bailee is itself the principal undertaking. The bailee is charged' solely with keeping the goods, and renders no services unless they are involved in such custody. 2 Thus a watchmaker charged with repairing a watch (locatio operis faciendi) has custody of the watch only in order that he may render the specific services involved in making the repairs. In the case of a warehouseman, charged with the storage of goods, the custody is paramount ; he has only to keep the goods, perform- ing the more or less inactive services implied by, and involved in, such custody. The distinction between locatio operis faciendi and locatio custodiae (both mutual benefit bailments) is precisely the same as the difference between the mandatum and depositum (both bailments for the sole benefit of the bailor). 8 (3) Locatio operis mercium vehendarum, or the hired transpor- tation of goods. These are simply a particular type of bailment of the class just discussed, the services here consisting in the carrying of the goods from one place to another. It should be carefully remembered, though, that what is said in the present chapter on locatio operis bailments in general is applicable only 2 Story, Bailm. § 422;* Jones, Bailm. 98. 8 Ante, p. 50. Where plaintiff in consideration of a purchase of goods and reimbursement of expenses, agreed to receive, care for, and ship other goods purchased elsewhere, it was a bailee for hire, and not a gratuitous bailee as affecting the degree of care required of it Michigan Stove Co. v. Pueblo Hardware Co., 51 Colo. 160, 116 Pac. 340. Upon receiving an automobile for repairs, to be made for the mutual benefit of the owner and the repairer, the repairer becomes a bailee for hire, responsible for loss by fire only by failure to exercise ordinary care. Ford Motor Co. v. Osburn, 140 111. App. 633. § 59) EIGHTS AND DUTIES OF THB PARTIES — IN GENERAL 131 to the private carrier of goods and not to the distinctive common carrier. There are no essential legal differences between the three classes of bailments just enumerated, convenience constituting the basis of such classification. The same rules, accordingly, control the rights and duties of the parties in all three classes. These rules, applicable to all these three classes of the ordinary locatio operis bailments, are discussed in the present chapter. The extraordinary bailments of locatio operis, we have seen,* are as a class sharply differentiated, owing to considerations of public policy, from all other bailments. Not only is this true, but these extraordinary bailments present keen distinctions and differences among themselves. The (a) innkeeper, 5 (b) common carrier of goods, 6 and (c) post office department r will therefore be discussed separately and in great detail. Of these, the common carrier of goods is by far the most important bailee known to our civilization, so that the rights and duties of this bailee are treated with appropriate detail and at corresponding length. RIGHTS AND DUTIES OF THE PARTIES— IN GENERAL 59. In the hiring of work and labor about a thing, as in other bailments, the rights and duties of the parties are pri- marily controlled by the bailment contract. When not thus controlled, these rights and duties are implied by law; the distinctive features of the bailments in ques- tion being the performance of more or less active services about the goods by the bailee, who receives a compensa- tion for such services. Here, as elsewhere, the bailor and bailee may determine by con- tract the exact extent and nature of their rights and duties. 8 Such contract will, of course, be valid, unless it is in violation of law or against public policy. 8 4 Ante, § 43. 5 See post, chapter 8. « See post, chapters 9-14. i See post, chapter 15. « Upon a bailment of goods for work and labor to be done thereon by the bailee, the contract between the parties arises immediately upon the delivery of the goods to the' bailee, and he cannot afterwards impose conditions, nor limit his liability resulting from such bailment Dale v. See, 51 N. J. Law, 378, 18 Atl. 306, 5 L. R._A. 583, 14 Am. St Rep. 688. » See ante, pp. 18-19. As to whether bailee may by contract relieve himself from liability for negligence is not settled. That he cannot, see Patterson v. 132 BAILMENTS FOB MUTUAL BENEFIT HIBED. SEBVICES (Ch. 6 In locatio operis, the bailor is the person receiving the immedi- ate benefit from the carrying out of the bailment (i. e., the per- formance of the work and labor) ; while the compensation or re- ward (usually, but not necessarily, in money) is received by the bailee. The bailor has now become the hirer, and the bailee is now the letter, of the services. From this distinction flow most of the legal consequences that distinguish locatio operis from locatio rei. PERFORMANCE OF THE AGREED SERVICES BY THE BAILEE 60. The bailee must in good faith perform the agreed services about the chattel. In bailments for hired services about a chattel, the primary duty of the bailee is to perform the agreed services in good faith ; 10 for the bailment is created by the bailor for the express purpose of securing the performance by the bailee of the services in ques- tion, and it is only in consideration of such services that the stip- ulated compensation " is to be paid. For any breach or failure in this respect the bailee must respond to the bailor in damages. Since the bailment contract is based on a consideration, the bailee is liable if he refuses to enter upon the bailment, a pure nonfeasance. He is equally liable when he does enter upon the bailment, but fails without legal excuse to perform the services as agreed. What these particular services are depends on the specific bailment contract, and such services may Wenatchee Canning Co., 59 Wash. 556, 110 Pac. 379; Hoyt v. Clinton Hotel Co., 35 Pa. Super. Ct 297. In favor of the validity of such contracts (which is believed to be the better doctrine), see section 106, and cases there cited in note 13. These concern the private carrier for hire, but he is merely an ordinary locatio operis bailee and liable accordingly. io This amounts simply to stating that the bailee must perform a valid bailment contract into which he has entered. He contractually undertakes to perform certain services ; the bailor agrees by contract to pay the stipulated compensation for such performance. The bailment contract thereby imposes on each the duty of performing his peculiar part of the transaction. See 1 Halsbury, Laws of England, p. 559. Where a United States collector selling goods under distraint agrees with the purchaser to ship the goods to a third person, and to send the purchaser the bill of lading, he is liable for a breach of this agreement Sprinkle v. Brimm, 144 K. 0. 401, 57 S. H. 148, 12 L. R. A (N. S.) 679. 11 See post, | 62. § 61) INTEREST OP THE BAILEE — EIGHT TO. BBING SUIT 133 be of almost infinite variety. The questions arising in this con- nection depend upon, and are governed by, the general rules of contract. 12 INTEREST OF THE BAILEE— RIGHT TO BRING SUIT 61. The bailee has a special property in the bailed goods which he can protect by appropriate action, either against the bailor or third parties. The bailor can sue third parties for any injury to his reversionary interest in the bailed chattels In locatio operis, the bailee can keep the goods, pending the accomplishment of the bailment purpose, in order that he Vnay earn the stipulated compensation. This right of the bailee to un- disturbed possession is good against all the world, and therefore the bailee has clearly a special property in the thing about which the services are to be performed 13 It is a distinctive feature of locatio operis bailments that the bailee must frequently add material of his own to the bailed goods in order to carry out the bailment purpose. His special property in the bailed goods thereby assumes an added importance. This special property of the bailee in the goods he can protect by appropriate action against the bailor or against third persons wrongfully interfering with it. Thus the bailee can bring tres- pass or trover against such third parties. 14 It is generally held 12 See, also, post, §§ 62, 65. is See Story, Bailm. § 422a; Schouler, Bailm. (2d Ed.) § 110; Engel v. Scott & Holston Lumber Co., 60 Minn. 39, 61 N. W. 825 ; Eaton v. Lynde, 15 Mass. 242; Grandy v. Kittredge, 8 Cush. (Mass.) 562; Morse v. Androscoggin R. Co., 39 Me. 285; BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84. This special property of the bailee is, of course, an insurable interest in the goods, which the bailee may protect by fire insurance. Fire Ins. Ass'n v. Merchants' & Miners' Transp. Co., 66 Md. 339, 7 Atl. 905, 59 Am. Rep. 162 ; Sheppard v. Peabody Ins. Co., 21 W. Va. 368. The bailee may insure the goods for their full value, holding any excess beyond his own interest for the bailor. Waring v. Indemnity Fire Ins. Co., 45 N. T. 606, 6 Am. Rep. 146. 1* Atlantic Coast Dine R. Co. v. Partridge, 58 Fla. 153, 50 South. 634; Miz- ner v. Frazier, 40 Mich. 592, 29 Am. Rep. 562 ; National Surety Co. v. United States, 129 Fed. 70, 63 C. C. A. 512; Shaw v. Kaler, 106 Mass. 448; BUR- DICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers,' 84; Evans v. Nichol, 4 Scott, N. R. 43. But see Morse v. Andro- scoggin R. Co., 39 Me. 285; In re Phoenix Bessemer Steel Co., 4 Ch. Div. (Eng.) 112. Thus, where a bailee of yarn was to procure it to be made into cloth for a commission, it was held that he had a special property in the 134 BAILMENTS FOR MUTUAL BENEFIT HIRED SERVICES (Ch. 6 that the bailee can recover full damages for the loss or injury in such case, holding the excess beyond his own interest in trust for the bailor; and such a recovery is a bar to any subsequent action by the bailor. 16 For any tortious injury by a third person to the bailed chattel, so serious as to affect his reversionary interest, the bailor has a right to sue such third party. 16 When the wrongful act affects only the possession of the bailee, however, and not this reversionary- interest of the bailor, the latter should have no right to sue the third party; such right being then limited to the bailee: 17 The doctrine that the rights of the bailor and bailee should be sepa- rately valued and that each should sue solely for the damage to his own interest, previously referred to, 18 finds in the locatio operis bailments unusually strong support. 18 COMPENSATION OF THE BAILEE 62. Upon complete performance of the bailment, the bailee is enti- tled to the agreed compensation. When the work is com- pleted, but not according to the bailment contract, or when the work is left uncompleted, various considerations affect both the right and measure of a recovery by the bailee. yarn, and that he might maintain an action against any one who should wrongfully take it from his own possession, or from that of his servant, to whom he had delivered it to be woven. Eaton v. Lynde, 15 Mass. 242. is National Surety Co. v. United States, 129 Fed. 70, 63 C. C. A. 512; Moran v. Portland Steam Packet Co., 35 Me. 55; Hare v. Fuller, 7 Ala. 717; Union Pac. R. Co. v. Meyer, 76 Neb. 549, 107 N. W. 793, 14 Ann. Cas. 634 ; Leoncini v. Post (Com. PI.) 13 N. Y. Supp. 825. is This seems to follow from the general principle that one having a re- versionary interest in personal property may sue one not in possession of such property, whose wrong causes such serious and permanent injury to the prop- erty as to diminish the value of such reversionary interest. This right is said to exist on the part of the reversioner in personal, just as in real, property. See New Jersey Electric Ey. Co. v. New York, L. E. & W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849; Shearm. & Redf. Neg. § 119; Pol- lock, Torts, p. 432; Mears v. London & S. W. Ry. Co., 11 C. B. N. S. 850; Lexington & O. R. Co. v. Kidd, 7 Dana (Ky.) 245; White v. Griffin, "49 N. C. 139 ; Howard v. Farr, 18 N. H. 457 ; Hawkins v. Phythian, 8 B. Mon. (Ky.) 515. 17 WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Carriers, 85 ; Cowing v. Snow, 11 Mass. 415. is Ante, pp. 64, 87. i » Since here the bailee's interest is a very real one, which can readily be Riven n money value. § 62) COMPENSATION OF THE BAILEE 135 In locatio opens, the primary right of the bailee is to receive the stipulated compensation. The reward is the benefit accruing to the bailee, in consideration of which he performs the services. The receipt of the compensation by the bailee distinguishes locatio operis from all other bailments. This whole problem of the bailee's compensation is variously affected by questions of whether the services have been completely performed, and, if so, whether or not they were performed according to the bailment contract, and whether, when the services are not completed, this is due to de- struction of the bailed chattel without fault of the parties, or to some fault on the part of the bailor or bailee. There is much confusion and uncertainty in the cases, due in many instances to a failure to make the distinctions just indicated. The real question involved is also often obscured by the subtle, but often useless, niceties of common-law forms of action in states which still cling to this outworn system of pleading. The decided trend of modern decisions has been towards allowing compensation to the bailee for value conferred on the bailed chattel, with damages to the bailor for any harm caused by the bailee's departure from the bailment contract. The treatment of compensation, accordingly, conforms to the following analysis: 20 1. Work fully completed (a) According to mutual intent of the parties. (b) Not according to such mutual intent. 2. Work not fully completed, owing to (a) Destruction of the thing bailed, without fault of either party. (b) Fault of bailor, preventing completion of the work. (c) Fault of bailee, in abandoning the work while incom- plete. In this connection, it should be noted that, when the person is to furnish materials out of which a thing is to be made and deliver the completed thing to another, this is not a bailment, but an agreement to sell. 21 Again, where one is called on to perform 20 This analysis is practically that of Goddard (Bailm. & Carr. § 129), whose brief treatment of this topic is yet one of the clearest to be found in the books. 2i In such a case the title remains in the maker seller, with the attendant risk of loss, until after the completion of the article. See McConihe v. New York & E. R. Co., 20 N. Y. 495, 75 Am. Dec. 420 ; Merritt v. Johnson, 7 Johns. (N. Y ) 473, 5 Am. Dec. 289 ; Atkinson v. Bele, 8 Barn. & Cress. (Eng.) 277 ; Laflin & R. Powder Co. v. Burkhardt, 97 TJ. S. 110, 24 L. Ed. 973. However, when an owner leaves an old article with another to be repaired, this is nev- 136 BAILMENTS FOB MUTUAL BENEFIT HIRED SERVICES (Ch. 6 services about goods not delivered into his possession, this is not a bailment, but a mere contract of service, as where one is engaged to paint a ship in the owner's possession. These cases belong to sales and contracts, but not to bailments. The analogies, though, are helpful. Work Fully Completed — According to Mutual Intent of the Parties If the work be fully completed, according to the terms of the bailment contract, so that there has been a full performance of all his duties by the bailee, he is then entitled to full compensation. 22 If the amount is fixed in the contract, this is, of course, the measure of the bailee's recovery. If the amount is not so fixed, then the bailee recovers a reasonable price for his services. 23 If the work be completed, but the chattel is destroyed, without fault, in the bailee's possession, before he redelivers it to the bailor, the bailee can still recover. This is placed on the doctrine of ac- cession, by which the labor and material pass to the chattel as they are added; and the doctrine res perit domino makes the chattel perish to the owner, in its condition at the time it is destroyed. 2 * Of course, the bailee may change this by stipulating, expressly or by clear implication, that he shall be entitled to compensation only when he has redelivered the goods to the bailor. 25 Courts, though, lean strongly against such a construction of the agreement. ertheless a bailment, though- the value of the repairs may far exceed the value of the article when delivered. Gregory v. Stryker, 2 Denio (N. T.) 628. See, also, Schouler, Bailm. & Carr. (2d Ed.) § 111. 22 Where a person fully performed his duties under a contract of storage of a boat and to furnish materials for repairs, and the- owner accepted the boat after such repairs, the bailee should be allowed recovery for his services. Webster v. Beebe, 2 Boyce (Del.) 161, 77 Atl. 769. This practically amounts only to saying that one who has fully performed his part of the contract can look to the other party for a full performance on the part of the latter. 23 Dougherty v. Whitehead, 31 Mo. 257; Sumpter v. Hedges (1898) 1 Q. B. (Bng.) 673. Of course, if the services are performed by the bailee without any express or implied promise of payment on the part of the bailor, the bailee can recover nothing for his services. As was said by Pollock, C. B., in Taylor v. Laird, 25 L. J. (Ex.) 329, 332: "Suppose I clean your property without your knowledge; have I then a claim on you for payment? One cleans another's shoes ; what can the other do but put them on? Is that evi- dence of a contract to pay for the cleaning." See 1 Halsbury, Laws of Eng- land, p. 557. 24 KAFKA v. LEVENSOHN, 18 Misc. Rep. 202, 41 N. T. Supp. 368, Dobie Oas. Bailments and Carriers, 87; Rothoser v. Cosel, 39 Misc. Rep. 337, 79 N. Y- Supp. 855 ; Halyard v. Dechelman, 29 Mo. 459, 77 Am. Dec. 585. See, also, 2 Kent, Gomm. 590-591; Story, Bailm. § 421. as KAFKA v. LEVENSOHN, 18 Misc. Rep. 202, 41 N. X. Supp. 368, Dobie Oas. Bailments and Carriers, 87. § 62) COMPENSATION OP THE BAILEE 137 Same— Not According to Mutual Intent of the Parties The next case is where the work has been fully completed, but not according to the terms of the contract, as where there has been a deviation from such contract, or an improper execution thereof, or where the work has not been completed within the stipulated time. If such deviation was with the .assent of the bailor, or was oc- casioned by his fault, then the bailee can recover on a quantum meruit the reasonable value of the services which he performed. 26 Even though this deviation is due to the fault of the bailee, he may still, as before, recover the reasonable worth of the services; but this is now reduced by the damages which his deviation has caused to the bailor. 27 Of course, in such a case, if the damage equals the worth of the service, the bailee recovers nothing. 28 When the work is well and properly done according to the contract, save that it is not completed within the stipulated time, it would seem that the bailee should here recover the contract price (rather than reasonable worth) for the services, diminished by the damage suf- fered by the bailor owing to the bailee's failure to complete the work in time. 29 When the departure from the contract consists in the bailee's doing more than was called for by the agreement, instead of less, he cannot recover any extra compensation, in the absence of the bailor's acquiescence or consent. Thus, where, without such con- sent, the bailee does finer work or uses more valuable materials than the agreement calls for, he cannot recover more than the stip- * « See, in general, 1 Bell, Comm. (5th Ed.) pp. 455, 456; 1 Bell, Comm. (4th Ed.) §§ 391, 393; Bank of Columbia v. Patterson, 7 Cranch, 299, 3 L. Ed. 351; Robson v. Godfrey, 1 Starkie (Eng.) 275; Id., 1 Holt, 236; Pepper v. Burland, Peake (Eng.) 103. " Cases involving bailments here seem to be rare. See, in general, the following cases: Farnsworth v. Garrard, 1 Camp. (Eng.) 38; Duncan v.. Blundell, 3 Starkie (Eng.) 6; Basten v. Butter, 7 East (Eng.) 479; Linning- dale v. Livingston, 10 Johns. (N. Y.) 36; Jennings v. Camp, 13 Johns. (N. T.) 94, 97, 7 Am. Dec. 367 ; Grant v. Button, 14 Johns. (N. Y.) 377 ; Jewell, v. Sehroeppel, 4 Cow. (N. Y.) 564; Chapel v. HickeS, 2 Cromp. & M. (Eng.) 214; Id., 4 Tyrw. (Eng.) 43; Cutler v. Close, 5 Car. & P. (Eng.) 337; Thorn- ton v. Place, 1 Moody & R. (Eng.) 218; Taft v. Inhabitants of Montague, 14 Mass. 282, 7 Am. Dec. 215; Feeter v. Heath, 11 Wend. (N. T.) 477. 2 8 See cases cited in preceding note; also, Hillyard v. Crabtree's Adm'r, 11 Tex. 264, 62 Am. Dec. 475; Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534 ; Jones v. Foreman, 93 Iowa, 198, 61 N. W. 846 ; Higman v. Camody, 112 Ala. 267, 20 South. 480, 57 Am. St. Rep. 33. 29 See Jewell v. Sehroeppel, 4 Cow. (N. Y.) 564. See, also, Littler v. Hol- land, 3 Term. R. (Eng.) 590; Philips v. Rose, 8 Johns. (N. Y.) 392; Duboib v. Delaware & H. Canal Co., 4 Wend. (N. Y.) 285. 138 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Ch. 6 ulated compensation. 80 His attempt to impose added financial bur- dens on an unwilling bailor will not be countenanced by the law. It need hardly be added that in the case of services complete, but different from the contract, as well as when the services are not completed, the bailor can render himself liable for the full com- pensation by waiving his right to a perfect performance and accept- ing such incomplete or different performance in lieu thereof. 31 Whether there has been such "a waiver — in other words, whether the bailor accepts as a full or merely a part performance — is to be determined from the facts of each case. 82 Work Not Completed — Destruction of Thing Bailed Without Fault of Either Party By the doctrine of accession, already discussed, when the bailee adds materials of his own to the bailed chattel, the title to such accessorial material passes to the bailor, as the owner of the prin- cipal thing. The bailee's labor and services are also viewed as being added to the thing as soon as they are bestowed thereon. When, therefore, the chattel' is destroyed without fault, the bailee can recover pro tanto for all his materials used and labor bestowed on the chattel. 88 As has just been pointed out, the thing perishes i sol Bell, Comm. (5th Ed.) pp. 455, 456; 1 Bell, Comm. (4th Ed.) §§ 391, 393 ; Wilmot v. Smith, 3 Car. & P. (Eng.) 453 ; Lovelock v. King, 1 Moody & R. (Eng.) 60; Burn v. Miller, 4 Taunt. (Eng.) 745, 749. si Linningdale v. Livingston, 10 Johns. (N. Y.) 36; Burn v. Miller, 4 Taunt (Eng.) 745, 749; Dubois v. Delaware & H. Canal Co., 4 Wend. (N. T.) 285; Hollinsead v. Mactier, 13 Wend. (N. Y.) 276. 82 The cases that present difficulty are those in which the waiver is not express, but it is sought to imply such a waiver. Where the article is of small bulk and can easily be rejected if unsatisfactory, and when the bailee is close at hand, a waiver might well be implied when no objection is made by the bailor ; whereas, if the article is bulky and the bailee in such a place and at such a distance that such rejection would be much more difficult, such a waiver would be less readily implied. 83 Poth. Cont. de Louage, note 433. See, also, Story, Bailm. § 426; Gillett v. Mawman, 1 Taunt. (Eng.) 137. This was decided in an early English case, in an action by a shipwright for work and labor done, and for materials pro- vided, in repairing the defendant's vessel. Before the completion of this work with only three hours' work remaining to be done, the ship was burned by an accidental fire. It was held that the shipwright was entitled to recover for his labor and materials. This decision was based upon the maxim that in such a case "res perit domino." Menetone v. Athawes, 3 Burrows (Eng.) 1592. Mr. Bell has deduced the following as the true rules on the subject: If the work is independent of any materials or property of the employer, the manufacturer has the risk, and the unfinished work perishes to him. If he is employed in working up the materials, or adding his labor to the property of the employer, the risk Is with the owner of the thing with which. § 62) COMPENSATION OF THE BAILEE 139 to the owner in its condition at the time it perishes. Neither par- ty is here liable to the other, because the bailment contract cannot be completely carried out. As before, the bailee can recover nothing, when by an entire contract he has stipulated that he shall receive no compensation whatever unless he has completely performed; but courts hesitate thus to construe the contract. 84 Same — Fault of Bailor Preventing Completion of Work When the completion of the work is prevented by the bailor's wrong, the question of compensation should present no complica- tions. The suit is brought by the bailee, in no way at fault, under an unfinished bailment upon which he is ready and willing to proceed, but is prevented from doing so by the fault of the bailor. The law in such case endeavors to make the bailee whole again. This is done by allowing the bailee to recover from the bailor, not only the reasonable worth of the services already performed, but also full damages for all the loss that he has suffered as the result of the bailor's wrongful breach of the bailment contract. 35 The bailee is thus placed in practically the same position as that which he would have occupied had he been permitted to complete the bailment. He is paid for the work already done, and receives also the profits he would have earned had he been permitted to com- plete the bailment. Same — Fault of Bailee in Abandoning the Work While Incomplete The principles laid down by the courts in this situation are many, varied, and utterly irreconcilable. The conflict is in a way an outgrowth of. the widespread controversy which has raged around the great case of BRITTON v. TURNER, 86 involving the the labor is incorporated. If the work has been performed in such a way as to afford a defense to the employer against a demand for the price, if the accident had not happened (as, if it was defectively or improperly done), the same defense will be equally available to him after the loss. 1 Bell, Comm. p. 456. a* Story, Bailm. § 426; Brumby v. Smith, 3 Ala. 123; Appleby v. Myers, L. R. 2 C. P. 651, 656. Though generally, where, while work is doing on a thing belonging to an employer, the thing perishes by internal defect or in- evitable accident without the workman's fault, he is entitled to compensation for the work actually done, where plaintiff worked on defendants' material under an agreement that defendants would pay therefor only after delivery in good order at their store, he may not recover for work done on material destroyed on his premises, though he is blameless for the loss. Stern v. Rosenthal, 56 Misc. Hep. 643, 107 N. X Supp. 772. *5 See Story, Bailm. § 441; Schouler, Bailm. § 111. so 6 N. H. 481, 26 Am. Dec. 713, and note, Dobie Cas. Bailments and Car- 140 BAILMENTS POE MUTUAL BENEFITS HIRED SERVICES (Ch. 6 general right of one to recover on a contract which he has not fully performed. That there can be no recovery on the contract itself is generally conceded, but the battle of the cases rages around the right of a recovery on a quantum meruit for the worth of the services actually performed. Even when such a recovery is grant- ed, the Other party is always allowed to diminish the recovery by any damages that he has suffered, flowing from the breach. The particular question with which we are concerned, and about which there is such direct conflict, is this : When a bailment is not com- pleted, owing to the fault of the bailee, can the bailee recover the excess of the reasonable value of his services performed. over the damage caused to the bailor by the bailee's failure to complete the bailment? 87 Some courts answer generally in the affirma- tive; s8 others give a negative reply and refuse the bailee any riers, 88. See, also, Cutter v. Powell, 6 Term R. (Eng.) 320, 3 R. R. 185, and a collection of the cases, involving the entirety of contracts based on Cutter v. Powell, in 2 Hughes on Procedure, «92. In Cutter v. Powell, how- ever, as opposed to BRITTON v. TURNER, the contract was not broken by the party, but he died leaving it unperformed in part. In BRITTON v. TURNER, a laborer who agreed to work a specified time for an extra sum abandoned the contract after working a part of the time. He was permitted to recover on a quantum meruit the value of his services in excess of the damage caused to his employer by such breach of contract. The doctrine of this great case is believed to be sound. , 87 Neither BRITTON v. TURNER, supra, nor Cutter v. Powell, supra, involved a bailment. Indeed, most of the cases cited are contracts of service, and not bailments at all. The analogy is a good one, however, and the right of the party breaking the contract to recover is governed by the same principles, whether or not a technical bailment be created. 88 See BRITTON v. TURNER, supra; Larkin v. Buck, 11 Ohio St. 568; McClay v. Hedge, 18 Iowa, 66; Hillyard v. Crabtree's Adm'r, 11 Tex. 264, 62 Am. Dec. 475; McDonough v. Evans Marble Co., 112 Fed. 634, 50 C. C. A. 403 (this case speaks of the doctrine permitting a recovery as "the more modern rule"); Duncan v. Baker, 21 Kan. 99; Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222 ; .Watson v. Kirby, 112 Ala. 436, 20 South. 624. These are cases of contracts of service, not bailments. Mr. Parsons, in his great work on Contracts (volume 2 [6th Ed.] 38, 39), thus approves the rule of BRITTON v. TURNER: "BRITTON v. TURNER permits the servant to recover on a quantum meruit. His right to recover is carefully guarded in this case by principles which seem to protect the master from all wrong. * * * So guarded, it might seem that the principles of this case are better adapted to do adequate justice to both parties and wrong to neither than those of the numerous cases which rest upon the somewhat technical rule of the entirety of the contract." Mr. Page, however (3 Page, Cont. § 1604), after discussing the cases following BRITTON v. TURNER, remarks: "In studying the prin- ciples here discussed, as enforced by the courts, one is sometimes driven to inquire whether a special contract means anything." § 62) COMPENSATION OF THE BAILEES 141 recovery ; •• others give a qualified answer, 40 holding that it de- pends on whether the bailment contract is a general or special one, or whether the abandonment of the bailee was or was not will- ful or malicious, and so on. Thus some of the older cases hold that the bailee must here stand rigidly by the contract, and that, when he is in fault in not completing it, he should not be permitted to recover." This rule was applied, even though a great part of the work had been com- pleted, conferring a substantial benefit on the bailor, who was thereby gratuitously enriched. This doctrine, emphasizing the technical unity and entirety of contracts, is too extreme for a large majority of the modern courts. Other courts, modifying the severity of this rule, have per- mitted the bailee to recover on the quantum meruit when the con- tract is a general one of hiring, but have refused such a recov- ery when the contract is a special one, explicitly stating the way the bailment services are to be performed and agreeing on a speci- fied price. 42 It has been . a generally held technical rule that, so Olmstead v. Beale, 19 Pick. (Mass.) 528; Forman v. The Leddesdale, [1900] App. Cas. '(Eng.) 190; Hansbrough v. Peck, 5 Wall. 49T, 18 L. Ed. 520; Scheible 7. Klein, 89 Mich. 376, 50 N. W. 857; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L. R. A. 52; Van Clief v. Van Vechten, 130 N. Y. 571, 20 N. E. 1017 ; Harris v. Sharpies, 202 Pa. 243, 51 Atl. 965, 58 L. R. A. 214 ; Vicksburg Water Supply Co. v. Gorman, 70 Miss. 360, 11 South. 680. See 3 Page, Contracts, § 1603. io STEEPLES v. NEWTON, 7 Or. 110, 33 Am. Rep. 705, Dobie Cas. Bail- ments and Carriers, 91; Dermott v. Jones, 2 Wall. 1, 17 D. Ed. 762; Id., 23 How. 220, 16 L. Ed. 442 ; Barrett v. Raleigh Coal & Coke Co., 51 W. Va. 416, 41 S. E. 220, 90 Am. St Rep. 802; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437, 43 L. R. A. 810, 72 Am. St. Rep. 865. See 3 Page on Cont. § 1602; Ellis v. Hamlen, 3 Taunt. (Eng.) 53; McMillan v. Vanderlip, 12 Johns. (N. T.) 165, 7 Am. Dec. 299. 4i Cutter v. Powell, 6 Term R. (Eng.) 320, 2 Smith, Lead. Cas. 1212, is the extreme case, in which a seaman died before completing the voyage and time contracted for. It was held that his personal representatives could recover nothing. Such cases, however, are now rare. *2 Farnsworth v. Garrard, 1 Camp. (Eng.) 38; Basten v. Butter, 7 East (Eng:) 479; Cutler v. Close, 5 Car. & P. (Eng.) 337; Thornton v. Place, 1 Moody & R. (Eng.) 218; Grant v. Button, 14 Johns. (N. Y.) 377; Ellis v. Hamlen, 3 Taunt. (Eng.) 53; Cousins v. Paddon, 2 Cromp., Mees. & R. (Eng.) 547; Burn v. Miller, 4 Taunt. (Eng.) 745, 747; Taft v. Inhabitants of Mon- tague, 14 Mass. 282, 7 Am. Dec. 215; Jewell v. Schroeppel, 4 Cow. (N. Y.) 564; Sickels v. Pattison, 14 Wend. (N. Y.) 257, 28 Am. Dec. 527; Sinclair v. Bowles, 9 Barn. & C. (Eng.) 92; Clark v. Smith, 14 Johns. (N. Y.) 326; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 317; Jennings v. Camp. 13 Johns. (N. Y.) 94, 7 Am. Dec. 367; Faxon v. Mansfield, 2 Mass. 147 ; McMillan v. Vanderlip, 12 Johns. (N. Y.) 165, 7 Am. Dec 299; Champlip v. Butler, 18 Johns. (N. Y.) 169. 142 BAILMENTS FOE MUTUAL BENEFIT HIRED SEBVICES (Ch. 6 when a special contract is open and subsisting, one cannot recover on an implied contract, unless he can show an excuse for his de- parture from such special contract. When the bailee's recovery is based upon considerations of whether or not his abandonment was voluntary, or willful or ma- licious, this substitutes a criterion of morality and public policy for contractual technicality." Courts denying a recovery when the abandonment was willful hold that it contravenes sound morality to permit a person to obtain any recovery for work done under a contract which he has voluntarily abandoned with no ex- cuse for such conduct. 44 It is submitted, though the weight of authority seems now against it, that the question propounded should be answered in the affirmative, without any of the qualifications mentioned. The ground of the bailee's recovery is not based upon, but is rather in spite of, the specific contract. He recovers for a benefit conferred on the bailor's goods, a step in line toward the realization of what the bailor desired, on the principle that the bailor should not be permitted to enjoy such benefit without paying therefor its rea- sonable worth, and that therefore the law implies that he will make a reasonable compensation therefor. The broken -contract does not help the bailee to recover, but retards his recovery. The bailee seeks no benefit from his contractual breach, but such breach im- poses on him the burden for all loss thereby occasioned. Again, the fullest remedy is given to the bailor for the wrong done to him, for he is credited with all his loss flowing from the wrong; he is awarded full compensatory damages. Beyond this, the law goes only in very few cases. Should the law, then, for the bailee's breach, gratuitously enrich the bailor, and punish the bailee by causing him to forfeit the value of all his work, labor, and ma- terials? It is believed that it should not. Finally, it should be noted that the parties may stipulate clearly, in express terms, that the bailee is to receive no compensation unless he completely performs the bailment contract. Under such an agreement, the bailee, to whose fault is due the failure to ** Barrett v. Raleigh Coal & Coke Co., 51 W. Va. 416, 41 S. E. 220, 90 Am. St Rep. 802 ; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437, 43 L. R, A. 810, 72 Am. St. Rep. 865; STEEPLES v. NEWTON, 7 Or. 110, 33 Am. Rep. 705, Dobie Cas. Bailments and Carriers, 91; Gallagher v. Sharpless, 134 Pa. 134, 19 Atl. 491; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Homer v. Shaw, 177 Mass. 1, 58 N. E. 160; Posey v. Garth, 7 Mo. 94, 37 Am. Dec. 183. "Hogan v. Titlow, 14 Cal. 255; Kohn v. Fandel, 29 Minn. 470, 13 N. W. 004; Hartman v. Meighan, 171 Pa. 46, 33 Atl. 123; Fairfax Forrest Min. & Mfg. Co. v. Chambers, 75 Md. 604, 23 Atl. 1024 ; Bonesteel v. Mayor, etc., of City of New York, 22 N. Y. 162 ; Thrift t. Payne, 71 111. 408. § 64) THE LIEN OF THE BAILEE ON THE BAILED CHATTELS 143 complete the bailment, could recover nothing. The bailee, having made such a contract with full knowledge, could not complain ; nor does such an agreement contravene a sound public policy. This would afford the bailor a desired method of securing himself against any abandonment of the bailment before it had been perfectly performed. EXPENSES OF THE BAILMENT 63. The bailee must bear the expenses ordinarily incident to the execution of the bailment. Extraordinary expenses fall on the bailor. The rules here are in their practical application similar to those obtaining in locatio rei, or the hired use of chattels. In bailment for hired services, it is a fair prima facie presumption that the parties intended the expenses ordinarily incidental to the execution of the bailment contract to be borne by the bailee, who is presumed to have fixed his compensation high enough to cover these expenses.* 6 This presumption, though, would hardly apply in the case of extraordinary expenses incurred reasonably in some unforeseen or extreme emergency, particularly when made for the preserva- tion of the bailed goods. These expenses, when not due to the bailee's fault, should be borne by the bailor. 49 THE LIEN OF THE BAILEE ON THE BAILED CHATTELS 64. The bailee performing services about a chattel has a lien on such chattel to secure the payment of his proper compen- sation. Lien It may safely be laid down as a general rule that every bailee for hire who performs services about the goods of another has a lien on such goods to secure his proper compensation, and he can « Story, Ballm. §§ 425, 426, 441; Schouler, Bailm. (2d Ed.) § 114; 2 Kent, Comm. 590; Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73; Menetone v. Athawes, 3 Burrows (Eng.) 1592. *« Schouler, Bailm. (2d Ed.) § 114 ; Story, Bailm. § 426c. If it reasonably can be done, it would seem that the bailee should secure the sanction of the bailor to such expenditure. See Small v. Robinson, 69 Me. 425, 31 Am. Hep. 299. The expenditure must be a proper one in any case to be recoverable ty the bailee. See Enos v. Cole, 53 Wis. 235, 10 N. W. 377. 144 BAILMENTS FOR MUTUAL BENEFIT HIRED SERVICES (Ch. 6 hold the goods until this compensation is paid.* 7 Of common-law Hens, this is, from the viewpoint of commercial policy, among the most important, as it is, from the standpoint of historical jurispru- dence, among the most interesting. The right of lien at common law seems originally to have been confined to those persons who, from the nature of their occupation, were under a legal obligation to receive the goods of others. 48 Such, for example, were common carriers and innkeepers. This doctrine was next extended to include cases in which the chattel had acquired additional value by the labor and skill of an artisan. 49 By further extensions it has come to include practically every case in which a bailee for hire performs services about the chattel. 50 *t Hensel v. Noble, 95 Pa. 345, 40 Am. Rep. 659; Pine Bluff Iron Works v. Eoling & Bro., 75 Ark. 469, 88 S. W. 306; Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N. W. 966, 40 L. R. A. 761, 69 Am. St. Rep. 719 ; Holder- man v. Manier, 104 Ind. 118, 3 N. E. 811; Caroway v. Cochran, 71 W. Va. 698,. 77 S. B. 278; Pacific Aviation Co. v. Wells Fargo & Co., 64 Or. 530, 128 Pac'438; Bass v. Tipton, 1 Minn. 408 (Gil. 292); Low v. Martin, 18 111. 286; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93. Wharfingers: Brookman v. Hamill, 43 N. Y. 554, 3 Am. Rep. 731 ; Ex parte Lewis, 2 Gall. 483, Fed. Cas. No. 8,310; Holderness v. Collinson, 7 Barn. & C. (Eng.) 212; Lenckhart v. Cooper, 3 Bing. N. C. (Eng.) 99; Dresser v. Bosanquet, 4 Best & S. (Eng.) 460. See Cowper v. Andrews, Hob. (Eng.) 39, 41a; Case of an Hostler, YeL (Eng.) 67. And see the learned and valuable note of Mr. Justice Metcalf to this case, in his edition of Yelverton (page 67a), and the authorities therein collected and commented upon ; Green v. Farmer, 4 Burrows (Eng.) 2214; Close v. Waterhouse, 6 East (Eng.) 523, note 2; 2 Kent, Comm. (5th Ed.) 635; Grin- nell v. Cook, 3 Hill (N. Y.) 485, 491, 38 Am. Dec. 663; Oakes v. Moore, 24 Me. 214, 41 Am. Dec. 379; WILSON v. MARTIN, 40 N. H 88, Dobie Cas. Bailments and Carriers, 85. "Whenever a party has expended labor and skill in the improvement of a chattel bailed to him, he has a lien upon it" Bevan v. Waters, Moody & M. (Eng.) 235; Scarfe v. Morgan, 4 Mees. & W. (Eng.) 270, 278; Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658; Morgan v. Congdon, 4 N. Y. 552; Mathias v. Sellers, 86 Pa. 486; Farringtbn v. Meek, 30 Mo. 578, 77 Am. Dec. 627 ; Mclntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am. Dec. 519. is WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Car- riers, 85. *» See the following English cases: Jackson v. Cummins, 5 Mees. & W. 342, 348; Scarfe v. Morgan, 4 Mees. & W. 270; Bevan v. Waters, Moody & W\ 235; Id., 3 Car. & P. 520; Forth v. Simpson, 13 Q. B. 680. See, also, Story, Bailm. (9th Ed.) § 453a; Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93; 1 Jones, Liens (2d Ed.) § 742; Morgan v. Congdon, 4 N. Y. 552; King v. Humphreys, 10 Pa. 217; Eaton v. Lynde, 15 Mass. 242; BURDICT v. MURRAY, 3 Vt 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84. f °° See cases cited in note 47. § 64) THE LIEN OF THE! BAILEE ON THE BAILED CHATTELS 145 This steady increase in the favor with which the bailee's lien has met, as shown in "the struggle of the judicial mind to escape from the confines of the earlier precedents," " has necessarily re- sulted in some lack of harmony between the earlier and the later decisions. The truth is that the common-law lien of the bailee is a creature of policy, justified by its own inherent justice and expediency. 62 The lien of the bailee was regarded with high favor by Lord Kenyon BS and Chief Justice Best B * among the earlier judges, and modern judges have been active in recognizing the equitable and commercial considerations upon which the lien is based. Agisters and Livery Stable Keepers By the great weight of authority this common-law lien was de- nied to livery stable keepers 66 and also to agisters, 56 or those who make a business of taking cattle to be fed or pastured. For these exceptions, though, no entirely satisfactory reason has ever been given. One theory is that the lien exists only when the chattel has been enhanced in value by the skill and labor of the bailee. 67 Other bailees, such as the warehouseman, 68 have a lien, however, whose labors add nothing to the value of the chattel. Nor can it strictly be said that the agister who fattens cattle for the market adds nothing to their value. . Another reason, and a more serious one, has been urged to explain why there can be no common-law lien here. 69 A bailee has a lien on goods only so long as he re- bi Gilson, C. X, In STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 467 r 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93. 6 2 Schouler, Bailm. (2d Ed.) § 126; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas! Bailments and Carriers, 93. is See Kirkman v. Shawcross, 6 Term K. (Eng.) 14, 17. o* See Jacobs v. Latard, 5 Bing. (Eng.) 130, 132. " Jackson v. Cummins, 5 Mees. & W. (Eng.) 350; Parsons v. Gingell, 4 C. B. (Eng.) 545; Smith v. Dearlore, 6 C. B. (Eng.) 132; Miller v. Marston, 3& Me. 153, 56 Am. Dec. 694; Wallace v. Woodgate, 1 Car. & P. (Eng.) 575; Hickman v. Thomas, 16 Ala. 666; McDonald v. Bennett, 45 Iowa, 456; Mauney v. Ingram, 78 N. C. 96; Judson v. Etheridge, 1 Cromp. & M. (Eng.) 742. o«Grinnell v. Cook,. 3 Hill (N. Y.) 485, 491, 38 Am. Dec. 663; Goodrich v. Willard, 7 Gray (Mass.) 183; Miller v. Marston, 35 Me. 153, 56 Am. Dec. 694 ; Lewis v. Tyler, 23 Oal. 364; Wills v. Barrister, 36 Vt 220; Millikin v. Jones,. 77 111. 372; Allen v. Ham, 63 Me. 532 (by statute); Chapman v^ Allen, Cro. Car. (Eng.) 2J4; — ' ~ ' "~ 6' Story, ^Jailm. 453a; Scarf e v. Morgan, 1 Mees. & W. (Eng.) 270; Jack- son v. Cummins, 5 Mees. "& ~M7~(Eng.) 342; Grinnell v. Cook, 3 Hill (N. ¥.> 485, 491, 38 Am. Dec. 663. 68 Post, p. 164. 6»Grinnell v. Cook, 3,) Hill (N. T.) 485, 38 Am. Dec. 663; Bevan v. Waters^ 3 Car. & P. (Eng.) 520, 522; Jones v. Thurloe, 8 Mod. (Eng.) 172; Jones v_ Dob.Bailm. — 10 146 BAILMENTS FOR MUTUAL BENEFIT HIRED SERVICES (Ch. 6 tains uninterrupted possession. When horses are kept" at a livery stable, the owner takes and uses them at pleasure. As to the agister, in the-case of milch cows, the owner has occasional posses- sion for the purpose of milking them. Either the agister or the livery stable keeper could, of course, secure a lien by special con- tract. 60 Very generally now the agister and livery stable keeper have liens by statute. It may therefore be stated as a well-established rule that the modern bailee, performing services about a chattel, has a lien thereon for his compensation, regardless of the nature of the services. Consent of the Owner Inasmuch as the lien of a bailee arises from his employment to render the services, it follows that the employment must be by the owner, whose goods are to be affected by the lien, or by his consent, express or implied. 81 Thus a thief could not, by giving a stolen watch to a watchmaker for repairs, create a valid lien on the watch against the owner in favor of the watchmaker. It must not, however, be inferred that the consent of the owner to such a bailment must in all cases be given under such circum- stances or in such a manner as would create a personal liability on his part to pay the charges of the bailee. When the goods are improved and enhanced in value by the workman's labor, author- ity to have it done on the footing of a workman's lien may well be implied from circumstances which would not raise an implica- tion of a contract on the owner's part to pay the workman's charges. Accordingly the bailee may sometimes, in somewhat anomalous Pearle, 1 Strange (Eng.) 556; Sweet v. Pym, 1 East (Eng.) 4; Jackson v. Cummins, 5 Mees. & W. (Eng.) 342, 350; Cross, Liens, 25, 36, 332. eo See cases cited in notes 53-57. «i 1 Jones, Liens, § 733 ; Clark v. Hale, 34 Conn. 398; White v. Smith, 44 N. J. Law, 105, 43 Am. Rep. 347; Hill v. Burgess, 37 S. C. 604, 15 S. E. 963. Cf. Mclntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am. Dec. 519. The bailee cannot assert his lien against the true owner of the goods who has never consented to such bailment. Small v. Robinson, 69 Me. 425, 31 Am. Rep. 299; Globe Works v. Wright, 106 Mass. 207; Gilson v. Gwinn, 107 Mass. 126, 9 Am. Rep. 13 ; Hollingsworth v. Dow, 19 Pick. (Mass.) 228 ; Robinson v. Baker, 5 Cush. (Mass.) 137, 51 Am. Dec. 54; Lloyd v. Kilpatrick, 71 Misc. Rep. 19, 127 N. Y. Supp. 1096; Johnson v. Hill, 3 Starkie (Eng.) 172; Sargent v. Usher, 55 N. H. 287, 20 Am. Rep. 208; Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61. Thus a coach maker to whom a carriage had been delivered for repairs by the owner's servant was denied a lien where the carriage had been broken by the negligence of the servant, without the knowledge of the master, and had been taken by the servant to the coach maker for re- pairs, without any orders from his master. Hiscox v. Greenwood, 4 Esp. (Eng.) 174. § 64) THE LIEN OP THE BAILEE ON THE BAILED CHATTELS 147 cases, have a lien on the goods for his services, though he yet may be unable to recover from the owner of the goods the compensation which the lien secures. So, without an in personam claim against the owner, the bailee may have a valid in rem claim against the owner's goods. Thus, where a wife allowed her husband to use her wagon, and he delivered the wagon for certain necessary repairs to a wheelwright, who charged them to the husband, supposing the wagon to be his, it was held that the wheelwright had a lien on the wagon for his charges, as against the wife. 88 Subcontractors or Servants of the Bailee ' The lien is strictly personal to the bailee, who has contracted with the owner to perform the services. It does not attach in favor of a workman who is hired by the original bailee to do the work. In such case both the possession and lien are in the master or contractor. 63 Subcontractors have no lien, because there is no privity between them and the owner. 01 So far as the bailee's own lien is concerned, therefore, it is immaterial whether he perform the work personally or (as he has the right in a proper case) through agents or servants. 65 It is not an essential element of the bailee's lien that he perform the services himself. Priority of Lien The question of the priority of the bailee's lien over other liens, both prior and subsequent to it in time, on the same goods, is of no little practical importance. As to subsequent liens, it is clear that, once the bailee's lien has validly attached, the bailor cannot create any incumbrances thereafter which will take precedence over the bailee. His lien is good against the world, and no later act of the bailor can postpone it to the claims of third persons. 66 As a general rule the bailee's lien must yield to mortgages or other valid incum- brances created by the bailor before the commencement of the bailment. 67 The mortgage, for example, when no estoppel or con- «2 White v. Smith, 44 N. J. Law, 105, 43 Am. Rep. 347. ssGluckman v. Kleiman, 3 Misc. Rep. 97, 22 N. Y. Supp. 549; Wright v. Terry, 23 Fla. 160, 2 South. 6; Quillian v. Central Railroad & Banking Co.. 52 Ga. 374. And see White v. Smith, 44 N. J. Law, 105, 43 Am. Rep. 347. »* Meyers v. Bratespiece, 174 Pa. 119, 34 Atl. 551; Jacobs v. Knapp, 50 N. H. 71; Gross v. Eiden, 53 Wis. 543, 11 N. W. 9; 1 Jones, Liens, § 721. oo Jones, Liens, § 738; Hall v. Tittabawassee Boom Co., 51 Mich. 377, 16 N. W. 770; Webber v. Cogswell, 2 Can. Sup. Ct. 15. e« See, on liens in general, Rankin v. Scott, 12 Wheat. 177, 6 L. Ed. 592; Weinprender v. His Creditors, 5 La. 349; Parker v. Kelly, 10 Smedes & M. (Miss.) 184; Puryear v. Taylor, 12 Grat. (Va.) 401. «7 a recorded chattel mortgage on a horse is superior to a subsequent lien of a livery stable keeper, acquired under Mill. & V. Code Tenn. § 2760, where the horse is placed in the stable after the making of the mortgage, without 148 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Ch. 6 sent is invoked against the mortgagee and no questions of recorda- tion appear, ordinarily takes precedence over subsequent claims. As a rule, the bailee's lien attaches to the goods in their incum- bered condition at the time the bailment is created. The bail- ment of a mortgaged chattel gives rise to a lien on a mortgaged chattel, unless the mortgagee expressly or impliedly, 68 yields his precedence. There are exceptional cases, however, when the lien of a prior mortgage must yield to the lien of the bailee. These are cases in which the mortgagor, in possession of the chattel, delivers it to the bailee for repairs that are necessary to preserve it and to keep up its efficiency as a means of enabling the mortgagor to pay off the mortgage debt. The bailment, in thus adding to the value of the mortgaged chattel, and increasing its earning power, is there- fore manifestly to the advantage of the mortgagee. It is accord- ingly held that the necessities, of the case authorize the mortgagor in possession to create such a bailment, rendering himself alone liable for the bailee's compensation in personam, but rendering the mortgaged chattel liable in rem. Thus, when a mortgaged canal boat foundered, the mortgagor took the boat to a shipwright for repairs, without which the boat could not have been used and would have been almost useless as security for the mortgage debt. It was held that the shipwright's lien on the boat was valid and took priority over the mortgage, 69 the knowledge of the mortgagee, though the stable keeper had no notice In fact of the mortgage. McGhee v. Edwards, 87 Tenn. 506, 11 S. W. 316, 3 L. R. A. 654. See, also, Bissell v. Pearce, 28 N. Y. 252, in which the prior mortgage took precedence over the bailee's lien arising out of special con- tract. See, further, Denison v. Shuler, 47 Mich. 598, 11 N. W. 402, 41 Am. Rep. 734; Baumann v. Post, 16 Daly, 385, 12 N. Y. Supp. 213; Pickett v. McCord, 62 Mo. App. 467 ; Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61. «8 The mortgagee's authority for the creation of a lien may be implied from the mortgagor's being allowed to remain in possession of the chattel and to use it for profit. Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St Rep. 615; Hammond v. Danielson, 126 Mass. 294; Loss v. Fry, 1 City Ct. R. (N. Y.) 7; Beall v. White, 94 U. S. 382, 24 L. Ed. 173; Scott v. Delahunt, 5 Lans. (N. Y.) 372 ; Id., 65 N. Y. 128. •69 Scott v. Delahunt, 65 N. Y. 128. In the leading case on this subject Williams v. Allsup, 10 O. B. N. S. (Eng.) 417, the shipwright's lien for re- pairs was permitted to take precedence over the Hen of the prior mortgage. In that case Erie, O. J., used this language: "I put my decision on the ground that, the mortgagee having allowed the mortgagor to continue in the apparent ownership of the vessel, making it a source of profit, and a means of earning wherewithal to pay off the mortgage debt, the relation so created by implication entitles the mortgagor to do all that may be nec- essary to keep her in an efficient state for that purpose. The case states % 64) THE LIEN OF THE BAILEE ON THE BAILED CHATTELS 149 Bailee's Lien is Usually a Special Lien, Not a General Lien The bailee's lien for services about chattels is ordinarily a special lien, 70 and not a general one. By a special lien is meant that it secures only the debt created by services about the specific goods upon which the lien is claimed. Such a lien does not cover debts for services on other goods besid§M»Dse held under the lien. Such special lien, however, extendsl^Pvery portion of the goods delivered under one contract. 71 The whole lien extends to each and every part of the goods subject. to it. If not discharged or waived, it remains attached to any part of the goods remaining in the possession of the bailee. A delivery of part of the goods does not discharge the lien either wholly or even pro tanto. Such a delivery, unless it clearly appears that the intention of ,the parties was otherwise, releases from the operation of the lien only the part delivered. Accordingly, the goods remaining in the bailee's possession are charged with the burden of the whole lien." Where there is an entire contract for repairing several articles for a gross sum, even though these articles are delivered at dif- ferent times, the artisan has a lien on each of the articles in his that the vessel had been condemned as unseaworthy by the government sur- veyor, and so was in a condition to be utterly unable to earn freight, or be an available security or any source Of profit at all. Under these circum- stances, the mortgagor did that which was obviously for the advantage of all parties interested; he puts her into the hands of the defendant to be re- paired; and, according to all ordinary usage, the defendant ought to have a right of lien on the ship, so that those who are interested in the ship, and who will be benefited by the repairs, should not be allowed to take her out Of his hands without paying for them." See, also, in that case, the opinions of Willes and Byles, JJ. See, also, opinion of Gray, C. J., in Hammond v. Danielson, 126 Mass, 294, applying the doctrine of Williams v. Allsup, to a hack. ■"> Honig v. Knipe, 25 Mo. App. 574; Miller v. Marston, 35 Me. 153, 155, 56 Am. Dec. 694; Mathias v. Sellers, 86 Pa. 486, 27 Am. Rep. 723; Moulton v. Greene, 10 E. I. 330; Nevap v. Roup, 8 Iowa, 207; Rushforth v. Hadfield, 6 East (Eng.) 519; Green v. Farmer, 4 Burrows (Eng.) 2214. CEarge for keep- ing goods held to preserve a lien cannot be added to the sum for which a lien is claimed. Somes v. British Empire Shipping Co., 8 H. L. Gas. (Eng.) 338; Lord v. Collins, 76 Me. 443. See, also, Harley v. Bpps, 69 Ga. 611 ; Mclntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am. Dec. 519. 71 When the contract and the work are entire, the lien extends to each part, and may be enforced to the extent of the entire price upon any portion remaining in the possession of the bailee after a partial delivery. Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Morgan v. Congdon, 4 N. Y. 552; Hensel v. Noble, 95 Pa. 345, 40 Am. Rep. 659; STBINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Car- riers, 93; Myers v. Uptegrove, 3 How. Prac. N. S. (N. Y.) 316. '2 New Haven & Northampton -Co. v. Campbell, 128 Mass. 104, 35 Am. Rep. 360. 150 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Ch. & possession for such amount as he may be entitled for services be- stowed on any or all of the articles embraced in the contract. 71 Nor will a payment of part of the contract price release a part of the goods from the lien ; but the bailee may retain all the goods until the entire debt is pai d._, A general lien, as oppg4|fcp a special lien, is the right to hold goods as security for alpil balance arising from a series of transactions either in the same line of business or of the same nature. 74 Unlike the special lien, the general lien is not highly favored by the law. 75 The lien of the bailee is therefore a special one, unless a general lien is given by special contract or by well- defined custom and common usage. 78 Wharfingers and factors are among the bailees to whom long-established usage has given such a general lien. 77 This does not mean that the factor, for example, could retain goods of his principal for all debts due to him by the principal; but the factor's general lien gives him the right to hold the goods in his possession as factor only as security for the general balance due him from a series of contracts of fac- torage similar t<8i,the contract under which he. secured possession of the goods to which his general lien attaches. 78 "Hensel v. Nohle, 95 Pa. 345, 40 Am. Eep. 659; Blake v. jWckol§eB>_JL Maule & -S—lffiL; .Partridge v. Dartmouth College, 5 If H. 286; McFarland v. Wheeler, 26 Wend. (N. Y.) 467; Lane v. 0}d Colony & F. R. R. Co., 14 GTay (Mass.) 143 ; Chase v. Westmore, 5 Maule & S. (Eng.) 180; Myers v. Upte- grove, 3 How. Prac. N. S. (N. Y.) 316 ; Moulton v. Greene, 10 R. I. 330; Bug- gies v. Walker! 34 Vt. 468; STBINMAN v. WILKINS, 7" Watts & S. (Pa.) '466, 42 Am. Dec. 254, Dottle Cas. Bailments and Carriers, 93. ™ See Black, La* Diet. (2d Ed.) p. 726. ™ McKenzie v.-'Nevlus, 22 Me. 150, 38 Am. Dec. 291; Brooks v. Bryce, 21 Wend. (N. Y.) 16. 76 Schouler, Bailm. (2d Ed.) § 122; 2 Kent, Comm. 634; Story, Ag. § 355; Jarvis v. Rogers, 15 Mass. 389. As to what constitutes a contract for a gen- eral lien on the part of a bailee, see Firth v. Hamill, 167 Pa. 382, 31 Atl. 676. The fact that plaintiff had not paid for suits which a tailor made for Mm did not give the tailor a lien upon other suits which plaintiff delivered to him to be pressed. Owcharoffsky v. Lambert (Sup.) 135 N. Y. Supp. 599. 77 It is also said that calico printers, fullers, packers, and also bankers and insurance brokers, have general liens by custom and usage. See 3 Wait, Act. & Def. 301; 4 Wait, Act. & Def. 319, 320; 7 Wait, Act & Def. 215; Hanna v. Phelps, 7 Ind. 21, 63 Am. Dec. 410; Tucker v. Taylor, 53 Ind. 93; Mooney v. Musser, 45 Ind. 115 ; East v. Ferguson, 59 Ind. 169 ; Shaw v. Ferguson, 78 Ind. 547; Bunnell v. Davisson, 85 Ind. 557; Spears v. Hartly, 3 Esp. (Eng.) 81. And see Weldon v. Gould, 3 Esp. (Eng.) 268; Savill v. Barchard, 4 Esp. (Eng.) 53; Naylor v. Mangles, 1 Esp. (Eng.) 109; Rushforth v. Hadfield, 6 East (Eng.) 519; Id., 7 East (Eng.) 224; Moet v. Pickering, 8 Ch. Div. (Eng.) 372. 7 8 As to the limitations of general liens, see Story, Ag. § 379; Spring v. South Carolina Ins. Co.. 8 Wheat. 268, 5 L. Ed. 614; McKenzie v. Nevhis, § 64) THE LIEN OF THE BAILEE ON THE BAILED CHATTELS 151 Waiver and Termination of the Lien The bailee 'never has a lien when it is dispensed with by the special contract, and no lien arises when it is obvious that none was intended by the parties. 79 This may result from a contract expressly stipulating that there should be no lien, or from a bail- ment contract clearly inconsistent with the existence of the lien; as, for example, where payment was to be made in medical serv- ices as they were needed by the bailee, 80 or where a term of credit was provided for, 81 thus postponing payment after the completion of the bailment. Where a valid lien actually arises, the bailee may lose it by a waiver thereof, just as he may voluntarily relinquish his other rights. Such a waiver may be express, or it may be established by evidence showing any acts or conduct of the bailee incon- 22 Me. 138, 38 Am. Dec. 291; Olive v. Smith, 5 Taunt. (Eng.) 57; Castling v. Aubert, 2 East (Eng.) 325. " WILES LAUNDRY CO. v. HAHLO, 105 N. T. 234, 11 N. E. 500, 59 Am. Rep. 496, Dobie Cas. Bailments and Carriers, 95; Rollins v. Sidney B. Bow- man Cycle Co., 96 App. Div. 365, 89 N. Y. Supp. 289"; Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441, 31 Am. Dec. 198; Trust v. Pirsson, 1 Hilt. (N. Y.) 292 ; Bailey v. Adams, 14 Wend. (N. Y.) 201 ; Murphy v. Lippe, 35 N. Y. Super. Ct. 542 ; Mount v. Williams, 11 Wend. (N. Y.) 77. Insolvency of bailor will not revive lien when it has been waived by special agreement. Pieldings v. Mills, 2 Bosw. (N. Y.) 489. Where credit may be claimed by custom, no lien arises. Raitt v. Mitchell, 4 Camp. (Eng.) 146; Crawshay v. Homfray, 4 Barn. & Aid. (Eng.) 50. If the inconsistent agreement is ante- cedent to the possession, no lien is created. If it is made afterwards, the lieu is waived. 1 Jones, Liens, § 1002; Raitt v. Mitchell, 4 Camp. (Eng.) 146, 149; Crawshay v. Homfray, 4 Barn. & Aid. (Eng.) 50; Bailey v. Adams, 14 Wend. (N. Y.) 201 ; Dunham v. Pettee, 1 Daly (N. Y.) 112; Trust v. Pirsson, 1 Hilt. (N. Y.) 292; Chandler v. Belden, 18 Johns. (N. Y.) 157, 9 Am. Dec. 193; BTJRDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bail- ments and Carriers, 84; Pinney v. Wells, 10 Conn. 104; Darlington v. Cham- berlain, 20 111. App. 443; Lee v. Gould, 47 Pa. 398; Pulis v. Sanborn, 52 Pa. 368. But it must affirmatively appear that thelien is dispensed with. Where the contract is silent on the subject, the law confers a lien. Hazard v. Man- ning, 8 Hun (N. Y.) 613. so Morrill v. Merrill, 64 N. H. 71, 6 Atl. 602. si Hale v. Barrett, 26 111. 195, 79 Am. Dec. 367; Robinson v. Larrabee, 63 Me. 116; Tucker v. Taylor, 53 Ind. 93; McMaster v. Merrick, 41 Mich. 505, 2 N. W. 895; Dunham v. Pettee, 1 Daly (N. Y.) 112. "The operation of a lien is to place the property in pledge for the payment of the debt; and where the party agrees to give time for payment, or agrees to receive payment in a particular mode, inconsistent with the existence of such a pledge, it is evidence, if nothing appears to the contrary, that he did not intend to rely upon the pledge of the goods, in relation to which the debt arose, to secure the payment." Per Parker, J., in Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441, 31 Am. Dec. 198. See, also, Fielding v. Mills, 2 Bosw. (N. Y.) 489. 1.52 BAILMENTS FOE MUTUAL BENEFIT HIRED SEBVICBS (Ch. 6 sistent M with the continuance of the lien. A lien is strictly per- sonal, and continuous possession on the part of the bailee is essen- tial to its continuance. Accordingly, when the bailee voluntarily Uk parts with possession, his lien is waived. 88 Nor, in such case, will it be revived by the bailee's subsequently reassuming the inter- rupted possession. 84 Again, a wrongful pledge or sale of the chattel by the bailee * 5 will destroy his lien. Since the lien exists solely to secure the payment of the bailee's * compensation, such payment, of course, terminates the lien, 88 and a proper tender of payment would have the same effect. 87 A re- 82 Schouler, Ballm. (2d Ed.) § 123. Bailee forfeits his lien by receipting to stranger and acknowledging that he holds goods for him, or by refusing to deliver goods to his principal on other grounds, omitting to mention his lien. Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Pec. 607. See, also, Sen- senbrenner v. Mathews, 48 Wis. 250, 3 N. W. 59.9, 33 Am. Rep. 809; Miller v. Marston, 35 Me. 153, 56 Am. Dec. 694 ; White v. Gainer, 2 Bing. (Eng.) 23; Brackett v. Pierson, 114 App. Div. 281, 99 N. Y. Supp. 770. as Burrow v. Fowler, 68 Ark. 178, 56 S. W. 1061; Block v. Dowd, 120 N. C. 402, 27 S. E. 129; Holderman v. Manier, 104 Ind. 118, 3 N. E. 811 ; Tucker v. Taylor, 53 Ind. 93; Nevan v. Roup, 8 Iowa, 207; McDougall v. Crapon, 95 N. C. 292; Kitteridge v. Freeman, 48 Vt, 62; In re Merrick, 91 Mich. 342, 51 N. W. 890; King v. Indian Orchard Canal Co., 11 Cush. (Mass.) 231; Stick- ney v. Allen, 10 Gray (Mass.) 352. Delivery of goods to third party, with agreement that lien continues, forfeits lien, unless third person is under con- trol of bailee. Walther v. Wetmore, 1 'E. D. Smith (N. Y.) 7. A tailor does not lose his lien by allowing the customer to try on the clothes made for him, provided it is done in the tailor's presence. Hughes v. Lenny, 5 Mees. & W. (Eng.) 183, 187. There is no common-law lien for work, done in manu- facturing materials into clothing, unless the claimant has possession, actual or constructive, of the materials, and the lien is lost by the claimant volun- tarily and unconditionally parting with such possession or control. Danzer v. Nathan, 145 App. Div. 448, 129 N. Y. Supp. 966. s* Hartley v. Hitchcock, 1 Starkie (Eng.) 408; Howes v. Ball, 7 Barn. & C. (Eng.) 481; Nevan v. Roup, 8 Iowa, 207; Robinson v. Larrabee, 63 Me. 116 ; Hale v. Barrett, 26 111. 195, 79 Am. Dec. 367." as Rodgers v. Grothe, 58 Pa. 414; Davis v. Bigler, 62 Pa. 242, 1 Am. Rep. 303. The lien is aiso waived by claiming possession under an adverse title. Everett v. Saltus, 15 Wend. (N. Y.) 474 ; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607 ; Mexal v^^Dearborn, 12 Gray (Mass.) 336. Lien ac- quired by partnership not lost by dissolution and assignment by one partner of his interest to the other. Busfleld v. Wheeler, 14 Allen (Mass.) 139. See, also, Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73; Nash v. Mosher, 19 Wend. (N. Y.) 431; Samuel v. Morris, 6 Oar. & P. (Eng.) 620. so Pine Bluff Iron Works v. Boling & Bro v 75 Ark. 469, 88 S. W. 306. This is obviously true of liens in general. See Stephens v. Moodie (Tex. Civ. App.) 30 S. W. 490; Moore v. Hitchcock, 4 Wend. (N. Y.) 292; Stansbury v. Patent Cloth Mfg. Co., 5 N. J. Law, 433. 8 7 Pine Bluff Iron Works v. Boling & Bro., 75 Ark. 469, 88 S. W. 306; Stephenson v. Lichtenstein, 72 N. J. Law, 113, 59 Atl. 1033. This is true of liens in general. See Eslow v. Mitchell, 26 Mich. 500; Mitchell v. Roberts § 64) THE LIEN OF THE BAILEE ON THE BAILED CHATTELS 153 fusal by the bailee to surrender the goods after such payment or tender is equivalent to conversion. Of course, by agreement of both the bailor and bailee, the lien may be terminated, though the bailment is allowed to continue." Enforcement of the Lien At common law a lien is the mere right to retain the possession of goods until the satisfaction of a demand. On defaul't in pay- ment by the bailor, the title to the goods did not vest in the bailee and become absolute at law, as in the case of the mortgage; nor did the' bailee have (as has the pledgee) a power of sale as to the goods held under his lien. 89 . The bailee's right to sue the bailor personally for the agreed compensation was not affected by the lien, but only by holding could the lien be made effective. The power of sale could be given by special contract. The bailee has now this power by statute in practically all of the states. 90 (C. C.) 17 Fed. 776 ; Tompkins v. Batie, 11 Neb. 147, 7 N. W. 747, 38 Am. Eep. 361. ss Bailey v. Adams, 14 Wend. (N. Y.) 201. 8» 1 Jones, Liens, § 1033; Jones v. Pearle, 1 Strange (Eng.) 557; Lickbar- row v. Mason, 6 East (Eng.) 21, note ; Thnrnr n Trrm Wnrl tfi C , n , y . Pat ent T >pr- rick C o., 1 Johns. & H. (Eng.) 93; Tt nsfiplri v . wheeler, 14 Allen (Mass.) 139 ; RT5agefs v. Grothe, 58 Pa. 414; Briggs v. Boston & L. R. Co., 6 Allen (Mass.) 246, 83 Am. Dec. 626. In Doane v. Russell, 3 Gray (Mass.) 382,. Chief Jus- tice Shaw says: "If it be said that a right to retain the goods, without the right to sell, is of little or no value, it may be answered that it is cer- tainly" not so adequate a security as a pledge with a power of sale; still, it is to be considered that both parties have rights which are to be regarded "by the law, and the rule must be adapted to general convenience. In the greater number of cases, the lien for work is small in comparison with the value, to the owner, of the article subject to lien ; and in most cases- it would be for the interest of the owner to satisfy the lien and redeem the goods, as in the case of the tailor, the coachmaker, the innkeeper, the carrier, and others; whereas, many times, it would cause great loss to the general owner to sellthe suit of clothes or other articles of personal property. But, further, it is to be considered that the security of this lien, such as it is, is super- added to the holder's right to recover for his services by action." »o «'i n most of the states there are statutes giving to mechanics, artisans, -and others who bestow labor on personal property a lien therefor. The pur- pose of these statutes is, in general, to extend the common-law lien in re- spect of the persons who can acquire such lien, and to give an effectual remedy for its enforcement, either by sale after notice, or by attachment ^nd sale under execution. In a few states the lien is extended so that it may be availed of within a limited time after the property has been de- livered to the owner. But, generally, these statutes, in most respects, are merely declaratory of the common law, and must be interpreted in accord- ance with its principles.' Especially is this so as regards the necessity of retaining possession of the property in order to retain a lien upon it." Jones, Liens, 749; McDearmid v. Foster, 14 Or. 417, 12 Pac. 813; McDougall v. ■Crapon, 95 N. C. 292. "The lien under the statute is of the same nature it 154 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Ctl. 6 Such statutes, being in derogation of the common law, must be strictly construed and followed, particularly when the statute con- ferring the right of sale prescribes the manner and method of its exercise. Of course, a sale of the goods, without warrant either in the bailment contract or statute, constitutes a conversion. 81 THE DEGREE OF CARE TO BE EXERCISED BY THE BAILEE 65. The degree of diligence required of the bailee in fulfilling the purpose of the bailment is placed at ordinary care. In the ordinary locatio operis bailments, as in other bailments for the mutual benefit of the bailor and bailee, the degree of dili- gence exacted of the bailee is ordinary care. The failure on his part to exercise this degree of care 82 is, of course, negligence, formerly was, and the same circumstances must combine to create it. There must be a possession of the thing; otherwise, there cannot, without a special agreement to that effect, be any lien. The term 'lien,' as used in the statute, means the same it ever did — the right to hold the thing until the payment of the reasonable charges for making, altering, repairing, or bestowing labor upon it. Possession of the article is a requisite essential." McDearmid t. Foster, 14 Or. 417, 12 Pac. 813, per Thayer, J. »i Jones v. Pearle, 1 Strange (Eng.) 556; Mulliner v. Florence, 3 Q. B. Div. (Eng.) 484 ; Doane v. Russell, 3 Gray (Mass.) 382 ; Case v. Fogg, 46 Mo. 44; Jones v. Thurloe, 8 Mod. (Eng.) 172; Jesurun v. Kent, 45 Minn. 222, 47 N. W. 784. But in an action for such conversion the bailee may set off. the amount of his lien. Briggs v. Boston & L. B. Co., 6 Allen (Mass.) 246, 83 Am. Dec. .626; Rodgers v. Grothe, 58 Pa. 414, 416. »2 Where plaintiff delivered to cotton ginners certain cotton in controversy to be ginned and stored for hire, the ginners were bailees for hire, chargea- ble with the exercise of ordinary care. Hackney v. Perry, 152 Ala. 626, 44 South. 1029. Storage of cotton delivered to a compress company being an incident to its compression, the company was bound to use ordinary care in such storage. Loeb Compress Co. v. I. G. Bromberg & Co. (Tex. Civ. App.) 140 S. W. 475. See STUDEBAKER BROS. MFG. CO. v. CARTER, 51 Tex. Civ. App. 331, 111 S. W. 1086, Dobie Cas. Bailments and Carriers, 98; MICH- IGAN STOVE CO. v. PUEBLO HARDWARE CO., 51 Colo. 160, 116 Pac. 340, Dobie Cas. Bailments and Carriers, 97; CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54. An agreement to carry or deliver property for a reward, made by one who is not a common carrier, creates the duty to exercise reasonable care, but does not impose a liability on him for losses not occasioned by the ordinary negligence of himself or servants. American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479. When one delivers logs at a custom sawmill, to be sawed at agreed price, the owner of the mill becomes bound to exercise ordinary care in keeping and manufacturing the logs, and, iu case of their loss, to prove that it was without his fault Gleason v. Beers' § 65) THE DEGKEE OF OAEE TO BE EXEEOISED BY THE BAILEE 155 which renders the bailee liable to the bailor for all damages prox- imately flowing therefrom. What has been said in other connections as to ordinary care ap- plies here with added force. In locatio operis the bailment is created by the bailor for the express purpose of securing more or less active services about the chattel and (which is true of no other class of bailments) the bailee receives a compensation for such services. The question, therefore, of the bailee's skill and care assumes here a greater practical importance than in any other class of bailments. Here, as in other mutual benefit bailments, the criterion of or- dinary care is that degree of care exercised by the man of ordinary prudence under similar circumstances. 98 Here, too, the term is Estate, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757. Cotton ginner is held only to ordinary diligence and care in custody of cotton delivered to him to be ginned. Kelton v. Taylor, 11 Lea (Tenn.) 264, 47 Am. Eep. 284. As to lia- bility of banks as collecting agents, see German Nat. Bank v. Burns, 12 Colo. 539, 21 Pac. 714, 13 Am. St. Rep. 247, and note ; National Butchers' & Drovers' Bank v. Hubbell, 117 N. Y. 384, 22 N. E. 1031, 7 L. R. A. 852, 15 Am. St. Rep. 515; Allen v. Merchants' Bank of City of New York, 22 Wend. (N. Y.) 215, 34 Am. Dec. 289, 307, and extended note. The relation between ah owner intrusting goods to the custody of another to have work done on the goods is that of bailor and bailee for mutual benefit, and the bailee need only ex- ercise ordinary care for the protection of the goods. Goldstein v. Blumberg (Sup.) 130 N. Y. Supp. 163. See, also, Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. 711, 67 C. C. A. 265 ; Union Compress Co. v. Nunnally, 67 Ark. 284, 54 S. W. 872; Standard Brewery v. Bemis & Curtis Malting Co., 171 111. 602, 49 N. E. 507; Ashford v. Pittman, 160 N. C. 45, 75 S. E. 943. bs Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823 ; Saunders v. Hartsook, 85 111. App. 55; American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479; Dale v. See, 51' N. J. Law, 378, 18 Atl. 306, 5 L. R. A. 583, 14 Am. St. Rep. 688. One in whose hands property is placed to safely care for, for a consideration, is not liable for its seizure and sale under attachment, he having had nothing to do therewith, except to surrender it to the sheriff on his demanding it by virtue of the attachment in his hands. Fite v. Briedenback, 127 Ky. 504, 105 S. W. 1182, 32 Ky. Law Rep. 400. Where cotton was injured by the negligence of a compress company while, still in its actual possession, the fact that there had been a constructive delivery to a railroad company by delivery of the compress receipts did not relieve the compress company from liability for its negligence. Gulf Compress Co. v. Jones Cotton Co., 172 Ala. 645, 55 South. 206. Plaintiff showing bailment of a trunk for hire and nondelivery on demand, defendant has the burden of showing loss under conditions consistent with due care. Nathan v. Woolver- ton, 149 App. Div. 791, 134 N. Y. Supp. 469. A bale of cotton, after being ginned and tagged, was rolled out on the platform, the attached tag con- taining the bale number, and a duplicate, containing the number, weight, and name of the owner, was given the person who brought it, and when the owner called for it next morning it could not be found. There were notices around the gin stating the company^ . would not be liable for cotton after 156 BAILMENTS FOB MUTUAL BENEFIT HIRED 8EBVICES (Ch. ft one of intense relativity. 94 Here, too, is frequently invoked the doctrine of estoppel against the bailor, having knowledge of the bailee's character, or the conditions under which the bailment is- to be carried out. 85 Of special importance, too, is the doctrine that one holding himself out as possessing unusual skill is to be judged accordingly. 06 Such holding out may be by express terms in an individual instance, or it may be by simply undertaking to perform, work necessarily involving skill, or holding one's self out as belong- ing to a class of bailees implying special skill, 97 such as watch- ginned and baled, of which the owner knew, as well as that It was the gen- eral custom to dispose of baled cotton as defendant had done. Held, in a suit by the owner for the missing bale, that it was error to peremptorily instruct for plaintiff. Batesville Gin Co. v. Whitten (Miss.) 48 South. 616. »* See cases cited in notes 92, 93. Showing that a watchman employed 1 by a bailee was addicted to drink, without showing causal connection with a fire which caused loss of goods, will not entitle the bailor to recover for the goods. Gibbons v. Yazoo & M. V. R. Co., 130 La. 671, 58 South. 505. In, an action to recover the value of theatrical costumes delivered to the defend- ant to be cleaned, and not returned by him, an affidavit of defense is suffi- cient which avers that the defendant employed a competent man to do the- work, that the process employed was the best known to the trade, that spe- cial care was used, that notwithstanding that every care and precaution was taken in the handling and cleaning of the costumes, the materials used in cleaning were in some unaccountable way ignited, and a fire resulted, destroy- ing some of the costumes and damaging others, and that an offer was made to the plaintiff to repair the damaged goods and put them in as good condi- tion as before, but that plaintiff refused such offer. Gingerbread Man Co- v. Schumacher, 35 Pa. Super. Ct. 652. See, also. Union Compress Co. v. Nun- nally, 67 Ark. 284, 54 S. W. 872 ; Standard Brewery v. Hales & Curtis Malting Co., 70 111. App. 363; Vroman v. Kryn (Sup.) 86 N. Y. Supp. 94; Russell v, Koehler, 66 111. 459; Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259. »o See ante, p. 69 ; Jones, Bailm. 63, 98-100 ; Story, Bailm. § 435 ; 1 Bell, Comm. (5th Ed.) p. 459; Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234; Stearns v. Farrand, 29 Misc. Rep. 292, 60 N. Y. Supp. 501. A bailment contract ordinarily imports that the bailee may use the usual means of executing the bailment. Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913B, 823. See note 97. on Lincoln v. Gay, 164 Mass. 537, 42 N. B. 95, 49 Am. St. Rep. 480; Stanton v. Bell, 9 N. C. 145, 11 Am. Dec. 744; Kuehn v. Wilson, 13 Wis. 104; Hillyard v. Crabtree's Adm'r, 11 Tex. 264, 62 Am. Dec. 475; Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259; Baird v. Daly, 57 N. Y. 236, 15 Am. Rep. 488; Money- penny v. Hartland, 1 Car. & P. (Eng.) 352; Id., 2 Car. & P. (Eng.) 378;. Duncan v. Blundell, 3 Starkie (Eng.) 6; G amber v. Wolaver, 1 Watts & S. (Pa.) 60; Farnsworth v. Garrard, 1 Camp. (Eng.) 28; Moore v. Mourgue, Cowp. (Eng.) 479. See, also, Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534; McKlbben v. Bakers, 1 B. Mon. (Ky.) 120; Zell v. Dunkle, 156 Pa. 353, 27 Atl. 38; Horner v. Cornelius, 5 C. B. (Eng.) at page 246^ Willes, J.; 1 Halsbury, Laws of England, p. 559. •7 See cases in last note. Lincoln v. Gay, for example, involved a dress- maker. But even when the particular business or employment requires skilL § 65) the: degree of oaee to be exercised by the bailee 157 makers, tailors, and cabinet makers. The doctrine is "spondet peritiam artis" — he promises the skill of his art. Thus one under- taking to clean a delicate and expensive lace garment is not to be judged by the same practical standard as one cleaning an ordinary- pair of shoes ; nor one retouching the colors of an ivory miniature by the skill of one who paints doors and window blinds. Practical common sense is always to be used in solving the problem of what, under an infinite variety of controlling circumstances, does or does not constitute ordinary care. 98 The parties can, of course, stipulate for a higher or lower degree of care, or the bailee may by his active wrong become an insurer." In the absence of such contract or wrong, the bailee is liable for loss or damage only when it is due to his failure to exercise ordinary care. 1 Thus for loss or damage by act of God, or other inevitable If the bailee is known not to possess it, or he does not exercise the particular art or employment to which it belongs, and he makes no pretension to skill in it, there, if the bailor, with full notice, trusts him with the undertaking, the bailee is bound only for a reasonable exercise of the skill which he pos- sesses, or of the judgment which he can employ; and, if any loss ensues from his want of due skill, he is not chargeable. Thus, if a person will knowingly employ a common mat maker to weave or embroider a fine carpet, he must impute the bad workmanship to his own folly. os See,, further, Keith v. Bliss, 10 111. App. 424 ; Gamber v. Wolaver, 1 Watts & S. (Pa.) 60; Lienan v. Dinsmore, 3 Daly (N. T.) 365; Clark v. Evershaw, Gow (Eng.) 30; Lanphier v. Phipes, 8 Car. & P. (Eng.) 475. Usage may be shown to qualify liability of bailee. Kelton v. Taylor, 11 Lea (Term.) 264, 47 Am. Rep. 2S4. In Brown v. Hitchcock, 28 Vt. 452, 457, it was shown that the defendant received from the plaintiff a quantity of palm leaf, agree- ing to manufacture the same into hats, or to return it to plaintiff on demand. While in the hands of the defendant, the leaf was injured by heat and mil- dew. Isham, J., said: "We perceive no objection to the admission of the testimony in relation to the usage and custom in packing leaf for market, as also the necessity and custom of taking the leaf from the sacks and ex- posing it to air to prevent its becoming injured and worthless. Its object was simply to ascertain the character and degree of care which the defend- ant should have exercised, and that which he did exert over the property while it was in his possession." »» Russell v. Koehler, 66 111. 459. As in other classes of bailments. See ante, pp. 18-19, 83, 110 ; Story, Bailm. § 431 ; Schouler, Bailm. (2d Ed.) § 105. As to when such contracts extend the common-law duty of ordinary care, see Shaw v. Davis, 7 Mich. 318 ; Chicago, St. L. & N. O. R. Co. v. Pullman South- ern Car Co., 139 U. S. 79, 11 Sup. Ct. 490, 35 L. Ed. 97; Phillips v. Hughes (Tex. Civ. App.) 33 S. W. 157. i Story, Bailm. § 437 ; Norway Plains Co. v. Boston & M. R. R., 1 Gray (Mass.) 263, 61 Am. Dec. 423; Francis v. Dubuque & S. C. R. Co., 25 Iowa, 60, 95 Am. Dec. 769; McCullom v. Porter, 17 La. Ann. 89; Waller v. Parker, 5 Cold. (Tenn.) 476; Cowles v. Pointer, 26 Miss. 253; Johnson v. Smith, 54 Minn. 319, 56 N. W. 37; SAFE-DEPOSIT CO. OF PITTSBURGH v. POL- LOCK, 85 Pa. 391, 27 Am. Rep. 660, Dobie Cas. Bailments and Carriers, 101 ; i.58 BAILMENTS FOE MUTUAL BENEFIT HIKED SERVICES (Ch. 6 calamity, the bailee would be responsible only when his negli- gence exposed the goods to such act, or when he was negligent in failing to minimize the loss flowing therefrom, after the act had occurred. 2 The bailor is, of course, denied a recovery when the damage is attributable to his own fault, as when it is due to the plan out- lined by the bailor, or when he furnishes defective materials. 8 . DELEGATION OF THE SERVICES BY THE BAILEE TO A THIRD PERSON 66. Unless the contract or the nature of the bailment requires the personal services of the bailee, he may have the work com- pletely performed by third persons, or he may employ them to assist him in the undertaking. It is difficult in a locatio operis bailment to say that the carrying out of the bailment purpose either is or is not personal to the Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156 ; Abraham v. Nunn, 42 Ala. 51 ; Smith v. Frost, 51 Ga. 336; Tale v. Oliver, 21 La. Ann. 454. A bailee for hire is not an insurer as to the conduct of his employes, but is responsible for ordinary care in the selection of his agents, in retaining them in his employ, and for wrongful acts within the scope of the employment. Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. K. A. (N. S.) 314, Ann. Cas. 1913E, 823. A want of ordinary care in one particular, on the part of a warehouseman, does not render him responsible for a loss occasioned by other causes not connected with that particular. Gibson v. Hatchett, 24 Ala. 201. See, also, 2 Jag. Torts, "Connection as Cause," 929, 975. But see Powers v. Mitchell, 3 Hill (N. Y.) 545 ; Francis v. Castleman, 4 Bibb (Ky.) 282 ; Claflin v. Meyer, 43 N. Y. Super. Ct. 1; McGinn v. Butler, 31 Iowa, 160. See Stevens v. Boston & M. R. K., 1 Gray (Mass.) 277. 2 Leek v. Maestaer, 1 Camp. (Eng.) 138 ; Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259; James v. Greenwood, 20 La. Ann. 297. See, also, Story, Bailm. | 444; Piatt v. Hibbard, 7 Cow. (N. Y.) 497; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156; Claflin v. Meyer, 43 N. Y. Super. Ct. 1. One who undertakes to repair a boat, and places her upon marine railways upon bank of river for that purpose, is bound to use at least ordinary care for preservation thereof. He is liable in damages for her destruction if he launches her into river at time and under circumstances of great danger, which he ought to have foreseen, and which caused destruction of boat in spite of her owner's efforts to save her. This, although the loss was occasioned by breaking up of the ice, and 12 days after launching. Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259. a Story, Bailm. § 431 ; Schouler, Bailm. (2d Ed.) § 105. Where the em- ployer supersedes the Judgment of the workman, and insists that his own plan be followed, the workman is not liable for any losses resulting from pursuing such method. Duncan v. Blundell, 3 Starkie (Eng.) 6. See, also, Vroman v. Kryn (Sup.) 86 N. Y. Supp. 94, when bailor prescribed the type of machine by which the bailee was to polish the diamonds. § 67) SPECIFIC BAILMENTS — WAREHOUSEMEN 159 bailee. In the absence of special contract, this depends on the na- ture and circumstances of the particular bailment. For example, of the cases just mentioned, cleaning the shoes would ordinarily not be personal, and the bailee could intrust the work to a third person ; quite the contrary would be true as to retouching the miniature. The more valuable the bailed chattel, the more difficult and delicate the work, the more unique the skill required, and especially the greater the play for the individuality of the bailee, the stronger is the showing that the bailment is a personal one, involving con- fidence reposed in the individual bailee.* SPECIFIC BAILMENTS 67. There are a few classes of locatio operis bailees or semi-bailees whose business so vitally affects the public that they re- quire some brief special mention. Such are (1) ware- housemen; (2) wharfingers; (3) factors; (4) safe-de- posit companies ; and (5) officers in charge of public funds. SAME— WAREHOUSEMEN A warehouseman is a bailee who receives goods and merchandise to be stored in his warehouse for hire. 6 " This is therefore a locatio custodise bailment, one involving the hiring of the custody of a thing rather than active labor and services about it. The storing of goods in warehouses is among the most common of all commercial bailments and it has assumed a tremendous practical importance. * See Rodgers v. Grothe, 58 Pa. 414 ; Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. E. A. (N. S.) 314, Ann. Cas. 1913B, 823. See, also, 1 Halsbury Laws of England, p. 560; Van Zile, Bailm. & Carr. § 154. Custom and usage, of course, play an important part here. Frequently the size and variety of the work (as in the case of extensive repairs to a ship) would conclusively show that the bailee could not personally perform all the services himself, but must delegate it in whole or part to others for whose work, while acting within the scope of their employment, the bailee is, of course, responsible. s See 2 Bouv. Law Diet 799 ; Black, Law Diet. (2d Ed.) p. 1218. In the Uniform Warehouse Receipts Act (adopted in a number of states), a ware- houseman is defined as "a person lawfully engaged in the business of storing goods for profit." There are also other statutory definitions. See, for ex- ample, Ky. St. § 4768 (Act July 6, 1893); Burns' Rev. St. Ind. 1894, § 8720. See, further, Sinsheimer v. Whitely, 111 Cal. 378, 380, 43 Pac. 1109, 52 Am. St. Rep. 192; Geilfuss v. Corrigan, 95 Wis. 651, 659, 70 N. W. 306, 37 L. R. A. 166, 60 Am. St; Rep. 143; United States v. Oregon R. & Navigation Co. (C. C.) 159 Fed. 975, 977; 48 Cent. Dig. "Warehousemen," § 4. 160 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Gh. 6 The nature of the warehouseman's business, as well as his meth- ods of conducting it, vary as widely as the nature of the goods in- trusted to him. A great number of cases are concerned with the storage of grain ; but, since the common carrier, as to goods in his hands, is a mere warehouseman before the technical carriage rela- tion attaches and after it ends, 6 this, too, has made the rights and duties of warehousemen the subject of frequent study by the courts. Though warehousemen of grain were declared by the United States Supreme Court to be "clothed with a public interest," 7 it is generally held that the warehouseman, in the absence of statute, does not pursue a "public calling" in the strict sense in which that term is used of common carriers and innkeepers, and hence ordi- narily he is not obliged by law, in the absence of statute, to re- ceive goods tendered to him for storage. 8 The warehouseman is, therefore, said to pursue a quasi public calling. The validity' of statutes making his calling strictly a public one, and imposing on him the duty to serve all the public, has been frequently upheld. 9 Even the owners of so-called "bonded warehouses," in which goods are stored until the payment of the duties prescribed by the federal government, remain in a sense private warehousemen and liable as such for their negligence, or failure to exercise or- dinary care, in protecting such goods. 10 Warehouseman Required to Exercise Only Ordinary Care In spite of his quasi public calling, the warehouseman is held to the same standard of diligence as other bailees in mutual benefit bailments, the exercise of ordinary care. 11 The warehouseman is « See post, §§ 136, 139, 144. t Munn v. Illinois, 94 TJ. S. 113, 24 L. Ed. 77. s Delaware, L. & W. R. Co. v. Central Stock-Yard & Transit Co., 46 N. J. Eq. 280, 19 Atl. 185; Nash v. Page, 80 Ky. 539, 44 Am. Rep. 490. • As to how far warehousemen pursue a public calling and how far they may be regulated, see Bank of Rome v. Haselton, 15 Lea (Tenn.) 216, up- holding Tennessee Warehouse Act of 1879 (Laws 1879, c. 236) ; Hannah v. People ex rel. Attorney General, 198 111. 77, 64 N. E. 776 (police power of state); Ratcliff v. Wichita Union Stockyards Co., 74 Kan. 1, 86 Pac. 150, 6 L. R. A. (N. S.) 834, and note, 118 Am. St. Rep. 298, 10 Ann. Cas. 1016 (rates to be charged); Central Elevator Co. v. People ex rel. Moloney, 174 111. 203, 51 N. E. 254, 43 L. R. A. 658 (method of doing business). io See Rev. St §§ 2954-3008 (TJ. S. Comp. St 1901, pp. 1941-1984); Macklin v. Frazier, 9 Bush (Ky.) 3; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467. ii Warehousemen are only ordinary bailees for hire, and are bound only to common care and diligence, and are liable only for want of such diligence or care. Edw. Bailm. 254; Jones, Bailm. 97; Story, Bailm. § 444; Cailiff v. Danvers, Peake' (Eng.) 155 ; Foote v. Storrs, 2 Barb. (N. Y.) 326, 328 ; Bogert v. Haight, 20 Barb. (N. Y.) 251; Myers v. Walker, 31 111. 353; Buckingham v. Fisher, 70 111. 121 ; Hatchett v. Gibson, 13 Ala. 587 ; Dimmick v. Milwaukee § 67) WABEHOUSEMBS 161 therefore liable only for negligence as thus judged. The rules as to negligence and the burden of proving it " that govern bail- ments in general, and the tests by which ordinary care is deter- mined in other mutual benefit bailments, are all applicable here. 13 The place of storage is of great practical importance, 14 as well as the precautions to protect the goods against damage from such & St. P. Ry. Co., 18 Wis. 471; McCullom v. Porter, 17 La. Ann. 89; Blin v. Mayo, 10 Vt. 56, 59, 33 Am. Dec. 175; Taylor v. Secrist, 2 Disn. (Ohio) 299; Cowles v. Pointer, 26 Miss. 253; Rodgers v. Stophel, 32 Pa. Ill, 72 Am. Dec. 775; Ducker v. Barnett, 5 Mo. 97; Mechanics' & T. Co. v. Kiger, 103 U. S. 352, 26 L. Ed. 433. A warehouseman is not liable as a common carrier, but only for ordinary diligence. Ducker v. Barnett, 5 Mo. 97; Cincinnati & C. Air Line R. Co. v. McCool, 26 Ind. 140; Holtzclaw v. Duff, 27 Mo. 392 ; Tits- worth v. Winnegar, 51 Barb. (N. T.) 148; Knapp v. Curtis, 9 Wend. (N. T.) 60. The duty of warehousemen imposes on them the exercise of ordinary care only, or, in other words, 'the care and diligence which good and capable warehousemen are accustomed to show under similar circumstances. Lan- caster Mills v. Merchants' Cotton-Press Co., 89 Tenn. 1, 14 S. W. 317, 24 Am. St. Rep. 586. Whatever a diligent man would deem necessary, under any given circumstances, for the preservation of his own property, must be done by the individual, or corporation, or city, that undertakes, for hire, the preservation of property for the public. Willey v. Allegheny City, 118 Pa. 490, 12 Atl. 453, 4 Am. St Rep. 608. See, also, the following modern cases: Denver Public Warehouse Co. v. Munger, 20 Colo. App. 56, 77 Pac. 5; Charlotte Trouser Co. v. Seaboard Air Line R. Co., 139 N. C. 382, 51 S. E. 973; Louisville & N. R. Co. v. United States, 39 Ct. CI. 405; Wiley v. Locke, 81 Kan. 143, 105 Pac. 11, 24 L. R. A. (N. S.) 1117, 19 Ann. Cas. 241 ; Baltimore Refrigerating & Heating Co. v. Kreiner, 109 Md. 361, 71 Atl. 1066. 12 Davis v. Hurt, 114 Ala. 146, 21 South. 468; Taussig v. Bode & Haslett, 134 Cal. 260, 66 Pac. 259, 54 L. R. A. 774, 86 Am. St. Rep. 250 ; Geo. C. Bagley Elevator Co. v. American Exp. Co., 63 Minn. 142, 65 N. W. 264 ; Evans v. New York & P. S. S. Co. (D. C.) 163 Fed. 405; Hoeveller v. Myers, 158 Pa. 461, 27 Atl. 1081; Marks v. New Orleans Cold Storage Co., 107 La. 172, 31 South.- 671, 57 L. R.' A. 271, 90 Am. St. Rep. 285. is Security Storage & Trust Co. v. Denys, 119 Md. 330, 86 Atl. 613; Buffalo Grain Co. v. Sowerby, 195 N. T. 355, 88 N. E. 569 ; Baltimore & O. R. Co. v. Schumacher, 29 Md. 168, 96 Am. Dec. 510; Sibley Warehouse & Storage Co. v. Durand & Kasper Co., 200 111. 354, 65 N. E. 676 ; Mayer v. Brensinger, 180 111. 110, 54 N. E. 159, 72 Am. St. Rep. 196 ; Muskogee Crystal Ice Co. v. Riley Bros., 24 Okl. 114, 108 Pac. 629. In Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156, it appeared that 900 barrels of salt were stored in a frame warehouse, on an alley. Two hundred and forty barrels were stolen, in quantities rang- ing from 20 to 25 barrels a day, so that the entire 240 barrels were taken at about 10 different times, running through a period of one month. It was held that the defendants were negligent In failing to exercise any further care or supervision after placing the salt in the warehouse. i* Moulton v. Phillips, 10 R. I. 218, 14 Am. Rep. 663 ; Walden v. Finch, 70 Pa. 460. See Hickey v. Morrell, 102 N. T. 454, 7 N. E. 321, 55 Am. Rep. 824. Cf. Hallock v. Mallett, 55 N. T. Super. Ct. 265. The law does not re- quire a warehouseman to construct his buildings secure from all possible contingencies. If they are reasonably and ordinarily safe against ordinary Dob.Bailm. — 11 162 BAILMENTS FOR MUTUAL BENEFIT HIRED SERVICES (Ch. !> agencies as fire, 15 theft, 18 heat or cold, 17 and dampness. Modern improvements have made tremendous strides in devising and per- fecting such protective methods, and with these the warehouse- man must keep pace. He need not be among the first to try every new device; he must not be among the last to abandon such as are old and outworn. Particularly is this true when perishable goods are received in "cold storage," 18 a business which modern and common occurrences, it is sufficient. Cowles v. Pointer, 26 Miss. 253. See, also, Schouler, Bailm. (2d Ed.) § 102; Hatchett v. Gibson, 13 Ala. 587; Jones v. Hatchett, 14 Ala. 743; Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156; Moulton v. Phillips, 10 K. I. 218, 14 Am. Rep. 663. The bailee may show that the bailor approved of the place of storage, and that the goods were damp when delivered, and liable to mildew; and the bailor, that the goods were in the ordinary trade condition, and that the bailee knew they should have been aired and dried. Brown v. Hitchcock, 28 Vt. 452. Where a bailee to store cotton for hire permitted it to remain with the roping off, the bagging torn, the cotton loose, and the under bales in the mud, whereby it was much injured, held, that it was a want of ordinary care. Morehead v. Brown, 51 N. C. 367. is McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich. 664, 99 N. W. 875, 112 Am. St Rep. 384; Walker v. Eikleberry, 7 Okl. 599, 54 Pac. 553. A warehouseman who agrees to store the property in a fireproof building is liable for any loss caused by his failure to do so. Vincent v. Rather, 31 Tex. 77, 98 Am. Dec. 516. See, also, Jones v. Hatchett, 14 Ala. 743; Hatchett v. Gibson, 13 Ala. 587. In Hamilton v. Elstner, 24 La. Ann. 455, the ware- houseman was held liable for failure to remove the goods to a place of safety after knowledge of danger from the fire. ie Lockwood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68, 50 N. T. Supp. 974; Murray v. International S. S. Co., 170 Mass. 166, 48 N. E. 1093, 64 Am. St. Rep. 290; Moore v. Mayor, etc., of City of Mobile, 1 Stew. (Ala.) 284; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1; Vere v. Smith, 1 Vent. (Eng.) 121 ; Coke, Inst. 89a; Southcote v. Bennet, 4 Coke (Eng.) 83b; Lamb v. Western R. Corp., 7 Allen (Mass.) 98; Cass v. Boston & L. R. Co., 14 Allen (Mass.) 448; Claflin v. Meyer, 75 N. T. 260, 31 Am. Rep. 467; Piatt v. Hibbard, 7 Cow. (N. Y.) 497; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Williamson v. New York, N. H. & H. R. Co. (Super. Ct.) 4 N. Y. Supp. 834 ; Williams v. Holland, 22 How. Prac. (N. Y.) 137; Berry v. Marix, 16 La. Ann. 248. Ware- housemen not chargeable with negligence are not answerable for goods in- trusted to them, in case of robbery, or when embezzled by their storekeeper or servant; and the onus of showing negligence is on the owner. Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Moore v. Mayor, etc., of City of Mobile, 1 Stew. (Ala.) 284. it Rudell v. Grand Rapids Cold Storage Co., 136 Mich. 528, 99 N. W. 756; Sutherland v. Albany Cold Storage & Warehouse Co., 171 N. Y. 269, 63 N. E. 1100, 89 Am. St. Rep. 815. As to rats, see Cailiff v. Danvers, 1 Peake (Eng.) 155. The constant presence of a terrier dog is sufficient precaution, Taylor v. Secrist, 2 Disn. (Ohio) 299, 301 ; or of a cat, Cailiff v. Danvers, 1 Peake (Eng.) 155; Aymar v. Astor, 6 Cow. (N. Y.) 266, 267. But see, contra, Laveroni v. Drury, 16 Jur. (Eng.) 1024, 22 L. J. Exch. 2. is See, in general, the following cold storage cases: Baltimore Refrigerating § 67) WAREHOUSEMEN 163 methods of refrigeration and temperature control have raised to a state of unusual efficiency. The warehouseman, as is the case with other bailees, is not in general required by ordinary care to take out fire insurance on the goods. 18 He can do so, however, for the full value of the goods, holding any excess beyond his own interest in trust for the bailor. Warehouse Receipts — Usage — Lien It is the custom of warehousemen, on receiving goods to be stored, to issue a receipt or delivery order upon the presentation of which the goods are to be surrendered to the bailor or his order. These instruments are called "warehouse receipts," and in their general nature and legal incidents they are similar to the carrier's bills of lading. 20 They are issued primarily in order that, as a symbol or representative of the goods, they might furnish the bailor an effective and simple method of dealing with the goods, 21 as by a sale or pledge. They are not, strictly speaking, negotiable ; but a transfer of the warehouse receipt, in general, confers the same measure of title that an actual delivery of the goods which it represents would confer. 22 Warehouse receipts are discussed in other connections, and what is said as to bills of lading, in regard to their transfer and the rights conferred on their transferee, is, in general, equally true of warehouse receipts. 23 The part that custom and usage may play in affecting the rights and duties of bailees is accentuated in the case of warehousemen. Such usages may and do explain and qualify the warehouseman's & Heating Co. v. Kreiner, 109 Md. 361, 71 Atl. 1066 (failure to construct proper ice box and cold storage cellar) ; Greenwich Warehouse Co. v. Max- field, 8 Misc. Rep. 308, 28 N. Y. Supp. 732 (freezing of fruit stored) ; LEIDY v. QUAKER CITY COLD STORAGE & WAREHOUSE CO., 180 Pa. 323, 36 Atl. 851, Dobie Cas. Bailments and Carriers, 100 (poultry molded by mois- ture). is Atwater v. Hannah & Co., 116 Ga. 745, 42 S. E. 1007. 20 See post, pp. 196, 214. See 35 Am. Bar Ass'n Rep. (1910) 1116, as to Uniform Warehouse Receipts Act and its adoption in various states. See also, McClain v. Merchants' Warehouse Co., 115 Fed. 295, 53 C. C. A. 155; Canadian Bank of Commerce v. McCrea, 106 111. 281, 292 ; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760 ; Miller v. Browarsky, 130 Pa. 372, 373, 18 Atl. 643. 2i Livingston v. U. Anderson & Son, 2 Ga. App. 274, 58 S. E. 505; Citizens' Banking Co. v. Peacock, 103 Ga. 171, 29 S. E. 752; Bush v. Export Storage Co. (C. C.) 136 Fed. 918 ; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572. 22 McNeil v. Hill, 16 Fed. Cas. No. 8,914; Millhiser Mfg. Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760; Solomon v. Bushnell, 11 Or. 277, 3 Pac. 677, 50 Am. Rep. 475; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123. as See post, pp. 196, 211-214, 418. 164 BAILMENTS FOB MUTUAL BENEFIT HIRED SERVICES (Ch. 6 contract to a highly appreciable extent, but custom and usage are never permitted to contradict a positive rule of law. The warehouseman's lien is a special and not a general one. 24 It is therefore controlled by the rules applicable to special liens, which have been previously discussed. 25 In general, the liability of the warehouseman begins only when the goods have been delivered on his premises, and expressly or impliedly received by him. 26 It has been held 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 be- gins. 27 If a warehouseman consents to take charge of goods before they reach the warehouse, he is liable from the moment that he thus takes charge. The liability 28 of a warehouseman ends with his delivery of the goods to the person rightfully entitled to them. Thus, where wheat is discharged into a vessel through a pipe controlled by the vessel, the warehouseman's liability ends with the discharge into the pipe. 29 The liability of the warehouseman also ceases when the goods are taken from his possession without fault on his part, or lost by means for which he is not responsible. 30 The general principle of bailments, that the bailee must return to the bailor the identical goods delivered, of course, applies to the warehouseman. 31 In practice, however, the actual working of the rule is often done away with as to warehousemen, when the t 2« Schumacher v. Chi^n. A 1ST. W. R. fin., 207 111. 199, 69 N. E. 825; J. I. Case Plow Works v. Union Iron Works, 56 Mo. App. 1; Reidenback v. Tuck (Sup.) 85 N. Y. Supp. 352; Wesling v. Noonan, 31 Miss. 599. 2= Ante, § 64. . 2« Burr v. Daugherty, 21 Ark. 559; Vincent v. Rather, 31 Tex. 77, 98 Am. Dec. 516; Rodgers v. Stophel, 32 Pa. Ill, 72 Am. Dec. 775; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175. See, also, Titsworth v. Winnegar, 51 Barb. (N. Y.) 148. A warehouseman cannot have possession of another's property, with its accompanying duties and responsibilities, forced upon him against his will. Delaware, L. & W. R. Co. v. Central S. Y. & T. Co., 45 N. J. Eq. 50, 17 AtL 146, 6 L. R. A. 855. A warehouseman is responsible for the safety and se- curity of goods after delivery in the warehouse on Sunday, the safe-keeping . of goods being a work of necessity. Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 16 L. Ed. 682. 27 Thomas v. Day, 4 Esp. (Eng.) 262. See, also, De Mott v. Lara way, 14 Wend. (N. Y.) 225, 28 Am. Dec. 523; Randleson v. Murray, 8 Adol. & E. (Eng.) 109 ; Merritt v. Old Colony & N. R. Co., 11 Allen (Mass.) 80 ; Jefferson- ville R. Co. v. White, 6 Bush (Ky.) 251, 252. 28 Ducker v. Barnett, 5 Mo. 97. 20 The R. G. Winslow, 4 Biss. 13, Fed. Cas. No. 11,736. so Sessions t. Western R. Corp., 16 Gray (Mass.) 132. Cf. Smith v. Frost, 51 Ga. 336. «i United States v. Oregon R. & Navigation Co. (C. C.) 159 Fed. 975; Hale v. Milwaukee Dock Co., 29 Wis. 482, 9 Am. Rep. 603. § 67) WHAKFINGEBS 165 bailors expressly or impliedly (as by custom) consent to have their goods (generally grain) mixed in a common mass of similar goods, and each bailor has the right to withdraw from the uniform mass the quantity he deposited. 82 Under such an arrangement, as we have already seen, the transaction is none the less a bailment be- cause the bailor does not receive back the identical grain deposited, and each bailor remains the owner of a share in the mass determin- ed by the percentage that the amount his deposit is of the entire mass. 8 * SAME— WHARFINGERS A wharfinger is one who owns or keeps a wharf for the purpose of receiving and shipping merchandise to or from it for hire. 34 The control of their own wharves by modern transportation companies has greatly diminished the practical importance of the wharfinger. He is in no sense a common carrier, fulfilling neither word of the term. The liabilities of wharfingers are thus substantially similar to those of warehousemen. They are therefore, like the latter, re- sponsible only for ordinary care in securing the goods from loss or damage. 85 The responsibility of a wharfinger begins and ends when he acquires, and when he ceases to have, the custody of the goods in that capacity. 86 His liability thus begins when the goods are de- livered on the wharf and he has either expressly or impliedly re- ceived them. This is frequently governed by custom or usage, which plays an unusually important part in this business. A mere delivery of goods at a wharf is not necessarily a delivery of them to the wharfinger, but there must be some act or assent on his part, which may be either express or implied, to the custody of the goods. 87 Where goods are in the wharfinger's possession, to be sent on board of a vessel for a voyage, as soon as he delivers the »2 Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706; Hutchison v. Commonwealth, 82 Pa. 472; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623. 83 Ante, p. 8. a* Black, Law Diet. (2d Ed.) p. 1226; Rodgers v. Stophel, 32 Pa. Ill, 113, 72 Am. Dec. 775; Chapman v. State, 104 Cal. 690, 694, 38 Pac. 457, 43 Am. St. Rep. 158. so Buckingham v. Fisher, 70 111. 121; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175; Foote v. Storrs, 2 Barb. (N. T.) 326; Cox v. O'Riley, 4 Ind. 368, 58 Am. Dec. 633. so Rodgers v. Stophel, 32 Pa. Ill, 72 Am. Dec. 775; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 175. «' Buckman v. Levi, 3 Camp. (Eng.) 414; Gibson v. Inglis, 4 Camp. (Eng.) 72; Packard v. Getman, 6 Cow. ,(N. Y.) 757, 16 Am. Dec. 475. 166 BAILMENTS FOR MUTUAL BENEFIT HIRED SERVICES (Ch. 6 possession and care of them to the proper officers of the vessel, although they are not actually removed from his wharf, he is . deemed exonerated from any further responsibility, and the goods are deemed to be in the constructive possession of the officers of the ship. 38 A wharfinger, like other depositaries for hire, has a lien on the goods for his wharfage. 89 By inveterate custom, the wharfinger seems to have been among the few favored bailees to whom the law gives a general, as opposed to a special, lien.? SAME— SAFE-DEPOSIT COMPANIES Safe-deposit companies make a business of renting to the public for a compensation the control of drawers, boxes, safes, or even rooms in their vaults.* 1 In these drawers, boxes, or safes, the persons renting them keep such valuables as papers or corporeal chattels of small bulk. During the time for which the drawer or box is rented, the renter alone has access to the drawer or box, to the exclusion even of the officers, of the safe-deposit company. The property kept in the drawer or box is usually unknown to the com- pany ; in fact, this very secrecy is one of the elements highly desired by the depositor, and for which he pays the compensation. Secrecy and security are, indeed, the distinctive advantages accruing to the renter. The company has control of the vault in which the drawer or box is situated. Its chief duty is to prevent any person other than the renter from having access to such drawer or box, and to as "When the responsibility of the ship begins, that of the wharfinger ends." Lord EUenborough in Cobban v. Downe, 5 Esp. (Eng.) 41. A wharfinger who has illegally detained goods, which the owner has since agreed to ' accept and send for, is not liable for their destruction by fire, without his fault, after the owner has had a reasonable time to remove them. Carnes v. Nichols, 10 Gray (Mass.) 369. See, also, Merritt v. Old Colony & N. R. Co., 11 Allen (Mass.) 80, 83; Gass v. New York, P. & B. R. Co., 99 Mass. 227, 96 Am. Dec. 742. 3 9 Johnson v. The McDonough, Gilp. 101, Fed. Cas. No. 7,395; Ex parte Lewis, 2 Gall. 483, Fed. Cas. No. 8,310; Vaylor v. Mangles, 1 Esp. (Eng.) 109; Spears v. Hartly, 3 Esp. (Eng.) 81; Holderness v. Collinson, 7 Barn. & C. (Eng.) 212. See, generally, Brookman v. Hamill, 43 N. T. 554, 3 Am. Eep. 731; Lenckhart v. Cooper, 3 Bing. N. C. (Eng.) 99; Barry v. Longmore, 4 Perry & D. (Eng.) 344. And see Sage v. Gittner, 11 Barb. (N. Y.) 120. «o Taylor v. Margies, 1 Esp. (Eng.) 109; Spears v. Hartley, 3 Esp. (Eng.) 81; Dresser v. Bosanquet, 4 Best & S. (Eng.) 460; Holderness v. Collinson, 7 Barn. & C. (Eng.) 212, 14 E. C. L. 30. « Bouv. Law Diet.; Cent. Diet. § 67) SAFE-DEPOSIT COMPANIES 167 protect the contents, thereof as well from personal as from im- personal destructive agencies, such as theft, fire, flood, etc. To this end?, the company usually employs elaborate instrumentalities, both animate and inanimate. The phenomenal development of this business, particularly in the important financial centers of the country, has compelled the courts to discuss the nature of the relation between the renter of the box, drawer, etc., and the company. That cases of loss or damage have so seldom been before the courts is a striking testimony to the effi- ciency of the companies in safeguarding the property in their vaults. At one time courts and writers seem to have taken it for granted^ that the relation was one of bailment and adjudged accordingly. 42 Judge Sharswood, however, in an early case, 43 pointed out that the contents of the safe remained in the possession of the renter. If this be true, and it can hardly be gainsaid, there has been no trans- fer of possession, and hence no delivery. Without a delivery, there t can be no bailment. In some of the cases holding the relation to be that of bailment, it was not at all necessary to the decision in the case to pronounce the defendant a bailee, as it was clearly liable for a breach of its contract Undertaking. This was true, for example, in Roberts v. Stuyvesant Safe-Deposit Co., 44 where the company was held lia- ble for permitting property to be removed from a vault rented by it to the plaintiff, under color of legal process, which, in fact, did not authorize the officers of the law to seize the property. In another case, 45 the company agreed to "keep a constant and adequate guard over and upon the burglar-proof safe," and it was held that the mere disappearance of the plaintiff's bonds constituted a prima facie case against the company. The correctness of these decisions 42 Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57, 25 N. E. 294, 9 L. E. A. 438, 20 Am. St. Rep. 718 ; Schouler, Bailm. (2d Ed.) § 96 ; Lawson, Bailm. § 44. The relation was also held, to be that of bailor and bailee in the following cases, both citing the Roberts Case: Mayer v. Brensinger, 180 111. 110, 54 N. E. 159, 72 Am. St. Rep. 196; Cussen v. Southern California Sav. Bank, 133 Cal. 534, 65 Pac. 1099, 85 Am. St. Rep. 221. See, also, Lock- wood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68, 50 N. T. Supp. 974, 72 Am. St. Rep. 206, note; Guaranty Trust Co. v. Diltz, 42 Tex. Civ. App. 26, 91 S. W. 596. 4 s Gregg v. Hilson, 8 Phila. (Pa.) 91. Said Sharswood, J.: "The contents of the safe are in actual possession of the renter of the safe. They have not been deposited with or demised to the company." See, also, United States v. Graff, 67 Barb. (N. Y.) 304. 44 123 N. Y. 57, 25 N. E. 294, 9 L. R. A. 438, 20 Am. St. Rep. 718. 45 SAFE DEPOSIT CO. OF PITTSBURGH v. POLLOCK, 85 Pa. 391, 27 Am., Rep. 660, Dobie Cas. Bailments and Carriers, 101. 168 BAILMENTS FOE MUTUAL BENEFIT HIRED SERVICES (Ch. 6 seems hardly open to question, but whether. the transactions in- volved were bailments is quite another question.* 6 In view of the considerations mentioned, it seems that the rela- tion in question is not that of bailor and bailee, nor that of land- lord and tenant, nor yet that of master and servant, but is rather 1m anomalous combination of the three. 47 The similarity between safe-deposit companies and bailees seems to lie in the fact that the former by express contract assume certain duties which, in the case of the latter, are imposed by law, when there is no express contract, as being implicit in the bailment relation. It should be noted, though, that when (as is usually the case) ordinary care is the measure of the company's duty, either as arising from express contract or being implied from custom and usage, this term here involves a high measure of diligence and watchfulness. 48 This follows from the fact that the very nature of the business im- plies that the property in the drawers or boxes is usually of small bulk and comparatively great value, thus offering an unusual temp- tation to the most skilled criminals. SAME— FACTORS OR COMMISSION MERCHANTS The factor, or commission merchant, as he is frequently called, is one who makes a business of selling goods sent to him by others *« In Jones v. Morgan, 90 N, Y.-4, 43 Am. Eep. 131, it appeared that plain- tiff had rented a room in a storehouse from defendant, who contracted to guard it. The door to the room had two locks, the key of one of which was kept by plaintiff. The property was stolen from the room, and, in an action for damages, plaintiff contended that the defendant was a bailee, while the defendant claimed that the relation was that of landlord and tenant The court said that the relation was one of bailment, though it was not neces- sary to a decision of the case. The case was likened to that of one who hires a box in a safe-deposit company. The defendant was held liable on his con- tract, irrespective of whether it created a bailment. In Peers v. Sampson, 4 Dowl. & K. (Eng.) 636, where a room was hired in which to store goods, the key being kept by the hirer, it was held that the owner of the house was not liable for a theft of the goods by his servant, on the ground that the goods had never been delivered to him for safe-keeping. See, also, East India Co. v. Pullen, 1 Strange (Eng.) 690. *i See Van Zile, Bailm. & Carr. § 196: "It would appear that the relation is not that of bailor and bailee in the full meaning of that relation, but that It answers more nearly to that of landlord and tenant, or of leasing space in the deposit vault or banking house." Says Street (2 Found. Leg. Liab. p. 291): "It is clear that this is not a bailment. The company does not have possession, and there is no delivery. The liability of the company must therefore be determined entirely by the contract and usages of business in- cident to carrying it out." , *» See cases cited in preceding notes. § 67) OFFICEBS CHABGED WITH THE CUSTODY OF PUBLIC FUNDS 169 for that purpose.* 9 He differs from the broker, in that he has pos- session of the goods to be sold. 60 Thus the factor is at the same time a bailee in possession of the goods, 61 and also an agent author- ized to make a binding sale of them to a third person. In his role of bailee, the factor is governed by the general principles of bail- ments, which here present in their application no unique difficulty. As an agent with a power of sale, the factor gives more trouble (both to judges and to those with whom he deals) ; but the ques- tions raised here belong more properly to a work on Agency. 62 Just as other bailees for mutual benefit, to which class the fac- tor belongs by virtue of his commission, the factor is bound to use good faith and ordinary care; but, if these be exercised, he is not responsible for either loss of, or damage to, the goods. 58 The factor is also in the favored class of bailees having a general lien. He can therefore hold the goods of his bailor in his posses- sion to secure a general balance due to him from such bailor aris- ing out of a series of factorage transactions. 81 SAME— OFFICERS CHARGED WITH THE CUSTODY OF PUBLIC FUNDS Public officers, charged with the custody of public funds, fall within the definition of bailees for hire. 56 In England these seem *» Black, Law Diet. p. 476; Howland v. 'Woodruff, 60 N. Y. 80; In re Rabe- nau (D. C.) 118 Fed. 474 ; Ruffner v. Hewitt, 7 W. Va. 585. In some states factors are defined by statute. See, for example, Civ. Code Cal. § 2026. bo Delafield v. Smith, 101 Wis. 664, 78 N. W. 170, 70 Am. St Rep. 938; Edwards v. Hoeffinghoff (C. C.) 38 Fed. 641. 5i Substantially a warehouseman. «2 See Mechem on Agency, §§ 986a-1052. « Ives v. Freisinger, 70 N. J. Law, 257, 57 Atl. 401; Roberts v. Cobb, 76 Minn. 420, 79 N. W. 540; Weaver v. Poyer, 70 111. 567; Dunbar v. Gregg, 44 111. App. 527; Bogert v. Dorsey, 14 La. 430; Jervis v. Hoyt, 2 Hun (N. Y.) 637. They are at liberty to act according to the general usages of trade, and to give credit on sales, wherever that is customary. They are bound, however, in all cases, to follow the lawful instructions of their principals. If they act with reasonable diligence and good faith, they are protected. In cases of unforeseen emergency and necessity, they may even act contrary to the general tenor of the instructions of their principal, if those instructions are manifestly applicahle to ordinary circumstances only. But good faith alone is not sufficient. There must be reasonable skill, and a careful obedience to orders, on their part. Ante, 1 19. Ch. T) BAILMENTS FOB MUTUAL BENEFIT — PLEDGEB 173 CHAPTER VII BAILMENTS FOR MUTUAL BENEFIT— PLEDGES 70. Definitions and Distinctions. 71. The Nature of the Relation. 72. The Title of the Pledgor. 73. What May be Pledged. 74. Delivery. 75. Rights and Duties of the Pledgor. 76. Rights and Duties of the Pledgee as Affected by Pledgor's Default 77. Rights and Duties of the Pledgee Before Default — Assignability of the Pledgee's Interest 78. Relative Title Acquired by the Pledgee. 79. Special Property of Pledgee in Pledged Goods — Right to Bring Suit. 80. Right to Use the Pledged Goods. 81. Profits of the Thing Pledged. 82. Expenses About the Thing Pledged. 83. Degree of Care Required of the Pledgee. 84. Redelivery of the Pledged Goods. 85. Rights and Duties of the Pledgee After Default — In General. 86. Holding the Pledged Goods. 87. Suit on the Debt or Engagement Secured. 88. Sale of the Pledged Goods. 89. Termination of the Pledge. DEFINITIONS AND DISTINCTIONS 70. A pledge or pawn is a bailment to secure the payment of a debt, or the performance of an engagement, accompanied by a power of sale in case of default Historical The practice of giving possession of a chattel by the owner to another to secure a debt or to insure the performance of some en- gagement is of great antiquity, and laws governing such pawns or pledges are to be found among all the nations of ancient times. Thus more or less elaborate provisions on this subject are found in the Israelitic code of Moses, 1 the monumental Babylonian code i Thus provisions are found in the earliest of these codes, in the Book of the Covenant, a part of the so-called JE Code. "If thou at all take thy neighDor's raiment to pledge, thou shalt deliver it unto him by that the sun goeth down." Exodus, xxii, 26. Further humanitarian restrictions are found in the code of Deuteronomy. Deut xxiv, 6, 10-13. 174 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 of Hammurabi 2 and in other codes of the Orient.* In England, the law of pledges was of little practical importance until 1546, when, for the first time, the taking of interest on money loans was made legal. Since then, however, the English law of pledges has received a tremendous development, and to-day, both in England and the United States, the pledge is among the most frequent and important of commercial transactions. Pawnbrokers are those who make a business of loaning money on the security of corporeal property, 4 rather than incorporeal prop- erty, such as corporate stock. In many countries, as in France, the business of pawnbroking is carried on as a public institution, so that money may be borrowed by the poor at a reasonable rate of interest. In England and in the United States, however, it is car- ried on, just as any other enterprise, by individuals; but in almost all of the states of this country the business is to a greater or less degree regulated by special statutes. 6 Definitions As in the case of other bailments, many and various definitions of a pledge or pawn have been given. Those that follow are among the most important. Lord Holt e defines it as existing "when goods or chattels are delivered to another, to be a security to him for money borrowed of him by the bailor." By Sir William Jones T it is defined to be "a bailment of goods by a debtor to his creditor, to be kept by him till his debt is discharged." Both of these defi- nitions, however, are faulty in two respects. First, they fail to rec- ognize the fact that the pledge need not be solely to secure the payment of money, but it may be created for the purpose of insur- ing the performance of any other lawful engagement on the part of the bailor, or even to secure the undertaking of a third party, on whose account the bailor has made the bailment ; and, secondly, neither states that there is in a pledge an implied power of sale 2 See Cook, The Laws of Moses and the Code of Hammurabi, p. 232 et seq. According to Lee, Historical Jurisprudence, p. 30,' "the Babylonians pledged property of every description." » Pledges were known to the early law of Egypt. See Lee, Historical Ju- risprudence, pp. 71-74. The same is true of India. Lee, pp. 146-150. * City of Chicago v. Hulbert, 118 111. 632, 8 N. B. 812, 59 Am. Rep. 400 1 Schaul v. City of Charlotte, 118 N. C. 733, 24 S. E. 526. See, also, Rev. St Ohio 1880, § 4387. » These statutes usually cover the rate of interest which a pawnbroker may charge and the formalities of a sale of the pledged article. A typical statute is that of Virginia. Pollard's Va. Code 1904, vol. 2, pp. 2232-2235. « In COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 913, Dobie Cas. Bail- ments and Carriers, X. t Bailm. § 35. § 70) DEFINITIONS AND DISTINCTIONS 175 on default.- This implied power of sale is an important element in distinguishing a pledge from other transactions that lie close to it, such, for example, as a lien. The definitions of more modern writers are given in the notes. 8 In a number of states, pledges have been denned by statute. Thus, in California, "a pledge is a deposit of personal property by way of security for the performance of another act." " And this definition has been copied by the codes of North Dakota, 10 South Dakota, 11 and Montana. 12 Other definitions are found in other codes. 13 Lien, Pledge, and Chattel Mortgage Distinguished "Pledges are most nearly allied to liens and to chattel mortgages. It therefore becomes necessary to distinguish clearly between them. The lien and pledge are similar, in that the general property or ownership of the goods does not pass either to the lienholder or to the pledgee, but in each case a special.property in the goods does. « Thus Story (Bailm. § 286) defines a pledge broadly as "a bailment of per- sonal property as security for some debt or engagement" Substantially sim- ilar is Mr. Schouler's definition, as "the bailment of a chattel as security for some debt or engagement." Judge L. A. Jones (Jones on Collateral Se- curities [3d Ed.] § 1) defines a pledge as "a deposit of personal property as security, with an implied power of sale on default." See, also, Black, Law Diet. "Pledge," p. 905; 31 Cyc. 785, and note, giving various definitions. In the Roman law a pledge or pawn is called "pignus," but it was the rule of the civil law that a pledge could never be sold, unless authorized by spe- cial agreement, except under a judicial sentence; and this appears to be the law at this day in many countries in Europe, and it was the rule in the old English law in the time of Glanville. Lib. 10, cc. 1, 6; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62. In the Roman law, also, a pawn (pignus) was distinguished from a hypothecation (hypotheca), in this: That in the former alone was the possession delivered to the pledgee; in the latter, it was retained by the pledgor, and was thus not a bailment at all. However, the words "pignus" and "hypotheca" seem often to have been confounded. See, also, Jackson v. Kincaid, 4 Okl. 554, 46 Pac. 58T; FIRST NAT. BANK OF PARKERSBURG v. HARKNESS, 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408, Dobie Oas. Bailments and Carriers, 109; Farson v. Gilbert, 114 111. App. 17. » Civ. Code Cal. 1906, § 2986. io Rev. Codes N. D. 1905, §§ 6193, 6194. ii Civ. Code, § 2104. 12 Civ. Code 1895, §§ 3890, 3891 (Rev. Codes, §§ 5774, 5775). is Thus in Georgia (Code Ga. 1882, § 2138), the following definition is given: "A pledge or pawn is property deposited with another as security for the payment of a debt. Delivery of the property is essential to this bail- ment, but promissory notes and evidences of debt may be delivered in pledge. The delivery of title deeds creates no pledge." The Louisiana law is that "the pledge is a contract by which one debtor gives something to his creditor as a security for his debt." Rev. Civ. Code La. 1870, art. 3133. See, also, 1 Stimson, Am. Stat. Law, p. 520. 176 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 The two transactions, however, present two striking points of dif- ference : First, the rights of the lienholder are personal to him, and he may not transfer them to a third person ; " while, in the case of a pledgee, his interest is freely assignable, even without the con- sent of the pledgor. 15 Secondly, though the lienholder can hold the goods against all the world, until the debt secured by the lien is paid, his rights at common law are limited to such a holding, and he has (in the absence of a statute to that effect) no power to sell the goods to which his lien attaches ; ie while one of the most important incidents of the pledge is the power of the pledgee to sell the goods on the default of the pledgor. 17 In the case of a chattel mortgage, the legal title to the thing passes to the mortgagee, 18 either with or (what is probably more frequent) without possession passing to the mortgagee. But this legal title oftRTmortgagee will ,be defeated on the payment of the debt within the stipulated time by the mortgagor. 19 In the case of a pledge, the title to the goods remains in the pledgor, 20 while possession of the goods 21 and a special property 22 therein pass to n Upon this point it was said by Lord Ellenborough, C. J., in McCombie v. Davies, 7 East (Eng.) 6, that "nothing could be clearer than that liens were personal, and could not be transferred to third persons by any tortious pledge of the principal's goods." If the one having the lien parts with the posses- sion of the goods, unless, indeed, to one who is his own agent, and with the intent that such agent shall have merely the custody of them, he thereby loses his lien. See the opinions of Cockburn, C. J., in Donald v. Suckling, L. R. 1 Q. B. (Eng.) 585, 617, and Buller, J., in the celebrated case of Lickbarrow v. Mason, 6 East (Eng.) 21. is See post, § ,77. i8 Chief Justice Gibbs, in Pothonier v. Dawson, Holt, N. P. (Eng.) 383, 385, said: "Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods. But, when goods are deposited by way of security to in- demnify a party against a loan of money [a pledge], * * * the lender's rights are more extensive than such as accrue under an ordinary lien in the course of trade." In order to sell, the lienor must resort to a judicial pro- ceeding and sell under a decree from the court i» See post, g 88. is Walker v. Smith, 5 B. & Aid. (Eng.) 439; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202; FIRST NAT. BANK OF PARKERSBURG v. HARKNESS, 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408, Dobie Cas. Bailments and Car- riers, 109; Palmer v. Mutual Life Ins. Co. of New York, 114 Minn. 1, 130 N. W. 250, Ann. Cas. 1912B, 957. is Jones, Chattel Mortgages (5th Ed.) § 426; Lickbarrow v. Mason, 6 East (Eng.) 22 ; Sheridan v. Presas, 18 Misc. Rep. 180, 41 N. Y. Supp. 451 ; Union Trust Co. v. Rigdon, 93 111. 458. 2° This is involved in the definition of a pledge, and constitutes the chief distinction between a pledge and a sale. Unless the title thus remained in the pledgor, the pledge would not be a bailment See, also, Harding v. Eldridge, 186 Mass. 39, 71 N. E. 115. ai Post, § 74. « Post, § 79. § 70) DEFINITIONS AND DISTINCTIONS 177 the pledgee. However, until the expiration of the time within which the pledgor may regain possession of the goods by the payment of his debt or the performance of his engagement, the pledgee is nothing more than a bailee of the goods. 23 In other words, the situation (before default by the debtor) is this : In a chattel mort- gage, a defeasible title must pass, and possession of the chattel either may or may not pass; in a pledge, no title passes, but pos- session and a special property in the chattel must pass. Again: After default by the debtor in a chattel mortgage, the title of the mortgagee (hitherto defeasible) now becomes absolute at law " (though the mortgagor ordinarily has a right in equity to redeem) ; but, in a pledge, default by the debtor never confers an absolute title in the chattel on the pledgee, but merely operates to give him the right to sell the chattel. 25 In cases in which it is not clear whether the transaction in ques- tion is a mortgage or a pledge, it will, if the facts will bear out such "Post, § 76. 2* LickbarroW v. Mason, 6 East (Eng.) 21, 25; Sims v. Canfield, 2 Ala. 555; Brown v. Bement, 8 Johns. (N. Y.) 96; McLean v. Walker, 10 Johns. (N. Y.) 471; Eastman v. Avery, 23 Me. 248; Day v. Swift, 48 Me. 368; Gleason v. Drew, 9 Greenl. (Me.) 79, 82; Haven v. Low, 2 N. H. 13, 9 Am. Dec. 25; Ash v. Savage, 5 N. H. 545 ; Lewis v. Stevenson, 2 Hall (N. Y.) 76, 98 ; Homes v. Crane, 2 Pick. (Mass.) 607, 610 ; Ward v. Sumner, 5 Pick. (Mass.) 59, 60 ; Bonsey v. Amee, 8 Pick. (Mass.) 236. 25 Said Willes, J., distinguishing the lien, chattel mortgage, and pledge in Halliday v. Holgate, L. R. 36 Ch. (Eng.) 299, 302: "There are three kinds of security: The first, a simple lien; the second, a mortgage, passing the property out and out; the third, a security intermediate between a lien and a mortgage, viz., a pledge, where by contract a deposit of goods is made the security for a debt, and the right to the property vests in the pledgee so far as 'is necessary to secure the debt." See, also,. Palmer v. Mutual Life Ins. Co. of New York, 114 Minn. 1, 130 N. W. 250, Ann. Cas. 1912B, 957; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202; FIRST NAT. BANK OF PARKERSBURG v. HARKNESS, 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408, Dobie Cas. Bailments and Carriers, 109; Jones v. Smith, 2 Ves. Jr. (Eng.) 372; Ryall v. Rolle, 1 Atk. (Eng.) 165; Cortelyou v. Lansing, 2 Caines, Cas. (N. Y.) 200; Barrow v. Paxton, 5 Johns. (N. Y.) 258, 4 Am. Dec. 354; Strong v. Tompkins, 8 Johns. (N. Y.) 98; McLean v. Walker, 10 Johns. (N. Y.) 471; Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307; Haskins v. Kelly, 1 Rob. (N. Y.) 160; Parshall v. Eggart, 52 Barb. (N. Y.) 367; Win- chester v. Ball, 54 Me. 558 ; Walcott v. Keith, 22 N. H. 196; Whittle v. Skin- ner, 23 Vt. 531; Wright v. Ross, 36 Cal. 414; Heyland v. Badger, 35 Cal. 404; Dewey v. Bowman, 8 Cal. 145; Waldie v. Doll, 29 Cal. 556; Goldstein v. Hort, 30 Cal. 372 ; Gay v. Moss, 34 Cal. 125 ; Ponce v. MeElvy, 47 Cal. 154 ; Meyer- stein v. Barber, L. R. 2 C. P. (Eng.) 38, 51: Id., L. R. 4 H. L. 317; Ratcliff v. Da vies, Cro. Jac. (Eng.) 244; Tannahill v. Tuttle, 3 Mich. 104, 61 Am. Dec. 480 ; Bryson v. Rayner, 25 Md. 424, 90 Am. Dec. 69. Dob.Bailm. — 12 178 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 a construction, be held to be a pledge. 28 This is sometimes a nice question, and in solving it the courts will look to the real intention and understanding of the parties rather than to the name used by ■ the parties themselves to designate the transaction. Since in a pledge possession must pass, while in a chattel mortgage it either may or may not pass, where personal property is given as security for a debt or engagement, accompanied by a change of possession, the law strongly favors the conclusion that it was intended as a pledge and not as a mortgage. 27 Sale and Pledge Distinguished The distinction between a sale, in which the title or ownership of goods passes, and a bailment, in general, was pointed out at some length in the first chapter. 28 An absolute bill of sale, however, accompanied by a delivery of the goods, may be shown, even by parol evidence, to be only a pledge, if such was the intention of the parties. 29 The necessity of distinguishing between a sale and a so Bank of British Columbia v. Marshall (C. O.) 11 Fed. 19; Woodworth v. Morris, 56 Barb. (N. Y.) 97. 27 Luckett v. Townsend, 3 Tex. 119, 49 Am.' Dec. 723; Wilson v. Brannan, 27 Cal. 258, 271; Lewis v. Varnum, 12 Abb. Prac. (N. Y.) 305, 308; Warren v. Emerson, 1 Curt 239, 241, Fed. Cas. No. 17,195; West v. Crary, 47 N. Y. 423, 425; Woodworth v. Morris, 56 Barb. (N. Y.) 97, 104; Bank of British Columbia v. Marshall (C. C.) 11 Fed. 19. A pledge need not be recorded as a chattel mortgage. First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34; Parshall v. Eggert, 54 N. Y. 18; Griffin v. Rogers, 38 Pa. 382; McCready v. Haslock, 3 Tenn. Ch. 13; Shaw v. Wilshire, 65 Me. 485; Harris v. Birch, 9 Mees. & W. (Eng.) 591; Ward v. Sumner, 5 Pick. (Mass.) 59; Wright v. Bircher, 5 Mo. App. 322; Langdon v. BueL 9 Wend. (N. Y.) 80; Atwater r. Mower, 10 Vt. 75. as Ante, § 3. 2» Barber v. Hathaway, 169 N. Y. 575, 61 N. E. 1127; Skenandoa Cotton Mills v. Lefferts, 59 Hun, 620, 13 N. Y. Supp. 33; Thompson v. Dolliver, 132 Mass. 103; Oakland Cemetery Ass'n v. Lakins, 126 Iowa, 121, 101 N. W. 778, 3 Ann. Cas. 559; Keeler v. Commercial Printing Co., 16 Wash. 526, 48 Pac. 239; Walker v. Staples, 5 Allen (Mass.) 34; Whitaker v. Sumner, 20 Pick. (Mass.) 399 ; Hazard v. Loring, 10 Cush. (Mass!) 267 ; Kimball v. Hildreth, 8 Allen (Mass.) 167; Bright v. Wagle, 3 Dana (Ky.) 252; Ex parte Fitz, 2 Lowell, 519, Fed. Cas. No. 4,837 ; Newton v. Fay, 10 Allen (Mass.) 505 ; Jones v. Rahilly, 16 Minn. 320 (Gil. 283); Shaw v. Wilshire, 65 Me. 485; Morgan v. Dod, 3 Colo. 551; Blodgett v. Blodgett, 48 Vt. 32. See, also, Colburn v. Commercial Security Co., 172 111. App. 510. But there may be a conditional bill of sale, which will be a mortgage when such is the intention of the parties. Brown v. Bement, 8 Johns. (N. Y.) 96; Clark v. Henry, 2 Cow. (N. Y.) 324; Milliken v. Dehon, 27 N. Y. 364; Homes v. Crane, 2 Pick. (Mass.) 607; Fraker v. Reeve, 36 Wis. 85; Wood v. Dudley, 8 Vt. 430; Murdock v. Columbus Ins. & Banking Co., 59 Miss. 152; Gregory v. Morris, 96 U. S. 619, 24 D. Ed. 740; Laflin & R. Powder Co. v. Burkhardt, 97 V. S. 110, 24 L. Ed. 973. In the same way, a bill of sale, with an agreement to repurchase, may be either a pledge or chattel mortgage, according to the circumstances and intention § 71) THE NATURE OP THE RELATION 179 pledge often arises when goods or securities are assigned by a debtor to a creditor. 80 Here, in doubtful cases, the law always leans towards the presumption that the transfer was intended by the debtor merely as a pledge created as security for the indebtedness and not as an absolute transfer of title to the goods in payment of the debt. 81 Collateral Security The term "collateral security" has come into quite frequent use of late to designate pledges of incorporeal personalty, and, when so used, it distinguishes in general the business of the banker from that of the pawnbroker. 32 As thus used, the term is convenient . and unobjectionable. Unfortunately, however, it is loosely ap- plied to mortgages either of realty or personalty, and is often improperly used in still other senses. 88 THE NATURE OF THE RELATION 71. In addition to those circumstances that are essential to any bail- ment, for the establishment of a pledge there must be: (a) Mutual assent of the parties. (b) A debt or engagement secured. Pledges must Arise out of Contract Pledges cannot be created by operation of law, as such a situ- ation is precluded by their very nature. They can therefore arise only by the mutual assent of the parties, express or implied, 84 As a pledge is, of course, a bailment, what has already been said of the parties. Hines v. Strong, 46 How. Prac. (N. Y.) 97; Bright v. Wagle, 3 Dana (Ky.) 252. so Standen v. Brown, 83 Hun, 610, 31 N. J^jSupp. 535. si Delaware County Trust, Safe Deposit 4?*Title Ins. Co. v. Haser, 199 Pa. 17, 48 Att. 694, 85 Am. St.. Rep s 76§ ; Butler v. Rockwell, 14 Colo. 125, 23 Pac. 462; Jones v. Johnson, 3 Watts & S. (Pa.) 276, 38 Am. Dec. 760; Perit v. Pittfield, 5 Rawle (Pa.) 166; Leas v. James, 10 Serg. & R. (Pa.) 307; Eby v. Hoopes, 1 Penny. (Pa.) 175. sa Jones, Collateral Securities (3d Ed.) § 1 ; Brooklyn City & N. K. Co. v. National Bank of the Republic, 102 U. S. 14, 26 L. Ed. 61; In re Athill, L. R. 16 Ch. D. (Eng.) 211, 223; Mitchell v. Roberts (C. C.) 17 Fed. 776. sa Penney v. Lynn, 58 Minn. 371, 59 N. W. 1043; Chambersburg Ins. Co. v. Smith, 11 Pa. 120, 127. This broad definition is also given by Black, Bouvier, Webster, and Worcester. 84 Mead v. Bunn, 32 N. Y. 275; Taylor v. Jones, 3 N. D. 235, 55 N. W. 593; Wilkinson v. Misner, 158 Mo. App. 551, 138 S. W. 931; Farson v. Gilbert, 114 111. App. 17. 180 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ch. 7 of contracts creating a bailment is equally applicable here. 8 " In connection with pledges, the general rules of agency, partnership, and corporations also are frequently applied. Nature of the Debt or Engagement Secured In a pledge, unlike all other bailments, the bailment is created, not for itself alone, but in order to secure the performance of some other undertaking. This undertaking which the pledge is created to secure is determined by the contract of the parties and varies accordingly. It is immaterial whether the debt or engagement for which the security is given is that of the pledgor, or of some other person; for, if there is an assent by all the proper parties, it is equally binding in each case. 36 It may be delivered as security for a future 8T as well as for a past 88 debt or engagement; for one or for many debts and engagements; 89 upon condition, or absolutely; for a limited time, or for an indefinite period. 10 A pledge may as Ante, § 8. so A liability for another on a contract still in force is a sufficient consid- eration for a pledge, and the ratio of the consideration to the value of the thing pledged is of no importance. Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74. When a third person pledges his property as security for the pay- ment of a debt or obligation of another, such property will occupy the same position as that of surety of the debtor, and any change in the contract of suretyship which would discharge a surety will release and discharge prop- erty so held as collateral. Price v. Dime Sav. Bank, 124 111. 317, 15 N. E. 754, 7 Am. St. Rep. 367. The drawer of a note can pledge property to secure an accommodation acceptor, and also to protect the future holder of the note. Britton v. Harvey, 47 La. Ann. 259, 16 South. 747. 3 7 Brown v. James, 80 Neb. 475, 114 N. W. 491; Moors v. Washburn, 147 Mass. 344, 17 N. E. 884 ; Didier v. Patterson, 93 Va. 534, 25 S. E. 661; Leonard v. Kebler's Adm'r, 50 Ohio St. 444, 34 N. B. 659; Merchants' Nat. Bank of Savannah v. Demere, 92 Ga. 735, 19 S. E. 38; Clymer v. Patterson, 52 N. J. Eq. 188, 27 Atl. 645. Or for future advances. Merchants' Nat Bank of Whitehall v. Hall, 83 N. T. 338, 38 Am. Rep. 434 ; Stearns v. Marsh, 4 Denio (N. X.) 227, 47 Am. Dec. 248; Badlam v. Tucker, 1 Pick. (Mass.) 389, 398, 11 Am. Dec. 202: Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74; Macomber v. Parker, 14 Pick. (Mass.) 497; Holbrook v. Baker, 5 Greenl. (Me.) 309, 17 Am. Dec. 236; Eichelberger v. Murdock, 10 Md. 373, 69 Am. Dec. 140; Wolf v. Wolf, 12 La. Ann. 529; Smithurst v. Edmunds, 14 N. J. Eq. 408; D'Wolf v. Harris, 4 Mason, 515, Fed. Cas. No. 4,221; Conard v. Atlantic Ins. Co., 1 Pet. 386, 448, 7 L. Ed. 189. as Conard v. Atlantic Ins. Co., 1 Pet. (TJ. S.) 386, 448, 7 L. Ed. 189; Stearns v. Marsh, 4 Denio (N. T.) 227, 47 Am. Dec. 248; Badlam v. Tucker, 1 Pick. (Mass.) 389, 398, 11 Am. Dec. 202; Holbrook v. Baker, 5 Greenl. (Me.) 309, 17 Am. Dec. 236; D'Wolf v. Harris, 4 Mason, 515, Fed. Cas. No. 4,221; Hano- ver Nat. Bank v. Brown (Tenn. Ch. App.) 53 S. W. 206. 88 Mechanics' & Traders' Bank v. Livingston, 6 Misc. Rep. 81, 26 N. Y. Supp. 25 ; Jones v. Merchants' Nat Bank, 72 Hun, 344, 25 N. T. Supp. 660. *o Shirras v. Caig, 7 Cranch, 34, 3 L. Ed. 260 ; Hendricks v. Robinson, 2 Johns. Ch. (N. T.) 283, 309; Stevens v. Bell, 6 Mass. 339. § 71) THE NATURE OF THE RELATION 181 also be made a continuing security, which will apply to any future transaction between the parties that is within the limits of the original pledge agreement.* 1 The contract secured by the pledge is not confined to an engagement for the payment of money; but a pledge is susceptible of being applied to any other lawful contract whatever. Pledges to secure contracts other than for the payment of money, however, are quite rare. In all cases the pledge is understood to be a security both for the whole and for every part of the debt or engagement, unless it is otherwise stipulated between the parties. The payment or dis- charge of a part of the debt or engagement, therefore, still leaves it a perfect pledge for the residue. 42 The pledge may, however, be created to secure a part only of a debt.* 8 When new agreements are made, which are clearly intended by the parties, either tacitly or expressly, to be attached to the pledge, the pledgee has, of course, a title and right of possession as to the pledged goods coextensive with the new engagements.** But neither the mere existence of a former debt * B between the parties nor the creation of a future one * 6 authorizes the pledgee to detain *i Fidelity Mut. Life Ins. Co. v. Germania Bank, 74 Minn. 154, 76 N. W. 968; Merchants' Nat. Bank of Whitehall v. Hall, 83 N. Y. 338, 38 Am. Rep. 434; Norton, v. Plumb, 14 Conn. 512. *2 Baldwin v. Bradley, 69 111. 32 ; Ellis v. Conrad Seipp Brewery Co., 2Q7 111. 291, 69 N. E. 808 ; Williams v. National Bank of Baltimore, 72 Md. 441, 20 Atl. 191. *8 Fridley v. Bowen, 103 111. 633, 637. 4* Moors v. Washburn, 147 Mass. 344, 17 N. E. 884; Smith v. Denison, 101 111. 531. 40 Jarvis v. Rogers, 15 Mass. 389; Allen v. Megguire, 15 Mass. 490; Robin- son v. Frost, 14 Barb. (N. T.) 536; President, etc., of Neponset Bank v. In- land, 5 Mete. (Mass.) 259; James' Appeal, 89 Pa. 54; Russell v. Hadduck, 3 Gilman (111.) 233, 238, 44 Am. Dec. 693; Baldwin v. Bradley, 69 111. 32; St. John v. O'Connel, 7 Port. (Ala.) 466 ; Gilliat v. Lynch, 2 Leigh (Va.) 493 ; Mahoney v. Caperton, 15 Cal. 314 ; Bank of Metropolis v. New England Bank, 1 How. 234, 11 L. Ed. 115; Boughton v. United States, 12 Ct. CI. 330; Thomp- son v. Dominy, 14 Mees." & W. (Eng.) 403 ; Vanderzee v. Willis, 3 Brown, Ch. (Eng.) 21; Brandao v. Barnett, 3 C. B. (Eng.) 519, 530; In re Meadows, 28 Law J. Ch. (Eng.) 891; Walker v. Birch, 6 Term R. (Eng.) 258; Rushforth v. Hadfleld, 7 East (Eng.) 224; Green v. Farmer, 4 Burrows (Eng.) 2214; Buckley v. Garrett, 60 Pa. 333, 100 Am. Dec. 564; Philler v. Jewett, 166 Pa. 456, 31 Atl. 204. Where a judgment is given as collateral security for a note which is afterwards paid, a parol agreement between the creditor and the agent of the debtor to continue such judgment as security for certain other notes of the debtor is valid against subsequent judgment creditors of such debtor' without notice. Merchants' Nat. Bank v. Mosser, 161 Pa. 469, 29 Atl. 1. 4« Midland Co. v. Huchberger, 46 111. App. 518; Searight v. Carlisle Deposit Bank, 162 Pa. 504, 29 Atl. 783; Baldwin v. Bradley, 69 111. 32; Adams v. Sturges, 55 111. 468; Gilliat v. Lynch, 2 Leigh (Va.) 493. Of course, such new loan is secured by the goods already pledged when the new loan was made 182 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 1 the pledged good.s as a' security for such past or future debt, when the goods have been put into his hands for another debt or con- tract, unless there is some just presumption that such was the intention of the parties. If the debt secured bears interest, the pledge secures the payment not only of the principal but also of such interest.* 7 And when a pledge is made it continues effectual until the debt secured is paid or discharged, notwithstanding the evidence of the debt is changed from a promissory note to a judg- ment of a court of record thereon. 48 Ordinarily the pledge secures any renewal of the original debt.* 8 Legality of the Debt or Engagement Secured Even though the debt which the pledge is given to secure is void on account of illegality of consideration, the pledge is nevertheless effectual. The pledgee, of course, cannot recover on the debt itself, yet he can retain the pledge until the debt is paid. 60 ' This is on the ground, not that the law in such case confers a positive right on the pledgee, but rather denies the pledgor, under the principle "in pari delicto potior est conditio defendentis," the privilege of setting up an illegal transaction to which he was himself a party, in order to recover goods, the possession of which he has transferred to another by virtue of such illegal transaction. 61 The pledgor cannot, therefore, recover possession of the goods without paying the debt, because in order to establish his case he would have to set up his own wrong. When, however, the pledgor pays or tenders the amount of the illegal debt to the pledgee, the latter must deliver up the goods. 62 The pledgee would not be al- on the credit of the pledge. Van Blarcom v. Broadway Bank, 9 Bosw. (N. T.) 532; Id., 37 N. T. 540; Smith v. Dennison, 101 111. 531; Buchanan v. In- ternational Bank, 78 111. 500. 47 Boardman v. Holmes, 124 Mass. 438 ; Charles v. 'Coker, 2 S. C. 122 ; Hamilton v. Wagner, 2 A. K. Marsh. (Ky.) 331. « Robinson & Co. v. Stiner, 26 Okl. 272, 109 Pac. 238 ; Fisher v. Fisher, 98 Mass. 303; Jenkins v. International Bank, 111 111. 462; Everman v. Hyman, 3 Ind. App. 459, 29 N. E. 1140; Jones v. Scott, 10 Kan. 33. *8 Cotton v. Atlas Nat. Bank, 145 Mass. 43, 12 N. E. 850 ; Miller v. Mc- Carty, 47 Minn. 321, 50 N. W. 235, 28 Am. St. Rep. 375; First Nat. Bank of Emmetsburg v. Gunhus, 133 Iowa, 409, 110 N. W. 611, 9 L. R. A. (N. S.) 471. oo King v. Green, 6 Allen (Mass.) 139. si Taylor v. Chester, L. R. 4 Q. B. (Eng.) 309 (pledge to secure debt con- tracted for wine and suppers supplied in a bawdyhouse) ; King v. Green, 6 Allen (Mass.) 139 (pledge of watch to secure payment of an illegal debt incurred for use of horse and wagon on Sunday). See, also, Curtis v. Leavitt, 15 N. T. 9; Beecher v. Ackerman, 1 Abb. Prac. N. S. (N. X.) 141; Roosevelt v. Dreyer, 12 Daly (N. Y.) 370. 62 Jones, Collateral Securities, § 354. See, also, the opinion of Mellor, J., in Taylor v. Chester, cited in the preceding note, though there the pledgor was suing to recover the pledged article without payment of the debt secured. § 72) THE TITLE OF THE PLEDGOR 183 lowed to retain the goods, on the ground that the debt for which the goods were pledged was an illegal one ; for the pledgee would then, in his turn, be compelled to set up his own wrong as the basis of his asserted right. THE TITLE OF THE PLEDGOR 72. The pledgor need not be the absolute owner of the goods ; but ordinarily he can pledge, just as he can sell, any assignable interest that he has. In the absence of statute, unauthorized attempts by factors or other agents to pledge the owner's goods will confer no rights as against such owner. Pledgor Need Not be Absolute Owner It is not necessary that the pledgor be the absolute owner of the thing pledged. 63 He may have only a limited interest therein, such as a life interest. 64 But when a thing is pledged by one hav- ing only such a limited interest, the pledgee acquires no right to sell the pledged goods on default, because to do so would divest the rights of the ultimate owner. 66 He can, however, sell whatever in- terest the pledgor has, and the purchaser in such case gets a mere right to hold the goods as long as the pledgor could have held them. 58 Even a pledgee may make a subpledge of his interest as pledgee. 67 ~— . However, one who has only a lien on a thing cannot make a valid pledge of it. If he attempts to do so, his pledgee cannot hold the thing against the owner, even for the amount of the lien. 68 This results from the rule that a lien is a personal right to retain pos- session, and cannot be assigned. In some states it is specifically provided by statute that a lienholder may pledge property in his 6 s McCombie v. Da vies, 7 East (Eng.) 5; Eddy v. Fogg, 192 Mass. 543, T8 N. E. 549; Kelly v. Richardson, 100 Ala. 584, 13 South. 785. But a partner cannot pledge partnership property as security for his private debts. Oli- phant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363. A joint owner in possession may pledge his own interest, but not that of the co-owner, without the latter's consent. Franfc v. Young, 24 Iowa, 375. s* Hoare v. Parker, 2 Term R. (Eng.) 376; Robertson v. Wilcox, 36 Conn. 426, 430. " Robertson v. Wilcox, 36 Conn. 426. so Eddy v. Fogg, 192 Mass. 543, 78 N. E. 549; Jones on Collateral Securities (3d Ed.) § 60. s' Lewis v. Mott, 36 N. Y. 395; Jarvis v. Rogers, 15 Mass. 389; McCombie v. Davies, 7 East (Eng.) 5, 7. 68 McCombie v. Davies, 7 East (Eng.) 5. 184 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 1 possession, to the extent of his lien, and a like result might follow when a statute in general terms makes liens assignable. "• Factors 60 Factors are agents employed by the owner to sell the goods which the owner delivers to them. 61 Since the factor has authority from his principal to sell, a sale of the goods by the factor passes a good title to the goods, according to the rules of agency. But 'the factor, ordinarily, has no authority to make a pledge of the goods delivered to him. 62 Therefore, in such a case, his attempt v to pledge the goods (being in excess of his authority) confers no rights on the pledgee as against the owner of the goods. But the authority to make a valid pledge may be conferred on the factor by the doctrine of estoppel, as when the owner in any way holds out the factor as one having such authority. 88 The rights of the parties "See Civ. Code Cal. 1906, § 2990; Rev. Codes N. D. 1905, { 6197; Civ. Code S. D. § 2108. so Foj discussion of pledges by factors, see Jones, Collateral Securities (3d Ed.) §§ 327-353. ei Black, Law Dictionary, p. 476; Howland v. Woodruff, 60 N. T. 80; In re Rabenau (D. C.) 118 Fed. 474. See, also, Civ. Code Cal. § 2026. «2 Morsch v. Lessig, 45 Colo. 168, 100 Pac. 431 ; Kennedy v. Strong, 14 Johns. (N. Y.) 128; Rodriguez v. Hefferman, 5 Johns. Ch. (N. Y.) 417; New- bold v. Wright, 4 Rawle (Pa.) 195; Kinder v. Shaw, 2 Mass. 398; Gray v. Agnew, 95 111. 315; Kelly v. Smith, 1 Blatchf. 290, Fed. Cas. No. 7,675; Van Amringe v. Peabody, 1 Mason, 440, Fed. Cas. No. 16,825; Warner v. Martin, 11 How. 209, 13 L. Ed. 667; First Nat. Bank of Macon v. Nelson, 38 Ga. 391, 95 Am. Dec. 400; Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196; Mer- chants' Nat. Bank of Memphis v. Trenholm, 12 Heisk. (Tenn.) 520; McCreary v. Gaines, 55 Tex. 485, 40 Am. Rep. 818 ; Paterson v. Tash, 2 Strange (Eng.) 1178; Daubigny v. Duval, 5 Term R. (Eng.) 604; Newsom v. Thornton, 6 East (Eng.) 17; Graham v. Dyster, 2 Starkie (Eng.) 21; Martini v. Coles, 1 Maule & S. (Eng.) 140; Shipley v. Kymer, Id. 484; Solly v. Rathbone, 2 Maule & S. (Eng.) 298; Cockran v. Irlam, Id. 301, note; Boyson v. Coles, 6 Maule & S. (Eng.) 14; Fielding v. Kymer, 2 Brod. & B. (Eng.) 639; Queiroz v. Trueman, 3 Barn. & C. (Eng.) 342; Bonito v. Mosquera, 2 Bosw. (N. Y.) 401. But cf. Hutchinson v. Bours, 6 Cal. 384; Leet v. Wadsworth, 5 Cal. 404; Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196; Miller v. Schneider, 19 La. Ann. 300, 92 .Am. Dec. 535; McCreary v. Gaines, 55 Tex. 485, 40 Am. Rep. 818 ; First Nat. Bank of Macon v. Nelson, 38 Ga. 391, 95 Am. Dec. 400. ea Leet v. Wadsworth, 5 Cal. 404, in which the factor purchased the goods in his own name, stored them, and paid storage in his own name. For other cases in which the owner, by clothing the factor with the indicia of owner- ship, lost his right to take the goods from the pledgee of the factor, see Calais S. .B. Co. v. Scudder, 2 Black 372, 17 L. Ed. 282 ; Babcock v. Lawson, 4 Q. B. Div. (Eng.) 394. Where an agent fraudulently misappropriates ne- gotiable collaterals deposited with him on a loan of the principal's money, the borrower offering to pay the loan at maturity, the principal is liable to him for the value of the collaterals at that time. Reynolds v. Witte, 13 S. C. 5, 36 Am. Rep. 678. A clerk or salesman has no power to pawn his employer's § 73) WHAT MAT BE PLEDGED 185 in all the cases given are governed by the general principles of agency. In a number of states, however, the rules of the common law as to factors have been changed by statute. These enactments, com- monly known as "Factors' Acts," " were passed for the protection of innocent third persons, and frequently enable such innocent third parties dealing with factors to take pledges of goods held by the latter, and, by so doing, acquire rights superior to those of the owner. 65 Even under these statutes, the real owner may recover the goods pledged by the factor by paying to the pledgee the amount of money he has advanced, or otherwise fulfilling the. undertaking secured by the factor's pledge of the goods. Factors' Acts protect only the innocent third person, and do not affect the remedies of the owner against the factor. 86 As the various acts differ greatly in scope and effect, the specific statute should in all cases be carefully consulted. WHAT MAY BE PLEDGED 73. Unless public policy or some statute forbids, any assignable interest in personal property, corporeal or incorporeal, may be pledged. assets as security for his own debts. Oliphant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363. But, for cases where it was held that the pledgor did not have sufficient indicia of ownership, see Agnew v. Johnson, 22 Pa. 471, 62 Am. Dec. 303 ; Gallaher v. Cohen, 1 Browne (Pa.) 43 ; Branson v. Heckler, 22 Kan. 610; Cox v. McGuire, 26 111. App. 315. An administrator or executor may make as to an innocent third person a valid pledge of the goods of the estate. Pickens v. Yarborough's Adm'r, 26 Ala. 417, 62 Am. Dec. 728; Carter v. Manufacturers' Nat Bank of Lewistown, 71 Me. 448, 36 Am. Rep. 338 ; Leitch v. Wells, 48 N. T. 585 ; Hutchins v. President, etc., of State Bank, 12 Mete. (Mass.) 421 ; Bayard v. Farmers' & Mechanics' Bank of Phila- delphia, 52 Pa. 232; Appeal of Wood, 92 Pa. 379, 37 Am. Rep. 694; Petrie v. Clark, 11 Serg. & R. (Pa.) 377, 14 Am. Dec. 636; Russell v. Plaice, 18 Beav. (Eng.) 21; Vane v. Rigden, L. R. 5 Ch. App. (Eng.) 663. «4 See Jones, Collateral Securities (3d Ed.) §§ 333-340. For specimens of factors' acts, see Civ. Code Cal. 1906, § 2368; Rev. Laws Mass. 1902, c. 68, §§ 1-6; 3 Birdseye's C. & G. Consol. Laws N. T. 1909, p. 3232, § 182 ; Gen. Code Ohio, |§ 8358-8362; Purdon's Dig. Pa. (13th Ed.) pp. 1608-1610; St. Wis. 1898, §§ 3345-3347. «. Jones, Collateral Securities, § 333; Allen v. St. Louis Nat. Bank, 120 U. S. 20, 7 Sup. Ct. 460, 30 L. Ed. 573; Wisp v. Hazard, 66 Cal. 459, 6 Pac. 1)1; New York Security & Trust Co. v. Lipman, 157 N. Y. 551, 52 N. E. 595 ; Cole v. Northwestern Bank, L. R. 10 C. P. (Eng.) 354; Henry v. Philadelphia Warehouse Co., 81 Pa. 76'. ' eo Stollenwerck v. Thacher, 115 Mass. 224. 186 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ch. 7 Any legal or equitable interest whatever in any form of personal property may be pledged, provided the interest can be put, by actual delivery or by written transfer, into the hands, or within the power, of the pledgee, so as to make such interest available to him for the satisfaction of the debt or engagement secured. 67 Goods at sea may be pledged by a transfer of the muniments of title, as by a written assignment of the bill of lading. This is equivalent to a transfer of possession, because it is a delivery of the symbols of the goods and the means of obtaining possession of them. 68 And debts and choses in action are also capable, by means of a written assignment, of being conveyed in pledge. 69 The common law, unlike the Roman law, 70 permits a debtor to pledge any of his goods, and it is immaterial whether or not these are necessary articles, such as one's household furniture or even the tools of one's trade. Thus even goods expressly exempted by stat- ute from execution may be pledged by the owner as security for the payment of his debts. 71 By pledging his property, the owner expressly waives the benefit of the exemption, as far as the pledge in question is concerned. As a pledge is a bailment, it applies only to personalty and there can be no pledge of real estate. On the ground of public policy, the pay and pensions of soldiers and sailors cannot be pledged. This has been frequently held in England, 72 in the absence of a statute. In the United States, there are also statutes to the same effect. 73 National banks are pro- hibited from lending money on their own stock. 74 Future Property The general rule is that property not yet in existence or not yet acquired cannot be pledged. 75 This may be the subject of «7 In re Pleasant Hill Lumber Co., 126 La. 743, 52 South. 1010. es Story, Bailm. § 293. so Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307. But a chose in action growing out of a personal tort is not assignable, and therefore cannot be pledged. Pindell v. Grooms, 18 B. Mon. (Ky.) 501. 'o See Story, Bailm. | 293. ti Kyle v. Sigur, 121 La. 888, 46 South. 910; Frost v. Shaw, 3 Ohio St. 270; Jones v. Scott, 10 Kan. 33. 72 McCarthy v. Goold, 1 Ball & B. 387; Lidderdale v. Montrose, 4 T.R.248. 7 8 As to pay, Rev. St. § 1291 (U. S. Comp.. St. 1901, p. 918). As to pensions, Bev. St. § 4745 (TJ. S. Comp. St 1901, p. 3278). i* Act June 3, 1864, c. 106, 13 Stat. 99. First Nat. Bank v. Lanier, 11 Wali. 369, 20 L. Ed. 172; Bullard v. National Eagle Bank, 18 Wall. 589, 21 L. Ed. 923; Hagar v. Union Nat. Bank, 63 Me. 509. 7 8 in re Pleasant Hill Lumber Co., 126 La. 743, 52 South. 1010; Gittings v. Nelson, 86 111. 591; Owens v. Kinsey,, 52 N. C. 245; Smithurst v. Edmunds, 14 N. J. Eq. 408. For a pledge of an interest in a partnership not yet in existence, see Appeal of Collins, 107 Pa. 590, 52 Am. Rep. 479. § 73) WHAT MAT BE PLEDGED 187 an agreement to pledge, but not of a pledge. Any attempt to pledge such property can create only contract rights or rights in personam, as distinguished from rights in rem; for manifestly there could be no in rem rights without a res. The pledge, how- ever, may take effect when the property is acquired or comes into existence, provided the rights of innocent third persons have not in the meantime intervened. 70 According to the analogy of a doctrine frequently held in the case of sales, many courts hold that property which is potentially in existence, such as crops in the ground " and wool to be raised from sheep which are already owned, may be pledged, with the rights of the pledgee attaching to such property as its potential existence merges into actual existence. Thus, under this rule, a man may pledge all the wool that he may take from his flocks in a certain year, but not all the wool that shall grow upon sheep that he may thereafter buy. 78 The American Sales Act, 78 however, abolishes the distinction as to sales between future goods and goods having a potential existence, and a like doctrine is probably advisable in the case of pledges. Incorporeal Property Not only corporeal property (that which may be seen and touch- ed and which is ordinarily valuable for itself rather than for what it represents), but also incorporeal property, may be the subject of a pledge. In fact, by far the most important pledge transactions in the commercial world have to do with this latter class of property. Examples of incorporeal property frequently pledged are the ordinary negotiable instruments, such as bills of exchange and promissory notes, 80 nonnegotiable instruments, such as in- 7e Sequeira v. Collins, 153 Cal. 426, 95 Pac. 876; Macomber v. Parker, 14 Pick. (Mass.) 497; Goodenow v. Dunn, 21 Me. 86; Smith v. Atkins, 18 Vt. 461; Ayers v. South Australian Banking Co., L. R. 3 P. C. (Eng.) 548. 77 Smith v. Atkins, 18 Vt. 461. But an attempt to pledge crops not yet planted is ineffectual against a landlord's lien. Gittings v. Nelson, 86 111. 591. 78 Smithurst v. Edmunds, 14 N. J. Eq. 408. 79 American Sales Act, § 5 ; Williston, Sales, §§ 127-137. so Casey v. Cavaroc, 96 U. S. 467, 24 L. Ed. 779; Atkinson v. Foster, 134 111. 472, 25 N. E. 528; American Exch. Nat. Bank of New York v. Federal Nat Bank of Pittsburg, 226 Pa. 483, 75 Atl. 683, 27 L. R. A. (N. S.) 666, 134 Am. St. Rep. 1071, 18 Ann. Cas. 444; Eddy v. Fogg, 192 Mass. 543, 78 N. E. 549 ; Wilson v. Little, 2 N. Y. 443, 447, 51 Am. Dec. 307; McLean v. Walker, 10 Johns. (N. Y.) 471; White v. Phelps, 14 Minn. 27 (Gil. 21), 100 Am. Dec. 190; Appleton v. Donaldson, 3 Pa. 381; Loomis v. Stave, 72 111. 623; Sanders v. Davis, 13 B. Mon. (Ky.) 433; Morris Canal & Banking Co. v. Fisher. 9 N. J. Eq. 667, 64 Am. Dec. 423 ; Fennell v. McGowan, 58 Miss. 261 ; William- 188 BAILMENTS FOB MUTUAL BENEFIT! — PLEDGES (Ch. 7 surance policies 81 and corporate stock, 82 and such well-known quasi negotiable instruments as the ordinary bills of lading 8S and warehouse receipts. 8 * DELIVERY 74. Delivery is absolutely essential to the creation of a pledge. Such delivery may be either — (a) Actual; or (b) Constructive. Delivery with intention to create a pledge is sufficient to es- tablish a pledge of any kind of property except corpo- rate stock. As a pledge is primarily a bailment, there can, of course, be no pledge without a delivery (in the sense in which it has already son v. Culpepper, 16 Ala. 211, 50 Am. Dec. 175; President, etc., of Louisiana State Bank v. Gaiennie, 21 La. Ann. 555. A man may pledge his own note. Green v. Sinker, Davis & Co., 135 Ind. 434, 35 N. B. 262. A promissory note of a third person, deposited by a debtor with his creditor as collateral se- curity for a debt, is a pledge in which the pawnee has merely a special prop- erty, the general ownership remaining in the pawnor. Garlick v. James, 12 Johns. (N. Y.) 146, 7 Am. Dec. 294. Coupon bonds payable to the bearer may be pledged by the party issuing them, because they are securities usually sold in the stock market, and understood by the parties to be designed for that use, and not because the party's ordinary bond or mortgage, deposited as a collateral, could be so regarded. Morris Canal & Banking Co. v. Fisher, 9 N. J. Eq. 667, 64 Am. Dec. 423. si Life insurance policies: Tateum v. Ross, 150 Mass. 440, 23 N. E. 230; Grant's Adm'rs v. Kline, 115 Pa. 618, 9 Atl. 150; Gilman v. Curtis, 66 Cal. 116, 4 Pac. 1094; Collins v. Da'wley, 4 Colo. 138, 34 Am. Bep. T2. Fire insur- ance policies: Stout v. Yaeger Mill. Co. (C. C.) 13 Fed. 802; Merrill v. Colo- nial Mut. Fire Ins. Co., 169 Mass. 10, 47 N. E. 439, 61 Am. St Bep. 268; East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287. 82 Thompson v. Holladay, 15 Or. 34, 14 Pac. 725; Barse Live-Stock Co. v. Range Valley Cattle Co., 16 Utah, 59, 50 Pac. 630; Hasbrouck v. Vander- voort, 4 Sandf. (N. T.) 74; Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307; Fisher v. Brown, 104 Mass. 259, 6 Am. Bep. 235; Bozet v. McClellan, 48 111. 345, 95 Am. Dec. 551; Heath v. Silverthorn Lead Mining & Smelting Co., 39 Wis. 147 ; Appeal of Conyngham, 57 Pa. 474. It may be pledged by the cor- poration itself. Brewster v. Hartley, 37 Cal. 15, 99 Am. Dec. 237. ss Lickbarrow v. Mason, 1 H. Bl. (Eng.). 357; Douglass v. People's Bank of Kentucky, 86 Ky. 176, 5 S. W. 420, 9 Am. St Bep. 276 ; NEILL v. BOGERS BEOS. PEODUCE CO., 41 W. Va. 37, 23 S. E. 702, Dobie Cas. Bailments and Carriers, 122; First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34; Petitt v. First Nat. Bank of Memphis, 4 Bush (Ky.) 334. s* Babcock v. Lawson, 5 Q. B. D. (Eng.) 284; Ammon v. Gamble-Robinson Commission Co., Ill Minn. 452, 127 N. W. 448; People's Sav. Bank v. Bates, 120 U. S. 556, 7 Sup. Ot. 679, 30 L. Ed. 754 ; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; Yenni v. McNamee, 45 N. Y. 614, 620: Vogelsang's Adm'r T. Fisher, 128 Mo. 386, 31 S. W. 13. § 74) DELIVERY 189 been used, viz., a transfer of possession) of the goods." The pledge exists only, and takes its beginning, from the time of such delivery. An agreement to deliver, however, does not (and can- not) create a pledge; it is, at best, merely a contract to create a pledge at some future time. 89 The question as to the exact time when the pledge begins, in- volving the distinction between delivery and a contract to deliver, is not of primary importance as between the pledge parties. 87 This for the reasons, first, that the contract to deliver, being based on a consideration, is enforceable at law; and, secondly, since, between the pledge parties, their rights are frequently worked out just as if there had been a complete delivery, creating a pledge, by virtue of the maxim "Equity treats that as done which ought to be done." 88 When, however, the rights of third parties are called into ques- tion (either where there has never been a delivery, or where these rights attach before such delivery), then somewhat different con- ss Boney & Harper Milling Co. v. J. C. Stevenson Co., 161 N. C. 510, 77 S. B. 676; Porter v. Shotwell, 105 Mo. App. 177, 79 S. W. 728; Robertson v. Robertson, 186 Mass. 308, 71 N. B. 571 ; Dunn v. Train, 125 Fed. 221, 60 C. C. A. 113; Parson v. Gilbert, 114- 111. App. 17; AMERICAN CAN CO. v. ERIE PRESERVING CO., 183 Fed. 96, 105 C. C. A, 388, Dobie Cas. Bail- ments and Carriers, 114; Fletcher v. Howard, 2 Aikens (Vt.) 115, 16 Am. Dec. 686 ; Succession of Lanaux, 46 La. Ann. 1036, 15 South. 708, 25 L. R. A. 577; Cortelyou v. Lansing, 2 Caines, Cas. (N. Y.) 200; Barrow v. Paxton, 5 Johns. (N. T.) 259, and note, 4 Am. Dec. 354; Brown v. Bement, 8 Johns. (N. T.) 97; Ceas v. Bramley, 18 Hun (N. Y.) 187; Campbell v. Parker, 9 Bosw. (N. Y.) 322, 329; Haskins v. Kelly, 1 Rob. (N. Y.) 160, 172; Milliman • v. Neher, 20 Barb. (N. Y.) 37, 40; Muller v. Pondir, 6 Lans. (N. Y.) 472, 480; Nevan v. Roup, 8 Iowa, 207; Gleason v. Drew, 9 Greenl. (Me.) 79, 82; Walcott v. Keith, 22 N. H. 196; Propst v. Roseman, 49 N. C. 130; Corbett v. Underwood, 83 111. 324, 25 Am. Rep. 392; Casey v. Cavaroc, 96 U. S. 467, 24 L. Ed. 779. Plaintiff leased a machine to defendant for certain work, under an agreement that plaintiff should receive one-fourth of the profits of the work, and pay one-fourth of the losses. Afterwards it was agreed that de- fendant should have a lien on the machine as security for plaintiff's agree- ment to pay one-fourth of the losses. It was then delivered to defendant. Held, that there was a pledge of the machine to defendant, Clark v. Costello, 79 Hun, 588, 29 N. Y. Supp. 937. so Cameron v. Orleans & J. R. Co., 108 La. 83, 32 South. 208; Copeland v. Barnes, 147 Mass. 388, 18 N. B. 65; Nisbit v. Macon Bank & T. Co. (C. C.) 12 Fed. 686; Rowell v. Claggett, 69 N. H. 201, 41 Atl. 173 ; Hitchcock v. Has- sett, 71 Cal. 331, 12 Pac. 228; In re Automobile Livery Service Co. (D. C.) 176 Fed. 792. a? Keiser v. Topping, 72 111. 226; Tuttle v. Robinson, 78 111. 332; City Fire Ins. Co. v. Olmsted, 33 Conn. 476. ss But the mere contract to deliver the goods in pledge does not give the contract pledgee a lien on such goods. Hitchcock v. Hassett, 71 Cal. 331, 12 Pac. 228; Davenport v. City Bank of Buffalo and Marcy, 9 Paige (N. Y.) 12. 190 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 1 siderations apply. 89 The delivery not only creates a pledge, but serves to give notice to the world of the rights of the pledgee in the pledged goods; but a mere agreement to deliver in no way serves this last purpose. Accordingly, as to innocent purchasers from the owner and those who innocently acquire in rem rights to the goods, such as attaching creditors, in both cases, if this in rem right precedes the delivery to the pledgee, the latter's rights must yield. 80 There is no little confusion as to the comparative rights of the general creditors of the intending pledgor and the intending pledgee before delivery. In such a case neither the cred- itor nor the intended pledgee has an in rem claim to the goods; but it would seem that, certainly before the creditors acquire a lien on the goods by an attachment or execution, the intending pledgee has in the absence of fraud the superior right to take possession of the goods and hold them against such general cred- itors. 91 Actual and Constructive Delivery — Symbolical Delivery It has been said: "In all cases the essence of delivery is that the deliveror, by some apt and manifest act, puts the deliveree in the same position of control over the thing, either directly or through a custodian, which he himself held immediately before that act." 92 The question of what acts constitute a sufficient de- livery to create a pledge, either when considered generally or with reference to specific kinds of property, is not an easy one. Mr. Schouler's phrase, "the modern mosaic of pledge delivery," 9S is _ both accurate and happy. The most perfect form of delivery, known as actual delivery, ,»■ 8» Nisbit v. Macon Bank & T. Co. (C. O.) 12 Fed. 686; AMERICAN CAN CO. v. ERIE PRESERVING CO., 183 Fed. 96, 105 C. C. A. 388, Dobie Cas. Bailments and Carriers, 114; Rowell v. Claggett, 69 N. H. 201, 41 Atl. 173; Copeland v. Barnes, 147 Mass. 388, 18 N. E. 65. eo Cameron v. Orleans & J. R. Co., 108 La. 83, 32 South. 208; Parshall v. Eggert, 54 N. Y. 18; American Pig Iron Storage Warrant Co. v. German, 126 Ala. 194, 28 South. 603, 85 Am. St. Rep. 21 ; Nisbit v. Macon Bank & T. Co. (C. C.) 12 Fed. 686; AMERICAN CAN CO. v. ERIE PRESERVING CO., 183 Fed. 96,-105 C. C. A. 388, Dobie Cas. Bailments and Carriers, 114; Rowell v. Claggett, 69 N. H. 201, 41 Atl. 173 ; Casey v. National Park Bank, 96 O. S. 492, 493, 24 L. Ed. 789; Cotton v. Arnold, 118 Mo. App. 596, 95 S. W. 280. »i See Schouler, Bailm. § 199. "As between the pledge parties apd general creditors, such transactions can only be attacked by the latter for fraud upon them; and if there be a bona fide pledge contract, ineffectual for want of delivery, the pledgee may, at any time, take full possession and maintain his priority over them." Parshall v. Eggert, 54 N. Y. 18; Succession of Hiligsberg, 1 La. Ann. 340. See, also, Jones, Collateral Securities (3d Ed.) § 38 ; Prouty v. Barlow, 74 Minn. 130, 76 N. W. 946. »2 Pollock, Possession, p. 46. »s Schouler, Bailm. § 199. § 74) DELIVERY 191 consists in the real physical transfer of the manual control of the goods by the pledgor to the pledgee, 84 as where the pledgor takes a watch from his pocket and puts it in the hands of the pledgee. About such a delivery there could be no question, and, when it is possible and practicable, it is always safest for the pledgee to resort to such a delivery. To constitute a valid de- livery of part of a larger quantity of goods, the part to be pledged should be separated from the rest and delivered. 06 In some cases, however, an actual delivery is not necessary for the creation of a pledge; 86 in other cases, an immediate actual delivery is either impracticable or, impossible. 97 Here all that "is necessary is what is called a "constructive delivery." This is a term of comprehensive meaning, and includes those acts which, though not conferring manual control of the goods (or approximat- ing real possession in that sense), are yet held by law to be the equivalent in legal effect to such acts of real delivery. 88 Thus, when property is in the possession of a third person, an actual delivery to the pledgee will not be required; but an order by the pledgor upon the keeper is sufficient to constitute a constructive delivery. 99 Where goods are lying in a warehouse, notice to the warehouse keeper, when all the other essential requisites of a pledge are proved, is equivalent to a delivery ; for after such notice •* Black, Law Diet. pp. 349, 350. Of course, an effective delivery may be made by an agent of the pledgor. Cartwright v. Wilmerding, 24 N. Y. 521. Or such delivery may be made to an agent of the pledgee. City Bank of New Haven v. Perkins, 29 N. Y. 554, 86 Am. Dec. 332; Johnson v. Smith, 11 Humph. (Tenn.) 396; McCready v. Haslock, 3 Tenn. Ch. 13; Brown v. Warren, 43 N. H. 430; Tibbetts v. Flanders, 18 N. H. 284; Boynton v. Pay- row, 67 Me. 587; Weems v. Delta Moss Co., 33 La. Ann. 973. sb Collins v. Buck, 63 Me. 459; Sholes v. Western Asphalt Block & Tile Co., 183 Pa. 528, 38 Atl. 1029. »« FIRST NAT. BANK OF PARKERSBURG v. HARKNESS, 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408, Dobie Cas. Bailments and Carriers, 109; Dubois v. Spinks, 114 Cal. 289, 294, 46 Pac. 95; Jewett v. Warren, 12 Mass. 300,' 7 Am. Dec. 74. »7 Goods during shipment by land or water furnish excellent examples of this. »8 Black, Law Diet. p. 350, and cases cited. As to what will not be effective as a constructive delivery, see Thurber v. Oliver (C. C.) 26 Fed. 224 (delivery of samples of goods) ; Brown v. Warren, 43 N. H. 430 (owning the shop in which the goods are used). In Huntington v. Sherman, 60 Conn. 463, 466, 22 Atl. 769, the court, in a case similar to Brown v. Warren, supra, said: "The circumstances ordinarily furnishing a basis for constructive delivery are wholly wanting; the goods are not at sea, nor in a warehouse, nor were they too ponderous to be readily moved, nor were they placed within the power and control of the plaintiffs." 88 Whitaker v. Sumner, 20 Pick. (Mass.) .399; Tuxworth v. Moore, 9 Pick. (Mass.) 347, 349, 20 Am. Dec. 479. 192 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ch. 7 the keeper ceases to be the agent of the pledgor, and becomes the agent of the pledgee ; and thus the goods are placed under the ef- fective control of the pledgee, practically to the same extent that they would be by an actual delivery. 1 The pledgee may himself be in possession when the pledge is created, as where goods already pledged are, by agreement of the parties, made security for a further loan. 2 Or possession may be held by the pledgee jointly with others. Actual delivery is not necessary in such cases. The delivery of the key to the warehouse in which the goods are stored has been held to be an effective delivery of the goods. 8 . When the goods are cumbersome or inaccessible, a delivery is often effected by the physical transfer of some symbol or repre- sentative of the goods, which is conventionally recognized as stand- ing for the goods and furnishing a method of dealing with them. Thus, a transfer of the bill of lading * of goods in the course of shipment would constitute such a delivery. This form of con- structive delivery is called a symbolic delivery. 6 Incorporeal Property A pledge of incorporeal property is made by delivery, just as in other cases — that is, the delivery of the evidence or symbol, as the' most apt delivery of which this kind of property is capable, creates a pledge of the property — and such a delivery is neces- sary. 6 Though a pledge of this kind of property is generally made by an assignment in writing, and should be so made, such an as- i Whitaker v. Sumner, 20 Pick. (Mass.) 399, 403 ; Hathaway v. Haynes, 124 Mass. 311; First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34; Cart- wright v. Wilmerding, 24 N. Y. 521; Michigan Cent. R, Co. v. Phillips, 60 111. 190; Western TJnion R. Co. v. Wagner, 65 111. 197; Burton v. Curyea, 40 111. 325, 89 Am. Dec. 350; Newcomb v. Cabell, 10 Bush (Ky.) 460; Whitney v. Tibbits, 17 Wis. 369; Dows v. National Exch. Bank, 91 TJ. S. 618, 23 L. Ed. 214; First Nat. Bank of Cincinnati v. Bates (D. C.) 1 Fed. 702; Freiburg v. Dreyfus, 135 TJ. S. 478, 10 Sup. Ct. 716, 34 L. Ed. 206 ; Harris v. Bradley, 2 Dili. 284, Fed. Cas. No. 6,116. , 2 Herber v. Thompson, 47 La. Ann. 800, 17 South. 318; Van Blarcom v. Broadway Bank, 37 N. Y. 540 ; Brown v. Warren, 43 N. H. 430 ; Clark v. Costello, 79 Hun, 588, 29 N. Y. Supp. 937. s Hilton v. Tucker, 39 Ch. D. (Eng.) 669; Ryall v. Rolle, 1 Atk. (Eng.) 165. * Moors v. Wyman, 146 Mass. 60, 15 N. E. 104 ; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; Peters v. Elliott, 78 111. 321; Meyerstern v. Barber, 36 L. J. C. P. (Eng.) 48. The same is true of warehouse receipts. In re Cincinnati Iron Store Co., 167 Fed. 486, 93 C. C. A. 122; Hoor v. Barker, 8 Cal. 609; National Exch. Bank v. Wuder, 34 Minn. 149, 24 N. W. 699. » Black, Law Diet p. 350. « Jones, Collateral Securities (3d Ed.) § 80; Casey y. Cavaroc, 96 IT. S. 467, 24 L. Ed. 779; Atkinson v. Foster, 134 111. 472, 25 N. E. 528; Farm Inv. Co. v. Wyoming College and Normal School, 10 Wyo. 240, 68 Pac. 561 ; Cotton v. Arnold, 118 Mo. App. 596, 95 S. W. 280. § 74) DELIVERY 1-93 signment is not absolutely necessary, 7 except in the case of corpo- rate stocks, mentioned later in this sectioji. Thus, a negotiable instrument may be pledged by a simple delivery, without any in- dorsement, even though it be payable "to order." 8 And it has long been settled that if a nonnegotiable note is transferred by delivery, in good faith and for a valuable consideration, this is a valid pledge, whictrtrre courts of law will recognize and protect, even though the pledgee cannot maintain an action at law thereon in his own name. And the same principle applies to other choses in action. 8 An equitable interest in a judgment may be pledged by the delivery of the execution thereon to the pledgee. 10 Where' there is a pledge of a nonnegotiable chose in action, no notice to the debtor is necessary to the validity of the pledge. 11 Applying the rules of the preceding paragraphs to some special cases, We find that a delivery of a savings bank book, with the intention that the deposit in the bank represented by the book should be held as collateral security for the payment of a debt, 7 Bank of Chadron v. Anderson, 6 Wyo. 518, 48 Pae. 197; Sharmer v. Mc- intosh, 43 Neb. 509, 61 N. W. 727; Crain v. Paine, 4 Cush. (Mass.) 483, 50 Am. Dec. 807; Dickey v. Pocomoke City Nat. Bank, 89 Md. 280, 43 Atl. 33; Bank of Woodland v. Duncan, 117 Cal. 412, 49 Pac. 414. But see American Exch. Bank of New York v. Federal Nat. Bank of Pittsburg, 226 Pa. 483, 75 Atl. 683, 27 L. R. A. (N. S.) 666, 134 Am. St. Rep. 1071, 18 Ann. Cas. 444, holding that there must be a written assignment to pledge a book account, though in the note to this case in 27 L. R. A. (N. S.) 666, many cases are cited holding oral assignments of book accounts valid. s Bank of Chadron v. Anderson, 6 Wyo. 518, 48 Pac. 197 ; Van Riper v. Baldwin, 19 Hun (N. Y.) 344; Morris v. Preston, 93 111. 215; Tucker v. New Hampshire Sav. Bank in Concord, 58 N. H. 83, 42 Am. Rep. 580. » Jones v. Witter, 13 Mass. 304, 307; Grover v. Grover, 24 Pick. (Mass.) 261, 263, 35 Am. Dec. 319; Norton v. Piscataqua Fire & Marine Ins. Co., Ill Mass. 532, 535; Kingman v. Perkins, 105 Mass. Ill; Dix v. Cobb, 4 Mass. 508; Williams v. Ingersoll, 89 N. Y. 508, 518; Stout v. Yaeger- Mill. Co. (C. C.) 13 Fed. 802; McArthur v. Magee, 114 Cal. 126, 45 Pac. 1068; Hewins v. Baker, 161 Mass. 320, 37 N. E. 441; Grant's Adm'r v. Kline, 115 Pa. 618, 9 Atl. 150. io Crain v. Paine, 4 Gush. (Mass.) 483, 485, 50 Am. Dec. 807; Dunn v. Snell, .15 Mass. 481; Thayer v. Daniels, 113 Mass. 129. See, also, Mulford v. Waller, 3 Abb. Dec. (N. Y.) 330. ii Jones, Collateral Securities (3d Ed.) § 136; Thayer y. Daniels, 113 Mass. 129. But see, contra, the English cases of Dearie v. Hall, 3 Russ. 1; Meux v. Bell, 1 Hare, 73. The rule in England would seem to be that, as between successive purchasers of a chose in action, he will have the preference who first gives notice to the debtor, even if he be a subsequent purchaser. Such, however, has not been the rule adopted in this country, where it is held that the assignment of a chose in action is complete upon the mutual assent of the assignor and assignee, and does not gain additional validity, as against third persons, by notice to the debtor. Dob.Ba.ilm. — 13 19^ BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 is a valid pledge. 12 So the delivery of a note and mortgage as security for a debt, even without an assignment in writing," is en- titled to protection in a court of law. 18 And where the directors of a corporation placed the company's policies of insurance in the hands of two of its directors, without any formal assignment, to secure loans made and to be made by such directors and others to the corporation, it was held that there was a sufficient delivery of these policies to sustain the pledge. 1 * Corporate Stock What is necessary to constitute a valid pledge of stock in a corporation has been the subject of much discussion and many conflicting decisions. Indeed, formerly there was doubt whether it could be the subject of a pledge at all, though this is now well settled in the affirmative. 16 It seems, also, well settled that, in the absence of statutory provisions, to pledge corporate stock, some written transfer or contract is necessary, as against third parties. 16 A mere handing over of the stock certificate to the pledgee is not sufficient. 17 There must be either a transfer on the books of the company, or a power of attorney authorizing such a transfer, 18 or some assignment or contract in writing by which the holder may assert title and compel a transfer . when desired. 19 The safest method of delivery is an actual transfer of the stock 12 Taft v. Bowker, 132 Mass. 277 ; Boynton v. Payrow, 67 Me. 587. is Crain v. Paine, 4 Cush. (Mass.) 483, 50 Am. Dec. 807; Adler v. Sargent, 109 Cal. 42, 41 Pae. 799 ; Kamena v. Huelbig,. 23 N. J. Eg. 78; Prescott v. Hull, 17 Johns. (N. Y.) 284. 1* Stout v. Yeager Mill. Co. (C. C.) 13 Fed. 802. loHasbrouck v. Vandervoort, 4 Sandf. (N. Y.) 74; Gilpin v. Howell, 5 Pa. 41, 45 Am. Dec. 720; Barse Live Stock Co. v. Range Valley Cattle Co., 16 Utah, 59, 50 Pae. 630 ; Newton v. Fay, 10 Allen (Mass.) 505. See, also, cases cited in the succeeding notes of this section. io Nisbit v. Macon Bank & T. Co. (C. C.) 12 Fed. 686; Succession of Lanaux, 46 La. Ann. 1036, 15 South. 708, 25 L. R. A. 577 ; First Nat. Bank of Water- loo v. Bacon, 113 App. Div. 612, 98 N. Y. Supp. 717. i* Wagner v. Marple, 10 Tex. Civ. App. 505, 31 S. W. 691. isA pledge of stock by a transfer in blank on the back of the certificate, which is pinned to the- note secured, is valid in respect to form. McClintock v. Central Bank of Kansas, 120 Mo. 127, 24 S. W. 1052. is Nisbit v. Macon Bank & T. Co. (C. C.) 12 Fed. 686. And see article on Law of Collateral Security, by Leonard A. Jones, in 14 Am. Law Rev. (Feb., 1880) 97, 128. A broker carrying stocks upon margins is a pledgee. The pur- chaser is regarded as pledgor of the stock which the broker holds as a pledge for the advances made by him in purchasing the stock. Baker v. Drake, 66 N. Y. 518, 23 Am. Rep. 80 ; Stenton v. Jerome, 54 N. Y. 480; Vaupell v. Wood- ward, 2 Sandf. Ch. (N. Y.) 143 ; McNeil v. Tenth Nat. Bank, 55 Barb. (N. T.) 59; Thompson v. Toland, 48 Cal. 99; Worthington v. Tormey, 34 Md. 182; Hatch v.- Douglas, 48 Conn. 116, 40 Am. Rep. 154. § 74) DELIVERY 195 certificate to the pledgee, with a written indorsement thereon, ac- companied by a formal transfer of the stock on the books of the corporation. The pledgee is then fully protected, both as against the pledgor and as against third persons claiming through him. In the absence of a statute, or provision in the corporate charter or by-laws, requiring a transfer on the books of the corporation, however, this is not necessary, and a good delivery in pledge may be made by the mere transfer of the stock certificate to the pledgee, with the proper indorsement written thereon. 20 It is usually provided by statute, or by the charter or by-laws of the corporation, that no transfer of stock is valid unless made on the books of the corporation. The entry of the transaction on the corporation's books, where stock is sold or pledged, is required, not for the transfer of the title, but for the protection of the par- ties and others dealing with the corporation, and to enable it to know who are its stockholders, 21 entitled as such to participate in the control and the profits of the corporation. In such cases, it seems that a pledge transfer not so recorded is invalid as to bona fide purchasers of the stock. 22 The effect of the unrecorded pledge transfer as against the creditors of the pledgor has resulted in inconsistent holdings by the various courts passing on the ques- tion. In some of the cases, the courts deny the validity of the transfer as against such creditors ; 23 while in Massachusetts a like result is reached when the recorded transfer is required by statute or the corporate charter, but when such a provision is found only in the corporate by-laws, then the pledgee takes precedence (even though the transfer is not recorded in the company's books) as against the creditors of the pledgor. 24 Since a state statute and 20 Cecil Nat. Bank v. Watsontown Bank, 105 XT. S. 217, 26 L. Ed. 1039 ; Sibley v. Quinsigamond Nat. Bank, 133 Mass. 515; Johnson v. Underbill, 52 N. T. 203; Merchants' Nat. Bank v. Richards, 6 Mo. App. 454; COENICK v. RICHARDS, 3 Lea (Tenn.) 1, Dobie Cas. Bailments and Carriers, 117. si Johnston v. Laflin, 103 U. S. 800, 26 L. Ed. 532; Chouteau Spring Co. v. Harris, 20 Mo. 382; Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706 ; Scott v. Pequonnock Nat. Bank (C. C.) 15 Fed. 494. 22 New York & N. H. R. Co. v. Schuyler, 34 N. X. 30; Johnston v. Laflin, 103 TJ. S. 800, 26 L. Ed. 532. , 23 See Colt v. Ives, 31 Conn. 25, 81 Am. Dec. 161; Van Zile on Bailm. & Carr. p. 231. 2* Boston Music Hall Ass'n v. Cory, 129 Mass. 435; Fisher v. President, etc., of Essex Bank, 5 Gray (Mass.) 373. See, also, Smith v. Crescent City Live- stock Landing & Slaughter House Co., 30 La. Ann. 1378; CORNICK v. RICHARDS, 3 Lea (Tenn.) 1, Dobie Cas. Bailments and Carriers, 117 ; Jones on Collateral Securities (3d Ed.) §§ 158-162; Otis v. Gardner, 105 111. 436; Shipman v. JEtna Ins. Co., 29 Conn. 245; Merchants' Nat. Bank v. Richards, 74 Mo. 77. 196 BAILMENTS FOE MUTUAL BENEFIT FLEDGES (Ch. 7 the charter of a corporation are public acts of a state, with which those dealing with a corporation are charged with notice, while the by-laws of the corporation are mere rules enacted by a private corporation for its own government, the Massachusetts rule has much to commend it, and is believed to be sound. Bills of Lading A bill of lading issued by a carrier is at the same time both a receipt for the goods delivered to the carrier and also a contract containing the terms of the agreement for the transportation of the goods. 25 It is one of the most important of commercial docu- ments, and we shall have frequent occasion to refer to it, in many connections. The bill of lading forms a convenient means of deal- ing with goods that are in the course of shipment by the carrier. Though the safest delivery of a bill of lading in pledge is by a delivery of the bill to the pledgee with the proper indorsement, usually in blank, an indorsement is not essential; and a delivery of the bill of lading with the intention of pledging it is entirely sufficient, without any indorsement at all. 20 Warehouse Receipts Warehouse receipts are issued by warehousemen, stating that certain goods have been deposited with the warehouseman, and are held by him subject to the order of the person making the depos- it. 27 Like a bill of lading, to which in legal effect it is practically similar, the warehouse receipt is a symbol of the goods, and the transfer of such a receipt is equivalent to a delivery of the goods. 28 Like the bill of lading, it is not strictly negotiable, and may also be pledged by a mere delivery of the receipt with that intention without any indorsement. 29 25 The Delaware, 14 Wall. 600, 20 L. Ed. 779; Gage v. Jaqueth, 1 Lana. (N. Y.) 210. Civ. Code Cal. § 2126. ae Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; First Nat. Bank of Cairo v. Crocker, 111 Mass. 163, 167; First Nat. Bank of Green Bay v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; Michigan Cent. B. Co. v. Phillips, 60 111. 190; Haille v. Smith, Bos. & P. (Eng.) 563 ; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 173, 35 Am. Dec. 607; Grosvenor v. Phillips, 2 Hill (N. Y.) 147; Bank of Eochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290 ; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; Allen v. Williams, 12 Pick. (Mass.) 297; Peters v. El- liott, 78 111. 321. 2T Miller v. Browarsky, 130 Pa. 372, 18 Atl. 643; Merchants' Warehouse Co. v. McClain (C. C.) 112 Fed. 789. » as Bush v. Export Storage Co. (C. C). 136 Fed. 918; FIRST NAT. BANK OF PARKERSBURG v. HARKNESS, 42 W. Va. 156, 24 S. E. 548, 32 h. H. A. 408, Dobie Cas. Bailments and Carriers, 109; Young v. Lambert, L. R. 3 P. C. (Eng.) 142 ; Western Union R. Co. v. Wagner, 65 111. 197. 2»Danforth v. McElroy, 121 Ala. 106, 25 South. 840; Gibson v. Stevens, § 75) EIGHTS AND DUTIES OF THE PLBDGOB 197 In the absence of statute, it is generally held that a warehouse- man may issue a warehouse receipt for goods of his own which he has in store, and may make a valid pledge by the delivery of such receipt. 30 RIGHTS AND DUTIES OF THE PLEDGOR 75. Unless varied by a special contract, the principal rights and duties of the pledgor are as follows: (a) He impliedly warrants his title or interest* (b) His interest is assignable. (c) At common law the pledgor's interest seems not to have been subject to judicial sale, but this is now changed in most states by statute. (d) He can sue third persons for injuries to the pledged goods. (e) He has a right to redeem the pledged goods, which con- tinues until it is lost: (1) By a valid sale of the goods by the pledgee after the default of the pledgor. (2) By a subsequent release by the pledgor of his right of redemption. (3) By the running of the statute of limitations. The rights and liabilities of the parties to a pledge may be varied, as in other bailments, by a special contract containing such terms as they see fit to insert. 31 In the absence of such agree- ments, the law annexes certain conditions to a pledge, which con- trol the rights of the pledgor and pledgee and their duties to each other and to third persons. Warranty of Title or Interest by the Pledgor In the very act of creating a pledge, the pledgor impliedly war- rants that he has sufficient title, interest, or authority as to the 8 How. 384, 12 L. Ed. 1123; Wilkes v. Ferris, 5 Johns. (N. T.) 335, 4 Am. Dec. 364; Hoor v. Barker, 8 Cal. 609; St. Louis Nat. Bank v. Ross, 9 Mo. App. 399. so Millhiser Mfg. .Co. v. Gallego Mills Co., 101 Va. 579, 44 S. E. 760 ; National Exch. Bank v. Wilder, 34 Minn. 149, 24 N. W. 699; Merchants' Bank of Detroit v. Hibbard, 48 Mich. 118, 11 N. W. 834, 42 Am. Rep. 465 ; Alabama State Bank v. Barnes, 82 Ala. 607, 2 South. 349. But see, contra, Franklin Nat. Bank v. Whitehead, 149 Ind. 560, 49 N. E. 592, 39 L. R, A. 725, 63 Am. St. Rep. 302; Jones, Collateral Securities, §§ 325a, 326. si St. Losky v. Davidson, 6 Cal. 643; Lee v. Baldwin, 10 Ga. 208; Lawrence v. McCalmont, 2 How. 426, 451, 11 L. Ed. 326; Drake v. White, 117 Mass. 10. 198 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 goods to make the pledge in question. 82 It is frequently said that the pledgor impliedly warrants his title to be that of absolute owner ; 33 but this is true only when the particular pledge was such that only an absolute owner could have made it, or when the pledge is itself a practical affirmation of ownership on the part of the pledgor. When the pledgor purports to pledge merely a spe- cific interest in the goods, he then impliedly warrants only that he has the right to pledge such interest. The pledgor, by virtue of this implied warranty, is accordingly liable to the pledgee for the amount of any liens or incumbrances on the goods which the pledgee is obliged to discharge in order to perfect his interest. 3 * Of course, one can undertake to pledge only such interest (if any) in the goods as he has, without specifying the extent of that interest, and there will then be no such implied warranty on his part. The pledgor's warranty here is analogous to that of the seller in sales of personalty. One assuming to own goods, and pledging them, is estopped from afterwards denying such ownership at the time the pledge was created; and a subsequent acquisition of title by the pledgor, as between the parties to the contract, inures to the benefit of the pledgee, without any new delivery or ratification of the pledge on the part of the pledgor. 35 ^ Assignment of His Interest by the Pledgor The owner of a chattel, which he has pledged, still retains his ownership or general property in the chattel, qualified by, and subject to, the special property and rights of the pledgee in the chattel, created by the pledge. 38 This qualified general property in the chattel the owner may transfer to a third person by sale or assignment. 87 Such third person then succeeds to the rights of the owner, without affecting the right or interest of the pledgee in the chattel. 38 The assignee may tender the amount of the debt as Edwards, Bailm. p. 192; Jones, Collateral Securities, § 52; Hairs v. Tay- lor, 40 Pa. 446; Goldstein v. Hort, 30 Cal. 372. as Story, Bailm. § 354; Jones, Collateral Securities, § 52. a* Cass v. Higenbotam, 27 Hun (N. T.) 406. so Goldstein v. Hort, 30 Cal. 372. as See ante, § 72; post, § 78. 8t Brent v. Miller, 81 Ala. 309, 8 South. 219; Brown v. Hotel Ass'n, 63 Neb. 181, 88 N. W. 175; Fletcher v. Howard, 2 Aikens (Vt) 115, 16 Am. Dec. 686; Bush v. Lyon, 9 Cow. (N. Y.) 52; Whitaker v. Sumner,. 20 Pick. (Mass.) 399; Tuxworth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479; Fetty- place v. Dutch, 13 Pick. (Mass.) 388, 23 Am. Dec. 688 ; Cooper v. Ray, 47 111. 53 ; Batcliff v. Vance, 2 Mill, Const. (S. C.) 239. as Taggart v. Packard, 39 Vt. 628; Shinkle v. Vickery, 130 Fed. 424, 61 C. O. A. 626 ; Citizens' Nat. Bank of Ft. Scott v. Bank of Commerce, 80 Kan. § 75) EIGHTS AND DUTIES OF THE PLEDGOB 199 secured and demand the return of the pledged chattel ; and if this is .refused by the pledgee, such assignee may enforce his rights by an action of replevin or trover or conversion. 39 After the pledgee has received notice of an assignment of the pledgor's in- terest, the pledgee holds the goods for the benefit of the assignee, arid cannot lawfully surrender them to the pledgor, even on pay- ment of the amount secured. 40 If, on default, the pledgee sells the pledged goods, he holds the surplus proceeds, after the satisfaction of the debt, on behalf of the assignee. 41 Sale of Pledgor's Interest on Judicial Process At common law, the interest remaining in a pledgor of goods was not subject to attachment, 42 garnishment, 43 or seizure and sale on execution. 44 This rule has been changed by statute in most of the states. In some states this result is brought about by express enactments specifically providing that the pledgor's interest shall be liable to judicial sale ; 4B in other states the terms of the statutes providing what interests shall be subject to judicial sale are so 205, 101 Pac. 1005; Carothers Warehouse Bldg. Ass'n v. McOonnell, 30 Okl. 394, 121 Pac. 191. 89 Durfee v. Harper, 22 Mont. 354, 56 Pac. 582 ; Id., 22 Mont. 373, 56 Pac, 589; Franklin v. Neate, 13 Mees. & W. (Eng.) 480; RatclifC v. Vance, 2 Mill, Const (S. C.) 239. Refusal to deliver pledged stock to the pledgor's as- signee is not justified by its attachment under a writ against such pledgor, subsequent to such assignment. Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435. *o Duell v. Cudlipp, 1 Hilt. (N. T.) 166. 4i Van Blarcom v. Broadway Bank, 37 N. T. 540. *2^]tna Ins. Co. v. Bank of Wilcox, 48 Neb. 544,. 67 N. W. 449; Mapleton Bank v. Standrod, 8 Idaho, 740, 71 Pac. 119, 67 L. R. A. 656; Badlam v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Dec. 202; Jennings v. Mcllroy, 42 Ark. 236, 48 Am. Rep. 61; Tannahill v. Tuttle, 3 Mich. 104, 61 Am. Dec. 480; Wilkes v. Ferris, 5 Johns. (N. Y.) 336, 4 Am. Dec. 364; Marsh v. Lawrence, 4 Cow. (N. Y.) 461; Stief v. Hart, 1 N. Y. 20, 28; Pomeroy v. Smith, 17 Pick. (Mass.) 85; Hunt v. Holton, 13 Pick. (Mass.) 216; Srodes v. Caven, 3 Watts (Pa.) 258. Where a sheriff violates the law, in seizing goods pledged, under an attachment against the pledgor, in an action against him by the pledgee he will be liable to the latter for the entire value of the goods. Treadwell v. Davis, 34 Cal. 601, 94 Am. Dec. 770r is Drake, Attachment, § 539; Hall v. Page, 4 Ga. 428, 48 Am. Dec. 235; Winslow v. Fletcher, 53 Conn. 390, 4 Atl. 250, 55 Am. Rep. 122; Roby v. Labuzan, 21 Ala. 60, 56 Am. Dec. 237; Kergin v. Dawson, 1 Gilman (111.) 86; Patterson v. Harland, 12 Ark. 158. « Soule v. White, 14 Me. 436; Thompson v. Stevens, 10 Me. 27; Briggs v. Walker, 21 N. H. 72; Dowler v. Cushwa, 27 Md. 354, 366; Badlam v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Dec. 202 ; Treadwell v. Davis, 34 Cal. 601, 94 Am Dec. 770. is F or examples of such statutes, see Civ. Code Ga. 1910, § 3524; 1 Burns' Ann. St, Ind. 1908, § 764; Rev. Laws Mass. 1902, c. 167, §§ 69-^?; 200 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 broad that they include the interest of a pledgor by implication. 4 ' These statutes, of course, do not permit the creditor to interfere with the rights of the pledgee ; " for he has a special property in the goods pledged, and is not bound to deliver them up to the pledgor until the debt is paid, or the undertaking performed, for the security of which the pledge was created, and a creditor of the pledgor, standing in the latter's shoes, cannot in this respect have any greater rights than the pledgor himself. Action by Pledgor against Third Persons The general rules governing the right of a bailor in a mutual benefit bailment to sue third persons are applicable here; also what has been said as to the doctrine (generally held) that a com- plete recovery by either bailor (pledgor) or bailee (pledgee) will bar an action by the other. 48 The modern criticisms on the rule permitting one to recover for injuries caused to the other (result- ing in no damage to the litigant) receive an added force in the case of pledges, when (as is rare in other bailments) the interest of the bailee (pledgee) is, from a practical standpoint, frequently greater than that of the bailor (pledgor).* 8 Mr. Schouler maintains that, for damage by third persons intermeddling with the pledged goods, the courts practically favor an action by the pledgee rather than one by the pledgor, which might wholly or in part oust the pledgee of his security. 60 Very few of the points here involved have been satisfactorily worked out by the courts. Certainly, however, the pledgee has the same right to sue third persons as other mutual benefit bailees ; and it would seem that the pledgor has at least the same right as other mutual benefit bailors to protect by suit his reversionary interest in the goods. 5X Pledgor's Right to Redeem The right of redemption, or of again securing the pledged goods on the payment of the debt or performance of the engagement Comp. Laws Mich. 1897, § 10318. See Jones, Collateral Securities, §§ 375- 392a. 46 See Petty v. Overall, 42 Ala. 145, 94 Am. Dec. 634; Arizona Civ. Code 1901, par. 2565; Reichenbach v. McKean, 95 Pa. 432; Horner v. Dennis, 34 La. Ann. 389 ; First Nat. Bank of Memphis v. Pettit, 9 Heisk. (Tenn.) 447. *' Jones, Collateral Securities, § 374; McClintock v. Central Bank of Kansas City, 120 Mo. 127, 24 S. W. 1052. is See ante, pp. 112, 134. See, also, Einstein v. Dunn, 171 N. Y. 648, 63 N. E. 1116; Adams v. O'Connor, 100 Mass. 515, 1 Am. Rep. 137; Miller v. Mc- Kenzie, 11 Ga. App. 494, 75 S. E. 820; Gamson v. Pritchard, 210 Mass. 296, 9R N. E. 715. *» See Schouler, Bailm. § 223. ■so Schouler, Bailm. § 223. »i See cases cited in note 48; Usher v. Van Vranken, 48 App. Div. 413, § 75) EIGHTS AND DUTIES OF THE PLEDGOR 201 secured, is, of course, the most important of the pledgor's rights. 52 Practically, this is the only real interest remaining in the pledgor, and his other rights are all incidental thereto. This important right continues in the pledgor until it is lost by one of the methods now to be discussed. (1) The usual way in which this right of redemption is lost is by a valid sale of the pledged goods by the pledgee." The same result follows from the rightful collection of money claims or negotiable paper. 64 Since this power of sale inheres in the pledge relation, a proper sale by the pledgee confers title to the goods on the purchaser at the sale, and the pledgor's right to redeem is thus forever lost, 65 (2) A stipulation inserted in the original pledge contract, provid- ing that, if the debt be not paid or the engagement secured be not strictly fulfilled at the time and in the mode prescribed, the pledge shall be irredeemable, is void, upon the ground of public policy, as tending to the oppression of debtors. 66 However, after the pledge 63 N. T. Supp. 104; Gregg v. Bank of Columbia, 72 S. O. 458, 52 S. B. 195, 110 Am. St. Rep. 633. 02 Hart v. Burton, 7 J. J. Marsh. (Ky.) 322; Hughes v. Johnson, 38 Ark. 285; Jennings v. Wyzansid, 188 Mass. 285, 74 N. E. 347; White River Sav. Bank v. Capital Sav. Bank & Trust Co., 77 Vt. 123, 59 Atl. 197, 107 Am. St. Rep. 154; Chambers v. Kunzman, 59 N. J. Eq. 433, 45 Atl. 599; Roberts v. Sykes, 30 Barb. (N. Y.) 173. When no time for redemption is fixed, tbe pledgor may redeem at any time. Cortelyou v. Lansing, 2 Caines, Cas. (N. Y.) 200, 204. In an action in equity to redeem a pledge, payment of the amount for which the pledge was given should be directed before the return of tbe pledge is ordered. Smith v. Anderson, 8 Tex. Civ. App. 188, 27 S. W. 775. And see, further, as to redemption in equity, Bartlett v. Johnson, 9 Al- len (Mass.) 530; Appeal of Conyngham, 57 Pa. 474; Brown v. Runals, 14 Wis. 693; Chapman v. Turner, 1 Call (Va.) 280, 288, 1 Am. Dec. 514; Flowers v. Sproule, 2 A. K. Marsh. (Ky.) 54; Merrill v. Houghton, 51 N. H. 61; White Mountains R. R. v. Bay State Iron Co., 50 N. H. 57; Hasbrouck v. Vander- voort, 4 Sandf. (N. Y.) 74; Jones v. Smith, 2 Ves. Jr. (Eng.) 372. bo See post, § 88. See, also, Swann v. Baxter, 36 Misc. Rep. 233, 73 N. Y. Supp. 336; Jennings v. Wyzanski, 188 Mass. 285, 74 N. E. 347. b* Polhemus v. Prudential Realty Corp., 74 N. J. Law, 570, 67 Atl. 303; Naef v. Potter, 127 111. App. 106, affirmed in 226 111. 628, 80 N. E. 1084; 11 L. R. A. (N. S.) 1034. 6 Post, § 88. so Ritchie v. McMullen, 79 Fed. 522, 25 C. C. A. 50; Sherman v. Mutual Life Ins. Co., 53 Wash. 523, 102 Pac. 419; Vickers v. Battershali, 84 Hun, 496, 32 N. Y. Supp. 314; Luckett v. Townsend, 3 Tex. 119, 49 Am. Dec. 723. The Roman law treated a similar stipulation (called In that law "lex com- missoria") in the same manner, holding it to be a mere nullity. However, the Roman law allowed the parties to agree that upon default in payment the creditor might take the pledge at a stipulated price, provided it was its reasonable value, and the transaction was bona fide. Story, Bailm. § 345. 202 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 contract is entered into and the pledge created by delivery, the pledgor may by a subsequent agreement release his right of re- demption to the pledgee, just as he may transfer it to a third per- son, and such a contract is valid. 67 In other words, this right of redemption cannot be strangled in its inception ; but, once existent, it may be either transferred to a third person or released to the pledgee. (3) The right of redemption may also be lost by the bar of the statute of limitations. Where the pledgee remains in possession of the pledged goods, the statute of limitations does not ordinarily begin to run against the pledgor until after a tender of the debt for which the pledge was given, and a refusal by the pledgee to restore the pledged goods upon demand by the pledgor. 68 Until then the pledgor has no cause of action, for until such tender and refusal the holding of the pledgee is rightful and the pledgor has no right either to demand the goods or sue for their recovery. Sim- ilarly the statute begins to run when the pledgee unequivocally repudiates the pledgor's interest in the goods. 68 Mere delay on the part of the pledgor (in the absence of such demand or refusal) to claim a redemption of the pledged goods will not suffice to cut off the right of the pledgor to redeem, unless this case is expressly in- cluded within the terms of the particular statute of limitations. 80 The fact that the debt secured is barred by the statute does not bar the pledgor's right to redeem ; 81 nor, on the other hand, does this fact entitle the pledgor to recover the pledged goods without " Beatty v. Sylvester, 3 Nev. 228; Rutherford v. Massachusetts Mut Life Ins. Co. (C. C.) 45 Fed. 712 ; Small v. Saloy, 42 La. Ann. 183, 7 South. 450. as Whelan's Ex'r v. Kinsley's Adm'r, 26 Ohio St. 131; Jones v. Thurmond's Heirs, 5 Tex. 318; Cross v. Eureka L. & X. Canal Co., 73 Cal. 302, 14 Pac. 885, 2 Am. St. Rep. 808; Brown v. Bronson, 93 App. Div. 312, 87 N. T. Supp. 872. eo University of North Carolina v. State Nat. Bank, 96 N. C. 280, 3 S. E. 259; Gilmer v. Morris (C. C.) 43 Fed. 456; Waterman v. Brown, 31 Pa. 161. oo Reynolds v. Cridge, 131 Pa. 189, 18 Atl. 1010 ; Chouteau v. Allen, 70 Mo. 290 ; Roberts v. Sykes, 30 Barb. (N. Y.) 173; Whelan's Ex'r v. Kinsley's Adm'r, 26 Ohio St. 131; Hancock v. Franklin Ins. Co., 114 Mass. 155; Moses v. St Paul, 67 Ala. 168; Kemp v. Westbrook, 1 Ves. Sr. (Eng.) 278. Where an arti- cle pledged is a specific chattel, there is an ample remedy at law, by replevin, if the pledgee retains the possession, or by trover or assumpsit in case he has parted with it. Bryson v. Rayner, 25 Md. 424, 90 Am. Dec. 69. The pledgor may estop himself, when the elements of estoppel are present, from setting up the statute. Lance v. Bonnell, 58 N. J. Eg.. 259, 43 Atl. 288; Waterman v. Brown, 31 Pa. 161. ei Brewster v. Hartley, 37 Cal. 15, 99 Am. Dec. 237 ; Kemp v. Westbrook, 1 Ves. (Eng.) 278; Hartranft's Estate, 153 Pa. 530, 26 Atl. 104, 34 Am. St Rep. 717; Hancock v. Franklin Ins. Co., 114 Mass. 155. § 76) . BIGHTS AND DUTIES OF THE PLEDGEE 203 paying the debt, for the obligation to pay continues, even though the remedy is barred. 62 Again, though the pledgee may not, because of the statute, then sue on the barred debt, he may either retain the pledged goods until the debt is paid or else sell them and retain the amount of the debt out of the proceeds of the sale. 63 If, as is not usually the case, the pledgor, seeking to redeem, has to invoke the powers of a court of equity, 6 * he might be met with the 'defense of laches (or that he has unduly delayed in asserting his rights), under the maxim "^quitas vigilantibus non dormientibus subvenit," even though the period prescribed by the statute of limitations has not yet run. RIGHTS AND DUTIES OF THE PLEDGEE AS AFFECTED BY PLEDGOR'S DEFAULT 76. The rights and duties of the pledgee depend largely upon whether or not there has been a default by the pledgor. As has already been seen, a pledge is a bailment that is incidental to a debt or other undertaking, which the pledge is created to secure. Until there has been a default by the pledgor in the pay- ment of this debt or the performance of this undertaking, the pledgee is little more than an ordinary mutual benefit bailee. But when the debt becomes due, or the time for the performance of the undertaking arrives and the pledgor is in default, the pledgee has unique rights not possessed at all by mutual benefit bailees in general. We shall accordingly proceed to discuss the pledgee's rights before a default by the pledgor, and later take up his rights after such a default. « Jones v. Merchants' Bank of Albany, 6 Rob. (N. Y.) 162; In re Oakley, 2 Edw. Ch. (N. Y.) 478; Spect v. Spect, 88 Cal. 437, 26 Pac. 203, 13 L. E. A. 137, 22 Am. St. Rep. 314. 63 Jones v. Thurmond's Heirs, 5 Tex. 318. o* As to the need of resorting to a court of equity by the pledgor, see Jones, Collateral Securities, § 556. As to redemption in equity, see, also, Merrill v. Houghton, 51 N. H. 61; Appeal of Conyngham, 57 Pa. 474; Bart- lett v. Johnson, 9 Allen (Mass.) 530. 204 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 RIGHTS AND DUTIES OF THE PLEDGEE BEFORE DEFAULT— ASSIGNABILITY OF THE PLEDGEE'S INTEREST 77. The interest of the pledgee is assignable. Unlike the interest of the lienholder, the interest which the pledgee acquires is transferable. 68 He may make -an absolute as- signment of all his interest in the goods pledged, 66 /or he may assign his interest conditionally, to secure payment of his own debt ; that is, he may subpledge it," or he may even deliver it to a bailee to hold for him. 88 The transfer of the pledged goods in any one of these ways would be a legal disposition of them author- ized by the nature of the pledgee's interest. 69 The subpledgee (or assignee of the original pledgee) can in turn claim the possession of the goods originally pledged, bo£h as against the original pledgor and the original" pledgee ; but such subpledgee (or assignee of the pledgee) can acquire, ordinarily, only the rights of the original pledgee. 70 es Hawkins v. Fourth Nat Bank, 150 Ind. 117, 49 N. E. 957; Brittan v. Oakland Bank of Savings, 124 Cal. 282, 57 Pac. 84, 71 Am. St. Rep. 58; Bos- well v. Thigpen, 75 Miss. 308, 22 South. 823; Rand v. Barrett, 66 Iowa, 731, 24 N. W. 530 ; T altv v_Freedman's Sav. & T. Co .. 93 U. S. 321, 23 L. Ed. 886. 6 6 Jarvis v. Rogers, 15 Mass. 389, 408; Whitaker v. Sumner, 20 Pick. (Mass.) 399; Bush v. Lyon, 9 Cow. (N. T.) 52; Ferguson v. Union Furnace Co., 9 Wend. (N. Y.) 345; Thompson v. Patrick, 4 Watts (Pa.) 414: Appeal of Ashton, 73 Pa. 153; Gpss v. Emerson , 23 N. H. 38; Bailey v. Colby, 34 N. H. 29, 66 Am. Dec. 75^; Warner v. Martin, 11 How. 209, 13 j£ Ed. 667; Calkins v. Lock wood, 17 Conn. 154, 42 Am. Dec. 729; B elden v. Perk ins, 78 111. 449; B j-arihjy v. Pq ,rfcs ; S3 Til. 169. The consent of the pledgor to tEe assignment is not necessary. Curtis v. Leavitt, 15 N. Y. 9. A pledgee of negotiable instru- ments may assign them. Chapman v. Brooks, 31 N. Y. 75; Duncomb v. New York, H. & N. R. Co., 84 N. Y. 190 ; Id., 88 N. Y. 1 ; Baldwin v. Ely, 9 How. 580, 599, 13 L. Ed. 266; Merchants' Nat Bank v. State Nat Bank, 10 Wall. 604, 19 L. Ed. 1008. 67 interurban Const. Co. v. Hayes, 191 Mo. 248, 89 S. W. 927; Drake ». Oloonan, 99 Mich. 121, 57 N. W. 1098, 41 Am. St Rep. 586; Meyer v. Moss, 110 La. 132, 34 South. l*Q; L ewis v. Mott, 36 N. Y. 395; Jarvis v. Rogers, 15 Mass. 389; National Bank of Pulaski v. Winston, 5 Bast. (Tenn.) 685; McCombie v. Davies, 7 East 5, 7. One to whom securities have been pledged to secure the payment of a note may, on negotiating the note, transfer the securities, without being liable to a suit for conversion by the pledgor. Waddle v. Owen, 43 Neb. 489, 61 N. W. 731. Nor is the consent of the original pledgor necessary. Cumming v. McDade, 118 Ga. 612, 45 S. E. 479; Coleman v. Anderson, 98 Tex. 570, 86 S. W. 730. as Ingersoll v. Van Bokkelin, 7 Cow. (N. Y.) 670. e» Ooss v. Emerson, 23 N. H. 38. to Norton v. Baxter, 41 Minn. 146, 42 N. W. 865, 4 L. R. A. 305, 16 Am. St. Rep. 679 ; Williams v. Ashe^ 111 Cal. 180, 43 Pac. 595: Interurban Const 78) RELATIVE TITLE ACQUIRED BT THE PLEDGEE 205 SAME— RELATIVE TITLE ACQUIRED BY THE PLEDGEE 78. The rights and interest of the pledgee are ordinarily neither more nor less valid than those of the pledgor. EXCEPTIONS: (1) Agency by estoppel. (2) Negotiable instruments. When a valid pledge of goods is created, the pledgee acquires rights which neither the pledgor and those in privity with him nor third parties can dispute. 71 As to third persons, by virtue of the general principle of jurisprudence that a person can confer no great- er interest in goods than he himself has, the pledgee's interest is only as valid as that of the pledgor. 72 If the pledgor has a title good against all the world, the pledgee's rights are equally as valid. If the pledgor's title is defective, the pledgee holds the pledged goods subject to the same defect. By a pledge the pledgee acquires no better rights in the goods than the pledgor had. 7a To this rule there is an exception (apparent, at least) in the case of agency by estoppel, and another exception in the case of negotiable paper. Agency by Estoppel We have already discussed instances of this kind in the case of factors, who, having no real authority as between the owner and themselves to pledge goods intrusted to them, may yet create pledges of the goods (valid against the owner) to third persons, when such owner has, by clothing the factor with the indicia of title or otherwise holding him out as having the power to pledge the goods, estopped himself from denying such authority in the factor. 74 The principle is of general application, both in the field of pledges and elsewhere, and requires no further discussion here. Negotiable Instruments When a person takes negotiable paper before maturity, without notice of any defenses to such paper, in the usual course of busi- Co. v. Hayes, 191 Mo. 24S, 89 S. W. 927; Jenckes v. Rice, 119 Iowa, 451, 93 N. W..384; Waddle v. Owen, 43 Neb. 489, 61 N. W. 731. ti See post, § 79. "Duell v. Cudllpp, 1 Hilt. (N. Y.) 166; Taylor v. Turner, S7 111. 296; Ag- new v. Johnson, 22 Pa. 471, 62 Am. Dec. 303; Hooper v. Ramsbottom, 4 Camp. (Eng.) 121; Gottlieb v. Hartman, 3 Colo. 53; Hartop v. Hoare, 3 Atk. (Eng.) 14; Patton v. Joliff, 44 W. Va. 88, 28 S. E. 740; Worthlngton v. Vette, 77 Mo. App. 445. 73 Swett v. Brown, 5 Pick. (Mass.) 178; Reeves v. Smith, 1 La. Ann. 379; Agnew v. Johnson, 22 Pa. 471, 62 Am. Dec. 303 ; Gallaher v. Cohen, 1 Browne (Pa.) 43. t* Ante,' PP. 184-185. 206 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 ness, as collateral security, and makes advances at the time upon the credit of such paper-, he is considered by all the authorities as a bona fide holder for value, within the rule for the protection of holders of commercial paper. 75 Such a negotiation cuts off pre- vious equities (as distinguished from absolute defenses, which are not thus cut off) which might have been set up against the pledgor or other prior parties, so that the pledgee thus acquires a better title than his bailor had. 76 This is really what is meant by "nego- tiable" as applied to written instruments. As to whether a pledgee who takes negotiable instruments mere- ly as security for a pre-existing debt is a holder for value, the cases are in conflict. The question is important, since, unless he is a holder for value, previous equities are not cut off, but may be set up against him just as they could be set up against the pledgor, or other prior parties. When the instrument is received in whole or part payment of i» Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Brooklyn City & N. E. Co. v. National Bank of the Republic, 102 U. S. 14, 26 L. Ed. 61 ; American Exchange Nat. Bank v. New York Belting & Packing Co., 148 N. T. 698, 43 N. E. 168; Des Moines Nat. Bank v. Chisholm, 71 Iowa, 675, 33 N. W. 234 ; Best v. Crall, 23 Kan. 482, 33 Am. Rep. 185; Bell v. Bell, 12 Pa. 235; Bowman v. Van Kuren, 29 Wis. 209, 219, 9 Am. Rep. 554; Curtis v. Mohr, 18 Wis. 615; Bond v. Wiltse, 12 Wis. 611; Jenkins v. Schaub, 14 Wis. 1; Kinney v. Kruse, 28 Wis. 183; Dix v. Tully, 14 La. Ann. 456; Warner v. Fourth Nat. Bank, 115 N. Y. 251, 22 N. E. 172; Nelson v. Eaton, 26 N. Y. 410, 416; Exchange Bank v. Butner, 60 Ga. 654; Griswold v. Davis, 31 Vt. 390; Worcester Nat. Bank v. Cheeney, 87 111. 602. One who receives, as collateral security to a loan then made, negotiable bonds not yet matured, without knowledge of any de- fense to such bonds, is entitled to protection, as a purchaser thereof, to the extent of the amount of such loan. Hayden v. Lincoln City Electric By. Co., 43 Neb. 680, 62 N. W. 73. 7« Allaire v. Hartshorne, 21 N. J. Law, 665, 47 Am. Dec. 175; Youngs v. Lee, 12 N. Y. 551 ; First Nat. Bank v. Fowler, 36 Ohio St. 524, 38 Am. Rep. 610 ; Zellweger v. Caffe, 5 Duer (N. Y.) 87, 91 ; Farwell v. Importers' & Trad- ers' Nat. Bank, 16 Wkly. Dig. (N. Y.) 20; Fisher v. Fisher, 98 Mass. 303; Stoddard v. Kimball, 6 Cush. (Mass.) 469; Draper v. Saxton, 118 Mass. 427; Buchanan v. International Bank, 78 111. 500, 504; Stotts v. Byers, 17 Iowa,. 303; Crosby v. Roub, 16 Wis. 616, 84 Am. Dec. 720; Helmer v. Commercial Bank of B. M. Webster, 28 Neb. 474, 44 N. W. 482; Haydon v. Nicoletti, 18 Nev. 290, 3 Pac. 473; Duncomb v. New York, H. & N. R. Co., 84 N. Y. 190; Richardson v. Crandall, 48 N. Y. 348, 364 ; Bank of New York v. Vanderhorst, 32 N. Y. 553; Miller v. Pollock, 99 Pa. 202; Munn v. McDonald, 10 Watts (Pa.) 270; Stotts v. Byers, 17 Iowa, 303; Crosby v. Roub, 16 Wis. 616, 84 Am. Dec. 720; Lyon v. Ewings, 17 Wis. 61; Bowman v. Van Kuren, 29 Wis. 209, 219, 9 Am. Rep. 554; Hotchkiss v. National Shoe & Leather Bank, 21 Wall. 354, 22 L. Ed. 645; Tiffany v. Boatman's Sav. Inst, 18 Wall. 375, 21 L. Ed 868; .Michigan Ins. Bank v. Eldred, 9 Wall. 544, 19 L. Ed. 763. § 78) RELATIVE TITLE ACQUIKED BT THE PLEDGEE 207 the debt," when any previously held securities are surrendered, 78 or when any indulgence or forbearance 79 is granted to the debtor, in consideration of the pledge of the instrument, then the courts agree that the pledgee is a holder for value. The dispute, then, is limited to the case when the pledgee takes the instrument, without surrendering any of his former rights, solely as security for the pre-existing debt. 80 The view supported by the great weight of authority, and the sounder reason, declares the pledgee in such cases to be a holder for value. 81 This is the rule of the United States Supreme Court, 82 " Mayer v. Heidelbach, 123 N. Y. 332, 25 N. E. 416, 9 L. B. A. 850; Ameri- can Exch. Nat. Bank v. New York Belting & Packing Co., 74 Hun, 446, 26 N. Y. Supp. 822; Ward v. Howard, 88 N. Y. 74; Chrysler v. Benois, 43 N. Y. 209; Brown v. Leavitt, 31 N. Y. 113; Youngs v. Lee, 12 N. Y. 551; Mix v. National Bank of Bloomington, 91 111. 20, 33 Am. Eep. 44 ; Bardsley v. Delp, 88 Pa. 420 ; Norton v. Waite, 20 Me. 175 ; Brush v. Scribner, 11 Conn. 388. 29 Am. Dec. 303; Dixon v. Dixon, 31 Vt. 450, 76 Am. Dec. 128; Kellogg v. Fancher, 23 Wis. 21, 99 Am. Dec. 96; McKnight v. Knisely, 25 Ind. 336, 87 Am. Dec. 364 ; Mayberry v. Morris, 62 Ala. 116. 78 Goodwin v. Conklin, 85 N. Y. 21; Phoenix Ins. Co. v. Church, 81 N. Y. 218, 37 Am. Eep. 494; Park Bank v. Watson, 42 N. Y. 490, 1 Am. Eep. 573; Salina Bank v. Babcock, 21 Wend. (N. Y.) 499. '» Central Sav. Bank v. Smith, 43 Colo. 90, 95 Pac. 307; Atlanta Guano Co. v. Hunt, 100 Tenn. 89, 42 S. W. 482; Mechanics' & Farmers' Bank of Albany v. Wixson, 42 N. Y. 438; Traders' Bank of Eochester v. Bradner, 43 Barb. (N. Y.) 379; Burns v. Eowland, 40 Barb. (N. Y.) 368; Watson v. Eandall, 20 Wend. (N. Y.) 201. so As to ordinary chattels the cases hold, in the absence of a statute, that a pledge of these merely as security for, and not in payment of, pre-existing debts does not constitute the pledgee a holder for value. Chartered Bank v. Henderson, L. E. 5 P. C. (Eng.) 501; Goodwin v. Massachusetts Loan & Trust Co., 152 Mass. 189, 25 N. E. 100 ; Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201, 10 Am. St. Eep. 377. si Jones, Collateral Securities (3d Ed.) §§ 107-121; Sackett v. Johnson, 54 Cal. 107; Tomblin v. Callen, 69 Iowa, 229, 28 N. W. 573 ; Wilkins v. Usher, 123 Ky. 696, 97 S. W. 37, 29 Ky. Law Eep. 1232 ; Birket v. Elward, 68 Kan. 295, 74 Pac. 1100, 64 L. E. A. 568, 104 Am. St. Eep. 405, 1 Ann. Cas. 272; Herman v. Gunter, 83 Tex. 66, 18 S. W. 428, 29 Am. St. Eep. 632; Hotchkiss v. Fitzgerald Patent Prepared Plaster Co., 41 W. Va. 357, 23 S. E. 576; Barney v. Earle, 13 Ala. 106; Brush v. Scribner, 11 Conn. 388, 29 Am. Dec. 303; Meadow v. Bird, 22 Ga. 246; Conkllng v. Vail, 31 111. 166; McKnight v. Knise- ly, 25 Ind. 336, 87 Am. Dec. 364; Homes v. Smyth, 16 Me. 177, 33 Am. Dec. 650; Blanchard v. Stevens, 3 Cush. (Mass.) 162, 50 Am. Dec. 723; Thacher v. Pray, 113 Mass. 291, 18 Am. Eep. 480; Outhwite v. Porter, 13 Mich. 533; Stevenson v. Hylahd, 11 Minn. 198 (Gil. 128); Struthers v. Kendall, 41 Pa. 82 Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865 ; Oates v. First Nat. Bank, 100 U. S. 239, 25 L. Ed. 580; EAILEOAD CO. v. NATIONAL BANK OF THE EEPUBLIC, 102 U. S. 14, 25, 26 L. Ed. 61, Dobie Cas. Bailments and Carriers, 119. 208 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 and is also the rule adopted by the Negotiable Instruments Law. 83 The basis of this rule has been said to be sound business policy and commercial convenience; while a technical consideration has been found in the fact of the Undertaking by the pledgee to fix the lia- bility of parties secondarily liable on the instrument by taking the proper steps at maturity, such as presentment, demand, and notice, on penalty of becoming liable himself for any loss resulting from, his neglect to take such steps. 84 The doctrine declaring the pledgee here a holder for value is in line, not only with the trend of modern decisions, but also with modern statutory definitions of "value," as in the American Sales Act. 85 This doctrine has been denied, though, by the courts of New York, 88 Ohio, 87 and many other states. 88 A pledgee of a negotiable instrument to secure future advances is protected, as a bona fide holder, for all advances made before he 214, 80 Am. Dec. €10; Dixon v. Dixon, 31 Vt. 450, 76 Am. Dec. 128. See, also, Bridgeport City Bank v. Welch, 29 Conn. 475; Manning v. McClure, 36 111. 490; President, etc., of Washington Bank v. Lewis, 22 Pick. (Mass.) 24; Fisher v. Fisher, 98 Mass. 303; Armour v. McMiehael, 36 N. J. Daw, 92; Cobb v. Doyle, 7 R. I. 550. This rule is also the established rule in England. Pdirier v. Morris, 2 El. & Bl. 89 ; Bosarquet v. Dudman, 1 Stark. 1 ; Price v. Price, 16 M. & W. 232. 83 Section 25: "An antecedent or pre-existing debt constitutes value." 84 RAILROAD CO. v. NATIONAL BANK OF THE REPUBLIC, 102 U. S. 25, 26 L. Ed. 61, Dobie Cas. Bailments and Carriers, 119. And see Penn Bank v. Frankish, 91 Pa. 339; Goodman v. Simmonds, 19 Mo. 106; Grant v. Kid well, 30 Mo. 455; Brainard v. Reavis, 2 Mo. App. 490; First Nat Bank v. Strauss, 66 Miss. 479, 6 South. 233, 14 Am. St. Rep. 579 ; Maitland v. Citi- zens' Nat. Bank, 40 Md. 540, 17 Am. Rep. 620 ; Straughan v. Fairchild, 80 Ind. 598; Continental Nat. Bank v. Townsend, 87 N. T. 10. See, also, cases cited in note 81. 85 Section 76: "Value. * * * An antecedent or pre-existing claim, whether for money or not, constitutes value where goods or documents of title are taken either in satisfaction thereof or as security therefor." See Williston, Sales, § 620. se The leading case is Bay v. Coddington, 5 Johns. Ch. (N. Y.) 54, 9 \m. Dec. 268; Coddington v. Bay, 20 Johns. (N. Y.) 637, 11 Am. Dec. 342, opin'on by Chancellor Kent. See, also, Stalker v. McDonald, 6 Hill (N. Y.) 93, 40 An. Dec. 389; Weaver v. Barden, 49 N. Y. 286 ; Prentiss v. Graves, 33 Barb. (N. Y.) 621 ; Stevens v. Brennan, 79 N. Y. 254. 87R xborough v. Messick, 6 Ohio St. 448, 67 Am. Dec. 346; City of Cleve- land v. State Bank, 16 Ohio St. 236, 88 Am. Dec. 445; Pitts v. Foglesong, 37 Ohio St. 676, 41 Am. Rep. 540. 8s Boyd v. Breck, 29 Ala. 703; Ryan v. Chew, 13 Iowa, 589; Nutter v. Stover, 48 Me. 163 ; Williams v. Little, 11 N. H. 66 ; Farmers' Nat. Bank of Tecumseh v. McCall, 25 Okl. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217; Altoona Second Nat. Bank v. Dunn, 151 Pa. 228, 25 Atl. 80, 31 Am. St. Rep. 742 ; Nichol v. Bate, 10 Yerg. (Tenn.) 429; Atlanta Guano Co. t. Hunt, 100 Tenn. 89. 42 S. W. 482. § 78) RELATIVE TITLE AOQUIBED BY THE PLEDGEE 209 receives notice of any defenses to the instrument, 89 or, if he is under a binding contract to make further advances, he is protected for advances so made after notice, up to the amount he is so bound to advance. 90 A pledgee of negotiable paper can ordinarily pass a good title thereto, though he transfers it in violation of the rights of the pledgor. 81 In other words, he has the power, though he may not have the right. But not if the transferee has notice of the character in which the pledgee holds the paper. 82 Such notice may be given by an indorsement on the instrument that it is transferred to the pledgee as collateral security. 98 Nonnegotiable Instruments But a pledgee of a nonnegotiable instrument or chose in action can acquire only the rights of the pledgor, and takes the instrument subject to all the equities which existed against the pledgor. 94 So,, too, a pledgee, in such cases, can transfer to a third person no better title than he himself has. 86 In the case of a bona fide purchaser for value of a nonnegotiable chose in action, from one upon whom the owner has, by assign- ment, conferred the apparent absolute ownership, where the pur- so Kerr v. Co wen, 17 N. C. 356; Buchanan v. International Bank, 78 111. 500; Matthews v. Rutherford, 7 La. Ann. 225. so Kerr v. Cowen, 17 N. O. 356, 358. oi Spaulding v. Kendrick, 172 Mass. 71, 51 N. B. 453; Ourrle v. Bowman, 25 Or. 364, 35 Pac. 848; Merchants' Nat. Bank of St. Paul v. Allemania Bank, 71 Minn. 477, 74 N. W. 203; Coit v. Humbert, 5 Cal. 260, 63 Am. Dec. 128; Ballard v. Burgett, 40 N. Y. 314, 318; McNeil v. Tenth Nat. Bank, 46 N. Y. 325, 7 Am. Rep. 341; Sargent v. Metcalf, 5 Gray (Mass.) 306, 66 Am. Dec. 368; Stoddard v. Kimball, 6 Cush. (Mass.) 469; Fisher v. Fisher, 98 Mass. 303; Wheeler v. Guild, 20 Pick. (Mass.) 545, 32 Am. Dec. 231; Valette v. Mason, 1 Ind. 288; Trustees of Iowa College v. Hill, 12 Iowa, 462; Patterson v. Peering, 1 A. K. Marsh. (Ky.) 326. In this respect, a pledge of negotiable paper differs from a pledge of ordinary corporeal chattels, for as to the lat- ter, in general, the pledgee can convey no greater interest than he himself has. 02 Vinton v. King, 4 Allen (Mass.) 562; National Bank of North America v. Kirby, 108 Mass. 497; Patterson v. Deering, 1 A. K. Marsh. (Ky.) 326. 3 Haskell v. Lambert, 16 Gray (Mass.) 592; Costelo v. Crowell, 127 Mass. 293, 34 Am. Rep. 367; Robins v. May, 11 Adol. & B. (Eng.) 213. 04 Works v. Meritt, 105 Cal. 467, 38 Pac. 1109; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41, 14 Am. Rep. 173 ; Fnllerton v. Sturges, 4 Ohio St. 529. o'Cowdrey v. Vandenburgh, 101 V. S. 572, 25 L. Ed. 923; International Bank v. German Bank, 71 Mo. 183, 36 Am. Rep. 468; Weirick v. Mahoning County Bank, 16 Ohio St. 297; People ex rel. Hurd v. Johnson, 100 111. 537, 39 Am. Rep. 63; Isett v. Lucas, 17 Iowa, 503, 507, 85 Am. Dec. 572; Burtis v. Cook, 16 Iowa, 194. The payee of a nonnegotiable note, secured by mort- gage, who transfers the note and mortgage as collateral security for a debt, is not liable to the transferee for any deficiency arising on foreclosure of the mortgaged premises. Haber v. Brown, 101 Cal. 445, 35 Pac. 1035. Dob.Bailm. — 14 210 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ctl. 7 chase is made upon the faith of such apparent ownership, such purchaser acquires here, as in the case of sales of corporeal chattels (under the doctrine of agency by estoppel), a title valid even as against the owner. 08 For the same reason, an innocent pledgee from one having such indicia of ownership would also (to the ex- tent of his interest as pledgee) take free from the claims of the real owner. 87 It will thus be seen that the doctrine of agency by estop- pel (applicable to all classes of property) is not the same principle as negotiability, though' either may operate to the benefit of the innocent purchaser or pledgee from one who exceeds his right or actual authority in making such sale or pledge. Certificates of Corporate Stock Certificates of stock in a corporation are not regarded as nego- tiable instruments in the sense in which that term is properly used, viz., that a negotiation cuts off latent equities and thus confers on the transferee a better title than that of the transferror. 88 They do not run to bearer or to the order of the party named in the certifi- cate, nor do they contain words of negotiability. They are not, like checks, the immediate representative of money ; they were not de- signed, like promissory notes, to circulate in place of money; nor, like corporate bonds, are they promises by the corporation to pay money. Certificates of stock are simply the muniments and evi- dence of the holder's title to a given share in the property and franchises of the corporation of which he is a member. 99 o« Combes v. Chandler, 33 Ohio St. 178; Moore v. Metropolitan Nat Bank, 55 N. Y. 41, 14 Am. Rep. 173, overruling Bush v. Lathrop, 22 N. Y. 535. See, also, Mechanics' Nat. Bank v. Comins, 72 N. H. 12, 55 Atl. 191, 101 Am. St Rep. 650. o? International Bank v. German Bank, 71 Mo. 183, 36 Am. Rep. 468; Weirick v. Mahoning County Bank, 16 Ohio St. 297; Combes v. Chandler, 33 Ohio St. 178; Weyh v. Boylan, 85 N. T. 394, 39 Am. Rep. 669; Appeal of Ash- ton, 73 Pa. 153; Cowdrey v. Vandenburgh, 101 TJ. S. 572, 25 L. Ed. 923; Merchants' Banking Co. of London v. Phoenix Bessemer Steel Co., 5 Ch. Div. (Eng.) 205, 217 ; Goodwin v. Robarts, L. R. 10 Exch. (Eng.) 76. The pledgee, however, must be without notice. Swan v. Produce Bank, 24 Hun (N. Y.) 277. »s George H. Hammond & Co. v. Hastings, 134 U. S. 401, 10 Sup. Ct 727, 33 L. Ed. 960 ; Sewall v. Boston Water Power Co., 4 Allen (Mass.) 277, 81 Am. Dec. 701; Weaver v. Barden, 49 N. Y. 286; Barstow v. Savage Min. Co., 64 Cal. 388, 1 Pac. 349, 49 Am. St. Rep. 705. The assignment of shares of railroad stock as collateral security for a pre-existing debt, not contracted on the faith of the security, confers upon the assignee no better title than his as- signor had, and he takes subject to equities. City of Cleveland v. State Bank, 16 Ohio St 236, 88 Am. Dec. 445. o» President, etc., of Mechanics' Bank v. New York & N. H. R. Co., 13 N. Y. 599 ; Wilson v. Little, 2 N. Y. 443, 447, 51 Am. Dec. 307; Appeal of Roberts, 85 Pa. 84; Weston v. Bear River & Auburn Water & Mining Co., 5 Cal. 186, 63 Am. Dec. 117 ; Pinkerton v. Manchester & L. R. R., 42 N. H. 424, 447 ; City § 78) EELATIVB TITLE ACQUIRED BY THE PLEDGEE 211 Pledges of corporate stock, then, being subject in general to the same rules as pledges of other nonnegotiable instruments and pledges of corporeal property, it follows that a pledge of stock certificates ordinarily confers on the pledgee no higher rights than those of the pledgor. 1 Here, as elsewhere, a pledge by one having a void title is invalid ; " while a pledge of goods by one having a voidable title, before his title is avoided, like a sale under similar circumstances, confers valid rights on the pledgee. 3 All that has been said in the previous section about agency by estoppel in general and about clothing one with the indicia of title (for example, by transferring the stock certificate with a blank indorsement thereon) is equally true here, and in practice finds frequent application. 4 In this connection, and elsewhere, we find, too, the law as to pledges of stock closely interwoven with the principles of agency and corporations. Bills of Lading A bill of lading is a symbol of, and stands for, the goods that it represents. Accordingly, a pledge or other transfer of the bill of lading confers the same rights (and no greater ones) as an Fire Ins. Co. v. Olmsted, 33 Conn. 476, 480; Piatt v. Hawkins, 43 Conn. 139; Piatt v. Birmingham Axle Co., 41 Conn. 255, 267; Shropshire Union Railway & Canal Co. v. Reg., L. R. 7 H. L. (Eng.) 496 ; Shipman v. iEtna Ins. Co., 29 Conn. 245; Hall v. Rose Hill & E. Road Co., 70 111. 673. i Pratt v. Taunton Copper Mfg. Co., 123 Mass. 110, 25 Am. Rep. 37 ; Davis V. Bank of England, 2 Bing. (Eng.) 393. 2 Machinists' Nat. Bank v. Field, 126 Mass. 345; Bercich v. Marye, 9 Nev. 312; Tayler v. Great Indian Peninsula Ry. Co., 4 De Gex & J. (Eng.) 559. » McNeil v. Tenth Nat Bank, 46 N. Y. 325, 7 Am. Rep. 341; Moore v. Miller, 6 Lans. (N. Y.) 396; Crocker v. Crocker, 31 N. Y. 507, 88 Am. Dec. 291; Appeal of Wood, 92 Pa. 379, 37 Am. Rep. 694; Appeal of Burton, 93 Pa. 314; Appeal of Pennsylvania R. Co., 86 Pa. 80; Otis v. Gardner, 105 111. 436; Walkef v. Detroit Transit Ry. Co., 47 Mich. 338, 11 N. W. 187; Strange v. Houston & T. C. R. Co., 53 Tex. 162; Mount Holly, L. & M. Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Thompson v. Toland, 48 Cal. 112 ; Stone v. Marye, 14 Nev. 362 ; Borland v. Clark, 26 Kan. 349. * Otis v. Gardner (1883) 105 111. 436 ; Strange v. Houston & T. C. R. Co., 53 Tex. 162; Fraser v. City Council of Charleston, 11 S. C. 486. And see cases cited in preceding note. One who pledges stock is not thereby estopped to assert his claims against the corporation for money owing him, and therefore his assignee for the benefit of creditors can enforce such claims, though it render the stock worthless. Janney v. Merchants' & Planters' Nat. Bank of Montgomery, 98 Ala. 515, 13 South. 761; Appeal of Wood, 92 Pa. 379, 37 Am. Rep. 694; Bentinck v. Bank, 3 Reports, 120, [1893] 2 Ch. (Eng.) 120; Persch v. Quiggle, 57 Pa. 247; Jarvis v. Rogers, 13 Mass. 105. The owner of stock certificates, fraudulently pledged by one holding them as trustee, is not estopped from claiming them of the pledgee, by standing by, after having notified the pledgee of his claim, and demanding the stock, and with- out protest witnessing the pledgee pay an assessment theretofore made on 212 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ql. 7 actual delivery of the goods under similar circumstances.* A thief cannot make a valid pledge or sale of the stolen goods/ even by an actual delivery of such goods ; no more could he make a valid sale or pledge by shipping the goods and transferring the bill of lading, which represents them. This necessarily leads to the con- clusion, then, that the bill of lading is no more negotiable (strictly speaking) than the goods for which it stands." Therefore, ordina- rily, the pledgee of such bill of lading acquires rights no more valid than those of the pledgor. Since the bill of lading, however, is one of the best examples that the law knows of indicia of title, this results in the frequent application of the principle of estoppel as the stock. Shaw v. Spencer, 100 Mass. 382, 97 Am. Dec. 107, 1 Am. Eep. 115. Where a bank wrongfully pledged stock deposited with it, the facts that tie stock was issued in the name of the owner, and that the power of attorney to transfer it was a detached paper, and not acknowledged before a notary public, as required by the rules of the stock exchange, do not charge the pledgees with notice of the defect in the pledgor's title. Smith v. Savin, 141 N. Y. 315, 36 N. E. 338. The law of estoppel here has been developed to such an extent as to render sales or pledges of corporate stock almost as effective to confer good title on bona fide buyers and pledgees as a like sale or pledge of negotiable instruments. Moore v. Metropolitan Nat. Bank, 55 N. Y. 41, 14 Am. Rep. 173; Mt. Holly, L. & M. Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Walker v. Detroit Transit Ry. Co., 47 Mich. 338, 11 N. W. 187. s The subject of bills of lading as collateral security is discussed at length in Jones, Collateral Securities (3d Ed.) §§ 227-279. The Carlos P. Roses; 177 TJ. S. 655, 20 Sup. Ct 803, 44 L. Ed. 929; Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607; FORBES v. BOSTON & L. R. CO., 133 Mass. 154, Dobie Cas. Bailments and Carriers, 236; Hathaway v. Haynes, 124 Mass. 311 ; First Nat. Bank of Green Bay v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; First Nat. Bank of Cairo v. Crocker, 111 Mass. 163; Allen v. Williams, 12 Pick. (Mass.) 297 ; De Wolf v. Gardner, 12 Cush. (Mass.) 19, 59 Am. Dec. 165; Bank of Rochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607; Cayuga County Nat. Bank v. Daniels, 47 N. Y. 631; Farmers' & Mechanics' Nat Bank of Buffalo v. Logan, 74 N. Y. 568; First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34; Holmes v. German Security Bank, 87 Pa. 525; Peters v. Elliott, 78 111. 321, 326 ; Michigan Cent. R. Co. v. Phillips, 60 111. 190 ; Taylor v. Turner, 87 111. 296; Security Bank of Minnesota v. Luttgen, 29 Minn. 363, 13 N. W. 151; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Adoue v. Seelig- son, 54 Tex. 593 ; McCants v. Wells, 4 S. C. 381 ; First Nat Bank of Peoria v. Northern R. R., 58 N. H. 203; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; Shaw v. North Pennsylvania R. Co., 101 TJ. S. 557, 564, 25 L. Ed. 892; Dows v. National Exchange Bank, 91 U. S. 618, 23 Ii. Ed. 214. e Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998 ; Kirkpatrick v. Kansas City, St. J. & C. B. R. Co., 86 Mo. 341; Barnard v. Campbell, 55 N. Y. 462, 14 Am. Rep. 289; Allen v. Williams, 12 Pick. (Mass.) 297; Davenport Nat Bank v. Homey er, 45 Mo. 145, 100 Am. Dec. '363; Canadian Bank of Commerce v. McCrea, 106 111. 281 ; Burton v. Curyea, 40 111. 320, 89 Am. Dec. 350 ; Evans- ville & T. H. R. Co. v. Erwin, 84 Ind. 457, 466; The Idaho, 93 TJ. S. 575, 23 L. Ed. 978, § 78) RELATIVE TITLE ACQUIRED BY THE PLEDGEE 213 already indicated, and many writers and judges have therefore said that bills of lading are quasi negotiable. 7 Bills of lading constitute such a convenient method of dealing with goods which (being in the hands of the carrier) are physically inaccessible that they are of tremendous commercial importance,* and commercial customs and usages have naturally lent to them certain distinctive characteristics, In many states statutes have been passed changing the common-law incidents of bills of lading.' Some of the statutes, using an exceedingly unfortunate terminol- ogy, have declared them negotiable in the same manner that prom- issory notes or bills of exchange are negotiable. 10 It has been held, however, that these statutes could not have been intended to change totally the character of the bill of lading and put it on the same ' Barnard v. Campbell, 55 N. T. 456, 14 Am. Eep. 289; Newhall v. Central Pac. R. Co., 51 Cal. 345, 21 Am. Rep. 713. s Among the most frequent and important of the commercial transactions involving bills of lading is the taking by the consignor of goods of the bill of lading to his order and the drawing of a draft on the consignee for the purchase price. This draft is then attached to the bill of lading and sent to a bank in the consignee's city. In such case, the bill of lading is ordinarily to be regarded as security for the acceptance of the draft by the consignee rather than for its payment. Dows v. National Exch. Bank, 91 U. S. 618, 630, 23 L. Ed. 214; National Bank of Commerce v. Merchants' Nat. Bank, 91 U.S. 92, 23 Ii. Ed. 208; Mears v. Waples, 4 Houst. (Del.) 62; Landfear v. Blossman, 1 La. Ann. 148, 45 Am. Dec. 76. As to the rights of the pledgee of the bill of lading as against attaching creditors, see NEILL v. ROGERS BROS. PRODUCE CO., 41 W. Va. 37, 23 S. E. 702, Dobie Cas. Bailments and Carriers, 122. The consignee is therefore entitled to the delivery of the bill of lading when he accepts the draft. National Bank of Commerce v. Merchants' Nat. Bank, 91 U. S. 92, 23 L. Ed. 208; Schuchardt v. Hall, 36 Md. 590, 11 Am. Rep. 514; Security Bank of Minnesota v. Luttgen, 29 Minn. 363, 13 N. W. 151; Marine Bank of Chicago v. Wright, 48 N. Y. 1; Cayuga County Nat. Bank v. Daniels, 47 N. T. 631. When the consignor of goods takes a bill of lading, which he pledges, the pledgee acquires rights superior to those of the consignee. Richardson v. Nathan, 167 Pa. 513, 31 Atl. 740; Hieskell v. Farmers' & Mechanics' Nat. Bank, 89 Pa. 155, 33 Am. Rep. 745; Bank of Rochester v. Jones, 4 N. T. 497, 501, 55 Am. Dec. 290. On the other hand, when the consignee has the bill of lading, and pledges it, the consignor cannot subsequently stop the goods in transitu without paying the pledgee the amount secured to him. Kemp v. Falk, 7 App. Cas. (Eng.) 573; Spalding v. Ruding, 6 Beav. (Eng.) 376. If a bill of lading consists of more than one part, a pledgee advancing money on one of the set has a better title than a subsequent purchaser taking the goods or a duplicate bill. Skilling v. Boll- man, 6 Mo. App. 76. And see Hieskell v. Farmers' & Mechanics' Nat. Bank, 89 Pa. 155, 33 Am. Rep. 745; Meyerstein v. Barber, L. R. 2 C. P. (Eng.) 38; Id., L. R. 4 H. h. 317, 331. « For such statutes, and cases construing them, see Jones, Collateral Se- curities (3d Ed.) §§ 233-240. io For specimens of such statutes, see Rev. Laws La. 1897, § 2485; Code Pub. Gen. Laws Md. 1904, art. 14, § 1; Rev. St. Mo. 1909, §§ 11956, 11957. 214 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 footing as promissory notes or bills of exchange. 11 Owing to essen- tial distinctions between a note or bill of exchange, on the one hand, and the bill of lading, on the other, any other holding would have led to strange, if not impossible, consequences. Warehouse Receipts The general nature of warehouse receipts has already been dis- cussed. 12 Like bills of lading, they stand for the goods they rep- resent, they are not negotiable, and their transfer is legally equiva- lent to a delivery of such goods. 13 So close is their legal parallel to bills of lading that they require no further discussion here. 14 SAME— SPECIAL PROPERTY OF PLEDGEE IN PLEDGED GOODS— RIGHT TO BRING SUIT 79. The pledgee has a special property in the pledged goods, in- volving the right to possession of them, and this he can protect by an appropriate action. The courts agree that the pledgee's interest in the pledged goods rises to the dignity of a special property. 16 Involved in this is the right to the possession of the goods, which the pledgee can assert 11 Shaw v. North Pennsylvania R. Co., 101 U. S. 557, 25 L. Ed. 892; Tiede- man v. Knox, 53 Md. 612, 614; Douglas v. People's Bank of Kentucky, 86 Ky. 175, 5 S. W. 420, 9 Am. St. Rep. 276; Jones, Collateral Securities (3d Ed.) § 241. 12 Ante, pp. 163, 196. i8 On warehouse receipts as collateral security, see Jones, Collateral Se- curities (3d Ed.) §§ 280-326; Burton v. Curyea, 40 111. 320, 89 Am. Dec. 350; Western Union R. Co. v. Wagner, 65 111. 197; Second Nat. Bank of Toledo v. Walbridge, 19 Ohio St. 419, 2 Am. Rep. 408; Gibson v. Chillicothe Branch of State Bank of Ohio, 11 Ohio St. 311; Newcomb v. Cabell, 10 Bush (Ky.) 460 ; Stewart v. Phoenix Ins. Co., 9 Lea (Tenn.) 104 ; Horr v. Barker, 8 Cal. 603; St. Louis Nat. Bank v. Ross, 9 Mo. App. 399; Fourth Nat. Bank v. St. Louis Cotton Compress Co., 11 Mo. App. 333; Gibson v. Stevens, 8 How. 384, 12 L. Ed. 1123; Chicago Dock Co. v. Foster, 48 111. 507; Ditson v. Randall, 33 Me. 202; Fourth Nat. Bank v. St. Louis Cotton Compress Co., 11 Mo. App. 333; Western Union R. Co. v. Wagner, 65 111. 197; Hoyt v. Baker, 15 Abb. Prac. N. S. (N. Y.) 405; McCombie v. Spader, 1 Hun (N. Y.) 193; Paddon v. Taylor, 44 N. Y. 371; Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289; FIRST NAT. BANK OF PARKERSBURG v. HARKNESS, 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408, Dobie Cas. Bailments and Carriers, 109 ; Bush v. Export Storage Co., 136 Fed. 918. i* Just as is the case of bills of lading, many state statutes have been passed declaring warehouse receipts negotiable. These statutes are collected in Jones, Collateral Securities (3d Ed.) §§ 283-295. io Dickey v. Pocomoke City Nat. Bank, 89 Md. 280, 43 Atl. 33; First Nat. Bank of Chicago v. Bayley, 115 Mass. 228; Moreland v. Houghton, 94 Mich. 548, 54 N. W. 285 ; Marts v. Cumberland Mut. Fire Ins. Co., 44 N. J. Law, 478. § 80) EIGHT TO USE THE PLEDGED GOODS 2 as against the world, including the pledgor. 16 This right, too, co tinues until the payment of the debt or the performance of t undertaking secured by the pledge. 17 This possession the pledgee can protect by the appropriate actic when it is tortiously interfered with either by the pledgor or 1 third parties. Thus, he may bring detinue or replevin to recov his lost possession, 18 or trover for the conversion of the goods When the pledgee sues third persons in trover, he can (it is ge erally held) recover the full value of the goods, 20 when he hoi any excess beyond his own interest on behalf of the pledgor. B when the action is against the pledgor, the pledgee then, of cour; recovers only for his own interest, usually the amount of the debt SAME— RIGHT TO USE THE PLEDGED GOODS 80. The pledgee has ordinarily' no right to use the pledged gooc Ordinarily, in the absence of any agreement or assent by tl pledgor, the pledgee has no right to use the thing pledged, 22 and ai « Robinson & Co. v. Ralph, 74 Neb. 55, 103 N. W. 1044 ; Mitchell v. McLei 127 Iowa, 733, 104 N. W. 349; Coleman v. Shelton, 2 McCord Eq. (S. C.) 1! 16 Am. Dec. 639; Yeatman v. Savings Inst, 95 U. S. 764, 24 L. Ed. 5! Mitchell v. Brown, 6 Cold. (Tenn.) 505; Printup v. Johnson, 19 Ga. 73; K tera's Estate, 17 Pa. 416. A pledgee may hold more than one security collateral for the same debt. Union Bank v. Laird, 2 Wheat. (U. S.) 390, L. Ed. 269. I'Caven v. Harsh, 186 Pa. 132, 40 Atl. 321; iEtna Ins. Co. v. Bank Wilcox, 48 Neb. 544, 67 N. W. 449; Bartlett v. Johnson, 9 Allen (Mass.) 5i isNoles v. Marable, 50 Ala. 366; Gamson v. Pritchard, 210 Mass. 296, N. E. 715. i» Miller v. McKenzie, 11 Ga. App. 494, 75 S. E. 820; Easton v. Hodg (C. C.) 18 Fed. 677; Einstein v. Dunn, 171 N. Y. 648, 63 N. E. 1116; Unit States Exp. Co. v. Meints, 72 111. 293; Treadwell v. Davis, 34 Cal. 601, Am. Dec. 770 ; Roeder v. Green Tree Brewery Co., 33 Mo. App. 69 ; Browni v. Hawkins, 4 Barb. (N. Y.) 491. The pledgee of a promissory note may mai tain an action against a pledgor for the conversion of the note, where t latter has obtained the note, though without fraud, under an agreement th he is to return it or another note, which agreement he refuses to comp with. Way v. Davidson, 12 Gray (Mass.) 465, 74 Am. Dec. 604. ■ 20 Adams v. O'Connor, 100 Mass. 515, 1 Am. Rep. 137; Ullman v. Barnai 7 Gray (Mass.) 554; Pomeroy v. Smith, 17 Pick. (Mass.) 85; Lyle v. Barki 5 Bin. (Pa.) 457; Baldwin v. Bradley, 69 111. 32; Benjamin v. Stremple, 111. 466; United States Exp. Co. v. Meints, 72 111. 293; Treadwell v. Davis, Cal. 601, 94 Am. Dec. 770 ; Soule v. White, 14 Me. 436. 2i Treadwell v. Davis, 34 Cal. 601, 94 Am. Dec. 770; Lyle v. Barker, 5 Bi (Pa.) 457, 460; Ingersoll v. Van Bokkelin, 7 Cow. (N. Y.) 681 ; Hays v Ridd 1 Sandf. (N. Y.) 248; Hurst v. Coley (C. C.) 15 Fed. 645. 22 By the civil law there are two kinds of pledges, — the pawn and an 216 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ch. 7 such use of it is wrongful. 23 The advantage accruing to the pledgee from the transaction consists solely in the right to hold the goods merely as a security, and no beneficial use by the pledgee is con- templated. In some of the older cases ** it was said that the pledgee could make any use of the pledged goods which did not thereby injure them or impair their value ; but this is clearly erroneous, and has been repudiated by practically all of the late cases. Of course (as in bailments for bailor's sole benefit 25 ), when the proper custody of the thing involves use (for example, exercising a horse), this use is treated as merely incidental to the custody, and is not such a bene- ficial use as is forbidden to the pledgee, and thus does not render him absolutely liable as an insurer for loss or injury to the thing pledged. SAME— PROFITS OF THE THING PLEDGED 81. The pledgee can hold the profits and increase of the thing pledged, but he must account for these to the pledgor. A pledgee is entitled to hold the profits and increase of the thing pledged as a part of his security, but these must be applied towards the payment of the debt secured. 26 Of course, if the debt is paid in full from other funds, the pledgee must restore such profits and increase along with the thing pledged. Thus it is the duty of the chresis. A thing is said to be pawned when a movable thing is given as security. The antichresis is when the security given consists in immovables. Rev. Civ. Code La. 1870, tit. 20, art. 3135. In the antichresis the creditor acquires the right of reaping the fruits or other revenues of the immovables given to him in pledge, on condition of deducting annually their proceeds from the interest, if any be due to him, and afterwards from the principal of his debt. Rev. Civ. Code La. 1870, tit. 20, art 3176; Livingston v. Story, 11 Pet. 351, 9 L. Ed. 746. 23 Scott v. Reed, 83 Minn. 203, 85 N. W. 1012; Champlain Const Co. v. O'Brien (C. C.) 104 Fed. 930 ; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Stearns v. Marsh, 4 Denio (N. Y.) 227, 47 Am. Dec. 248; McArthur v. Howett, 72 111. 358, 360. a* COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1 ; Thompson v. Patrick, 4 Watts (Pa.) 414. 2« Ante, p. 62. Of course, the pledgee may lawfully use the pledged chattels on the express or implied consent of the pledgor. Lawrence v. Maxwell, 53 N. Y. 19; Damon v. Waldteufel, 99 Cal. 234, 33 Pac. 903. 20 Lathrop v. Adkisson, 87 Ga. 339, 13 S. E. 517; Sokup v. Letelller, 123 Mich. 640, 82 N. W. 523 ; Pelton v. Brooks, 4 Cush. (Mass.) 203, 206 ; Merri- field v. Baker, 9 AUen (Mass.) 29; McCrea t. Yule, 68 N. J. Law, 465, 53 Atl. 210. § 81) PROFITS OF THE THINQ PLEDGED 217 pledgee to render a due account of the milk received from cows, 27 of the young of animals, 28 , of the profits from the labor of a slave, 29 of the dividends from corporate stock, 80 and of the interest received from coupons 81 on a bond. It is, in general, the duty of the pledgee to make the pledged goods yield a profit, if this can reasonably be done. When there is such a duty, express or implied, the pledgee is liable for such profits as the pledged goods might have earned, but failed to do so, owing to his neglect. 82 In the case of corporate stocks, not only is the pledgee entitled to the dividends (to be accounted for just as other profits), but it is usually held that, if the stock stands on the company's books in his name, the pledgee may vote it. 88 In many states, this right is specifically controlled by statute ; the statutory trend being in favor of the pledgor. 84 21 COGGS v. BERNARD, 2 Ld. Raym. 909, Doble Cas. Bailments and Car- riers, 1. 28 Jones, Collateral Securities,- § 396. 20 Geron v. Geron, 15 Ala. 558, 50 Am. Dec. 143; Houton v. Holliday, 6 N. C. Ill, 5 Am. Dec. 522; Woodard v. Fitzpatrick, 9 Dana (Ky.) 117, 120. so BOYD v. CONSHOHOCKBN WORSTED MILLS, 149 Pa. 363, 24 Atl. 287, Dobie Cas. Bailments and Carriers, 124; McCrea v. Yule, 68 N. J. Law 465, 53 Atl. 210; Hunsaker v. Sturgis, 29 Cal. 142; Hagar v. Union Nat. Bank, 63 Me. 509; Herrman v. Maxwell, 47 N. Y. Super. Ct. 347; Merchants' Nat. Bank v. Richards, 6 Mo. App. 454, 464; Gaty v. Holliday, 8 Mo. App. 118; Kellogg v. Stockwell, 75 111. 68, 71; Fairbanks v. Merchants* Nat. Bank of Chicago, 30 111. App. 28. 8i Androscoggin R. Co. v. Auburn Bank, 48 Me. 335. 82 Where corporate bonds were pledged to secure a debt, it was the duty of the pledgee, in the event that there was either waste or misappropriation of the properties covered by the deed of trust securing the bonds, to use rea- sonable diligence to secure the fruits thereof and to preserve and eare for their payment. State Nat. Bank v. Syndicate Co. of Eureka Springs, Ark. (C. C.) 178 Fed. 359. But when money is deposited as a pledge, while the pledgee holds it as such, he is not chargeable with interest to be paid by himself. Story, Bailm. § 339. Ordinarily, however, if the pledgee does let the money out at interest, he must account therefor. Gilson v. Martin, 49 Vt. 474; Hunsaker v. Sturgis, 29 CaL 142; Merrifleld v. Baker, 9 Allen (Mass.) 29. as Commonwealth v. Dalzell, 152 Pa. 217, 25 Atl. 535, 34 Am. St. Rep. 640: In re Argus Printing Co., 1 N. D. 434, 48 N. W. 347, 12 L. R. A. 781, 26 Am. St. Rep. 639 ; Ex parte Willcocks, 7 Cow. (N. Y.) 402, 17 Am. Dec. 525 ; In re Barker, 6 Wend. (N. Y.) 509; Becher v. Wells Flouring Mill Co. (C. C.) 1 Fed. 276. Some cases hold, even though the stock stands on the corporate books in the pledgee's name, that the pledgor has the right to vote it. State v. Smith, 15 Or. 98, 14 Pac. 814, 15 Pac. 137, 386; People ex rel. Allen v. Hill, 16 Cal. 113. See, also, McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274. See, on this subject, Cook on Corp. § 612; 3 Thomp. Comm. on Corp. § 3872. 8* For examples of statutes favorable to the pledgor's right to vote stock see Civ. Code Ariz. 1901, par. 782 ; Laws Md. 1908, c. 240, g 22 ; 1 Brightly's Dig. Pa. 1894, p. 416, § 62; Comp. St. Wyo. 1910, § 3994. 218 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ch. 7 SAME— EXPENSES ABOUT THE THING PLEDGED 82. The pledgee can charge the pledgor with expenses necessarily incurred as to the pledged goods. Expenses of the Pledge The pledgee is entitled to be reimbursed for expenses incurred by him which were reasonably necessary in keeping and caring for the pledged goods. 86 The term "expenses" is used in a broad sense, and includes the premiums paid by the pledgee on an insurance policy held in pledge, 38 money paid in removing the lien of an in- cumbrance superior to the lien of the pledge, 37 and assessments on corporate stock. 38 These expenses are added to the debt for which the pledge stands as security. Liability of Pledgee of Stock to Corporate Creditors A few words seem appropriate here as to the liability of the pledgee to creditors of the corporation for unpaid stock subscrip- tions, and also as to the liability imposed on stockholders by stat- ute. The decisions are not entirely harmonious, but it seems that, if there is an absolute transfer to the pledgee on the corporate books, then the pledgee is liable to the creditors just as if he were the ab- solute owner of the stock. 88 But if the transfer on the books is to so Furness v. Union Nat. Bank, 147 111. 570, 35 N. B. 624; Hickson Lumber Co. v. Pollock, 139 N. C. 174, 51 S. B. 855; Bank of Staten Island v. Silvie, 89 App. Div. 465, 85 N. Y. Supp. 760; Hills v. Smitl}, 28 N. H. 369; Starrett v. Barber, 20 Me. 457; Hendricks v. Eobinson, 2 Johns. Ch. (N. Y.) 283; Fagan v. Thompson (C. C.) 38 Fed. 467. One of two joint pledgees cannot recover from the other compensation for caring for and selling the pledged property, where there was no agreement therefor. Central Trust Co. of New York v. New York Equipment Co., 87 Hun, 421, 34 N. Y. Supp. 349. so These expenses, to be recoverable by the pledgee, must not be unrea- sonable. Iowa Nat. Bank v. Cooper (Iowa) 101 N. W. 459; Raley v. Boss, 59 Ga. 862. 37 Furness v. Union Nat. Bank, 147 111. 570, 35 N. E. 624. One who takes notes as collateral security for a debt is entitled, as against the owner thereof, to be allowed the cost of realizing on them, including a reasonable attorney's fee. Gregory v. Pike, 15 C. C. A. 33, 67 Fed. 837. But, for a case in which at- torney's fees were not allowed the pledgee in defending an action against the real owner, see Work v. Tibbits, 87 Hun, 352, 34 N. Y. Supp. 308. as McCalla v. Clark, 55 Ga. 53; Mabb v. Stewart, 147 Cal. 413, 81 Pac. 1073. s» 3 Thomp. Comm. on Corp. § 2937; 1 Cook, Corp. § 247; Germania Nat. Bank v. Case, 99 U. S. 628, 25 L. Ed. 448; Pullman v. Upton, 96 U. S. 328, 24 L. Ed. 818 ; Johnson v. Underbill, 52 N. Y. 203 ; In re Empire City Bank, 18 N. Y. 199; Adderly v. Storm, 6 Hill (N. Y.) 624; Holyoke Bank v. Burnham, 11 Cush. (Mass.) 183; Crease v. Babcock, 10 Mete. (Mass.) 525 ; Hale v. Walker, 31 Iowa, 344, 7 Am. Rep. 137 ; Magruder v. Colston, 44 Md. 349, 22 Am. Kep. 47; Wheelock v. Kost, 77 111. 296; Appeal of Aultinan, 98 Pa. 505. § 83) DEGREE OF CARE REQUIRED OF THE PLEDGEE 219 him as "pledgee," or otherwise indicates that he holds the stock merely as collateral, then the pledgee is not so liable. 40 Where the pledgee does not appear on the books of the company as a stock- holder, though he holds the stock certificate, again the pledgee is not liable to the creditors of the corporation. 41 In some states, statutes have been passed exempting the pledgee from such liability on stock held by him as collateral. 42 SAME— DEGREE OF CARE REQUIRED OF THE PLEDGEE 83. The pledgee must exercise ordinary care or diligence about the pledged goods. In General Apart from the somewhat anomalous case of commercial paper, this subject presents no unique difficulty. Since the pledge is a bailment for the mutual benefit of both parties (the pledgor bailor and pledgee bailee), the pledgee is held to the usual standard of diligence in such cases and is bound to exercise ordinary care. 43 40 Pauly v. State Loan & T. Co., 165 TJ. S. 606, 17 Sup. Ct. 465, 41 L. Ed. 844 ; Beal v. Essex Sav. Bank, 67 Fed. 816, 15 C. C. A. 128 ; May v. Genesee County Savings Bank, 120 Mich. 330, 79 N. W. 630. *iHenkle v. Salem Mfg. Co., 39 Ohio St. 547; Prouty v. Prouty & Barr Boot & Shoe Co., 155 Pa. 112, 25 Atl. 1001. 42 Colorado, Gen. La WS 1877, p. 150, § 210; Dakota, Laws 1879, p. 14, c. 9 ; Indiana, 1 Kev. St. 1876, p. 371, §§ 8, 9, and Rev. St. 1881, § 3008 (Burns' Ann. St. 1894, § 3431); Maryland, Code 1878, art. 40, § 61; Massachusetts, Pub. St. 1882, c. 105, § 25; Missouri, Rev. St. 1879, §§ 934, 935; New York, 2 Rev. St. 1881 (7th Ed.) p. 1548, § 11; Ohio, Rev. St. 1880, § 3259; Washington, 1 Hill's Ann. St. & Codes 1891, § 1512; Wisconsin, Rev. St. 1878, p. 532, § 1827; Wyoming, Comp. Laws 1876, c. 34, art. 1, §§ 16, 17. And see Beal v. Essex Sav. Bank, 15 C. C. A. 128, 67 Fed. 816; Pauly v. State Loan & Trust Co., 7 C. C. A. 422, 58 Fed. 666 ; Borland v. Nevada Bank of San Francisco, 99 Cal. 89, 33 Pac. 737, 37 Am. St. Rep. 32. *3 Mansur-Tebbetts Implement Co. v. Carey, 1 Ind. T. 572, 45 S. W. 120 ; MINNEAPOLIS & N. ELEVATOR CO. v. BETCHER, 42 Minn. 210, 44 N. W. 5, Dobie Cas. Bailments and Carriers, 128; O'Kelly v. Ferguson, 49 La. Ann. 1230, 22 South. 783 ; Commercial Bank of New Orleans v. Martin, 1 La. Ann. 344, 45 Am. Dec. 87; Cooper v. Simpson, 41 Minn. 46, 42 N. W. 601, 4 L. R. A. 194, 16 Am. St. Rep. 667; Girard Fire & Marine Ins. Co. v. Marr, 46 Pa. 504; Erie Bank v. Smith, 3 Brewst. (Pa.) 9; Third Nat. Bank of Baltimore v. Boyd, 44 Md. 47, 22 Am. Rep. 35; St Losky v. Davidson, 6 Cal. 643; Scott v. Crews, 2 S. C. 522; Petty v. Overall, 42 Ala. 145, 94 Am. Dec. 634; Wells v. Wells, 53 Vt. 1; Cutting v. Marlor, 78 N. T. 454; Ouderkirk v. Central Nat. Bank of Troy, 119 N. Y. 263, 23 N. E. 875; Hollister v. Central Nat. Bank of Troy, 119 N. Y. 634, 23 N. E. 878 ; Damon v. Waldteuf el, 99 Cal. 234, 33 Pac. 903; Cutting v. Marlor, 78 N. Y. 454. Where a life insurance policy is assigned to secure the assignee against a contingent liability, de- 220 BAILMBNTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 The duty and liability of the pledgee are closely analogous to those of the bailee in locatio custodiae bailments. The general question of care in mutual benefit bailments has already been sufficiently discussed,** and what has been said on that subject is equally ap- plicable to pledges. Negotiable Paper Though the theoretical standard, ordinary care, is the same in pledges of negotiable paper as in other classes of property, the prac- tical application of this standard to pledges of negotiable paper presents some unique features. In the case of the ordinary pledge of corporeal goods, only passive custody is usually demanded of the pledgee, who ultimately returns the pledged article in' the same form in which it is received. Negotiable paper, however, is valu- able, not for itself, but because it is either a promise or order to pay money, and into money it should ultimately be converted. Accordingly, at the maturity of the paper, ordinary care demands that the pledgee (even though the debt secured by the paper is not due) should proceed to take such action as is necessary to col- lect the note.* 5 Again, there are many parties to negotiable paper, who are only secondarily liable thereon (indorsers, for example); and to fix their liability certain steps (such as presentment, de- mand, and notice) must be taken. It is not ordinary care, usu- ally, unless the pledgee proceeds to take these steps ; and if he fails, without reasonable excuse, thus to proceed, and an indorser is re- leased from liability, thereby causing loss, the pledgee is respon- pendent on the life of the assured, and such assignee Is paid by a third person a sum sufficient to pay the premiums while such contingency exists, but he does not agree to pay them, he is not liable in damages to the assured's estate for permitting the policy to lapse by failure to apply the money re- ceived to the payment of such premiums. Killoran v. Sweet, 72 Hun, 194, 25 N. T. Supp. 295. Where a creditor holds as security logs, which he is to manufacture into lumber, sell the lumber, and apply the net proceeds on the debt, he must use reasonable diligence to secure the best net results, account for the proceeds, and show what expenditures were necessarily or reasonably incurred. Second Nat. Bank of Grand Forks v. Sproat, 55 Minn. 14, 56 M. W. 254. If a theft of the pawn was occasioned by his negligence, he is re- sponsible; if without any negligence, he is discharged from liability. Petty v. Overall, 42 Ala. 145, 94 Am. Dec. 634. A pledgee is responsible, also, for the negligence of his servants as well as his own negligence. But he would not be responsible for the negligence of an attorney employed to collect ne- gotiable instruments held in pledge if he used reasonable care in selecting the attorney. Commercial Bank of New Orleans v. Martin, 1 La. Ann. 344, 45 Am. Dec. 87. 4* Ante, §§ 53, 65. « Richaj flganl j. Ashby . 132 Mo. 238, 33 S. W. 806; C. H. Larkin Co. v. Dawson, 37 Tex. Civ. App. 345, S3 S. W. 882; Joliet Iron & Steel Co. v. Scioto Fire Brick Co., 82 111. 548, 25 Am. Rep. 341; Hamilton's Ex'r v. Hamilton, § 83) DEGREE OF CARE REQUIRED OF THE PLEDGEE 221 sible in damages. 40 Although no steps are necessary to fix the lia- bility of parties primarily liable on a negotiable instrument (such as the maker of a note), yet if the pledgee negligently delays col- lection and the parties become insolvent, the pledgee would, of course, be liable. 47 The pledgee will also be liable for neglecting to put the collateral in suit, when an ordinarily prudent man would sue, if any loss results from the neglect. 48 In suing on the instru- ment the pledgee collects the full amount of the instrument, 48 and holds any balance, over and above the amount secured to him, on behalf of the pledgor, unless there were equities existing against the pledgor, in which case the pledgee can collect only the amount of his own interest. 60 Where there is danger of loss, the pledgee 84 S. W. 1156, 27 Ky. Law Rep. 298; Mauck v.' Atlanta Trust & Banking Co., 113 Ga. 242, 38 S. B. 845 ; Daugherty v. Wiles (Tex. Civ. App.) 156 S. W. 1089. « Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; 1 Am. Lead. Cas. Eq. 411, 423, note; Smith v. Miller, 43 N. T. 171, 3 Am. Rep. 690; Wheeler v. Newbould, 16 N. T. 392; McLughan v. Bovard, 4 Watts (Pa.) 308; Sellers v. Jones, *22 Pa. 423; Muirhead v. Kirkpatrick, 21 Pa. 237; Betterton v. Roope, 3 Lea (Tenn.) 215, 31 Am. Rep. 633 ; ALEXANDRIA, L. & H. R. CO. v. BURKE, 22 Grat. (Va.) 254, Dobie Cas. Bailments and Carriers,. 135; Poote v. Brown, 2 McLean, 369, Fed. Cas. No. 4,909; Lee v. Baldwin, 10 Ga. 208. And see Goodall v. Richardson, 14 N. H. 567. " C. H. Larkin Co. v. Dawson, 37 Tex. Civ. App. 345, 83 S. W. 882; Hazard v. Wells, 2 Abb. N. C. (N. Y.) 444; Barrow v. Rhinelander, 3 Johns. Ch. (N. Y.) 614 ; Muirhead v. Kirkpatrick, 21 Pa. 237; Bank of TJ. S. v. Peabody, 20 Pa. 454; Sellers v. Jones, 22 Pa. 423; Lyon v. Huntingdon Bank, 12 Serg. & R. (Pa.) 61; Lamberton v. Windom, 12 Minn. 232 (Gil. 151), 90 Am. Dec. 301; Noland v. Clark, 10 B. Mon. (Ky.) 239; Roberts v. Thompson, 14 Ohio St. 1, 82 Am. Dec. 465 ; Reeves v. Plough, 41 Ind. 204. "Ex parte Mure, 2 Cox, Ch. 63; Williams v. Price, 1 Sim. & S. 581; Wake- man v. Gowdy, 10 Bosw. (N. Y.) 208; Hoard v. Garner, 10 N. Y. 261; Lyon v. Huntingdon Bank, 12 Serg. & R. (Pa.) 61; Lamberton v. Windom, 12 Minn. 232 (Gil. 151), 90 Am. Dec. 301; Slevin v. Morrow, 4 Ind. 425, 426; Whitin v. Paul, 13 R. I. 40. But see 1 Am. Lead. Cas. 404. The same rule applies to securities, not negotiable, held as collateral; for instance, a judgment. Hanna v. Holton, 78 Pa. 334, 21 Am. Rep. 20. If a pledgee, without the con- sent of the debtor, renews or extends a note pledged as collateral, or sur- renders such note and takes new security, he must account to his debtor as if he had collected it in full. Haas v. Bank of Commerce, 41 Neb. 754, 60 N. W. 85. Particularly is this true when pledgee allows the note to be barred by the statute of limitations. Farm Inv. Co. v. Wyoming College and Normal School, 10 Wyo. 240, 68 Pac. 561. "No demand by the pledgee on the maker is necessary in such case to enable him to sue. White v. Phelps, 14 Minn. 27 (Gil. 21), 100 Am. Dec. 190. so Williams v. Smith, 2 Hill (N. Y.) 301; City Bank v. Taylor, 60 Iowa, 66, 14 N. W. 128 ; Steere v. Benson, 2 111. App. 560 ; Valette v. Mason, 1 Ind. 288; Mayo v. Moore, 28 111. 428; Ehrler v. Worthen, 47 111. App. 550 ; Barmby v. Wolfe, 44 Neb. 77, 62 N. W. 318 ; Haas v. Bank of Commerce, 41 Neb. 754, 60 N. W. 85. So, in the case of a note given for the pledgor's accommodation. 222 BAILMENTS FOB MUTUAL BENEFIT? PLEDGES (Ch. 7 should immediately proceed to collect the collateral, though the pledge debt is not then due. 51 Ordinarily the pledgee of negotiable paper (or even of nonnego- tiable choses in action) has no right, without the consent of the pledgor, to compromise and take less than what is due on the in- strument, and in such case the pledgee might be held responsible for the difference between the amount received under the compro- mise and face value of the instrument pledged. 62 To this rule there are exceptions, however, as, for example, when the maker of a note is insolvent and the compromise was an advantageous one for the pledgor, since the amount secured was more than could have been collected by suing on the instrument. 58 SAME— REDELIVERY OF THE PLEDGED GOODS 84. The pledgee must, on redemption by the pledgor, redeliver the identical things pledged, except in cases of certificates of corporate stock. Redelivery of Things Pledged When the pledge is redeemed by payment of the debt or per- formance of the undertaking secured, it is the duty of the pledgee to redeliver the goods pledged, together with all their increase and profits. 5 * This duty is fulfilled only by a delivery of the identical Atlas Bank v. Doyle, 9 R. I. 76, 98 Am. Dec. 368, 11 Am. Rep. 219; Doud 7. Reid, 53 Mo. App. 553. Where the debt for which a note was pledged Is paid pending an action on the note by the pledgee, the latter may continue the action, subject to all equitable defenses, holding the proceeds as trustee for the pledgor. First Nat. Bank of Johnson City v. Mann, 94 Tenn. 17, 27 S. W. 1015, 27 L. R. A. 565. Where notes held as collateral are impounded in an equity suit, the pledgee is still entitled to control the same, so far as necessary to bring an action at law thereon, and have the proceeds paid into court. Gregory v. Pike, 15 C. C. A. 33, 67 Fed. 837. si Seeley v. Wickstrom, 49 Neb. 730, 68 N. W. 1017; Field v. Sibley, 74 App. Div. 81, 77 N. T. Supp. 252. 5 2 Powell v. Ong, 92 111. App. 95; Hawks v. Hinchcliff, 17 Barb. (N. Y.) 492; Grant v. Holden, 1 E. D. Smith (N. Y.) 545; Gage v. Punchard, 6 Daly (N. Y.) 229 ; Garlick v. James, 12 Johns. (N. Y.) 146, 7 Am. Dec. 294 ; Zimple- man v. Veeder, 98 111. 613; Union Trust Co. v. Rigdon, 93 111. 458; Depuy v. Clark, 12 Ind. 427 ; Wood v. Matthews, 73 Mo. 477, 479 ; Stevens v. Hurlbut Bank, 31 Conn. 146. as When the compromise yields more than could have been realized from a suit, then the pledgor is benefited rather than injured by the transaction. It would seem though that the burden of showing this would rest on the pledgee making the compromise. See Powell v. Ong, 92 111. App. 95, 54 Whittaker v. Amwell Nat. Bank, 52 N. J. Eq. 400, 29 AU. 203; Dean v. Lawham, 7 Or. 422; Davenport v. Tarlton, 1 A. K. Marsh. (Ky.) 244; Woodard § 84) REDELIVERY OP THE PLEDGED GOOD8 223 thing pledged, " with the exception of certificates of corporate stock. 56 Since the certificate is merely evidence of certain rights in the corporation, the return of a similar (though not the identical) cer- tificate, showing that the pledgor is entitled to the same rights, re- sults in no loss to the pledgor. " And the nature of the whole transaction is foreign to fhe idea that the specific stock certificate should be an object of personal attachment or should have any unique value in the estimation of the pledgor. There are a few cases, however, holding the contrary view. 68 Conversion by the Pledgee As it is the duty of the pledgee to redeliver the pledged goods upon redemption, if he wrongfully sells or otherwise disposes of them, he is guilty of a conversion. 69 The pledgor, in such a case, is not limited to his (1) right to sue either the pledgee 60 or the v. Fitzpatrick, 9 Dana (Ky.) 117; Hunsaker v. Sturgis, 29 Cal. 142; Geron v. Geron, 15 Ala. 558, 50 Am. Dec. 143 ; Houton v. Holliday, 6 N. C. Ill, 5 Am. Dec. 522. oo The pledgee must redeliver the Identical article pledged, where it is dis- tinctive in its character, and for a failure to do so renders himself liable in trover. Ball v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 263. And equity may be invoked for this purpose where the law fails. Bryson v. Ray- ner, 25 Md. 424, 90 Am. Dec. 69. See, also, the cases cited in note 59. o« Gilpin v. Howell, 5 Pa. 41, 45 Am. Dec. 720; Horton v. Morgan, 19 N. Y. 170, 75 Am. Dec. 311; Gruman v. Smith, 81 N. Y. 25; Stewart v. Drake, 46 N. Y. 449; Worthington v. Tormey, 34 Md. 182; Atkins v. Gamble, 42 Cal. • 86, 10 Am. Kep. 282; Hawley v. Brumagim, 33 Cal. 394. And, as to redelivery of the identical bonds deposited in pledge, see Stuart v. Bigler's Assignees, 98 Pa. 80. 07 Hubbell v. Drexel (C. C.) 11 Fed. 115 ; Lecroy v. Eastman, 10 Mod. (Eng.) 499, 88 Eng. Reprint, 285 ; Hayward v. Rogers, 62 Cal. 348. os See 2 Thompson, Comm. Corp. §§ 2651-2653; Fay v. Gray, 124 Mass. 500; Langton v. Waite, L. R. 6 Eq. (Eng.) 165; Allen v. Dubois, 117 Mich. 115, 75 N. W. 443, 72 Am. St. Rep. 557. os Radigan v. Johnson, 174 Mass. 68, 54 N. E. 358; Romero v. Newman, 50 La. Ann. 80, 23 South. 493 ; Toplitz v. Bauer, 161 N. Y. 325, 55 N. E. 1059 ; Brown v. First Nat. Bank, 132 Fed. 450, 66 C. C. A. 293; Ric hardson v. Ashby , 132 Mo. 238, 33 S. W. 806. The pledgee may recoup the amount of his debt when sued for the conversion of the pledged property, or for any tort with respect thereto. Stearns v. Marsh, 4 Denio (N. Y.) 227, 47 Am. Dec. 248. Where assignors for benefit of creditors, before the assignment, convert stock pledged to them as security, the pledgor is not entitled to payment in full for his claim for the value of the stock converted out of the assigned estate, on the ground that the conversion was a breach of trust, which entitled him to follow the proceeds specifically. In re Jamison & Co.'s Estate, 163 Pa. 143, 29 Atl. 1001. The fact that the transferee of pledged securities converts them does not render the original pledgee liable in trover. Waddle v. Owen, 43 Neb. 489, 61 N. W. 731. eoHarrell v. Citizens' Banking Co., Ill Ga. 846, 36 S. E. 460; Hurst v. Coley (C. C.) 15 Fed. 645 ; Hays v. Riddle, 1 Sandf. (N. Y.) 248. 224 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 purchaser " for the conversion ; but the pledgor may (2) recovei the goods from such purchaser or any other party into whose hands they may have come, 62 or (3) waive the tort and sue the pledgee in assumpsit for such purchase money, while the latter may use the amount of the pledged debt as an offset. 83 The question of the measure of damages, when the pledgor sues the pledgee for conversion of the pledged goods, is not without dif- ficulty. The usual measure in cases of conversion is the fair value of the goods at the time of the conversion ; " and this, ordinarily, in the case in question, would be both fair and easy to apply, allow- ing the pledgee to offset the amount of the debt secured. 86 fcWhen, however, the pledged goods are subject, like corporate stocks, to rapid fluctuations in value, and particularly when some time elapses before the pledgor learns of the conversion, then different consider- ations apply, and this measure might work either undue advantage or great prejudice to the pledgor. Some courts, however, have clung to the old rule of the value of the goods at the time of the conversion, even though it might com- pel the pledgor practically to stand by a sale made at a low price,, at a time when he would never have consented to sell. 66 Other courts fix the damages- atlli£-JialM^^fJ±^£XKidfi,at^£.lime^the " pledgor's deman d. 67 This is objectionable in allowing the pledgor, by postponinglTemand, .thus to speculate as to the rise or fall in the value of the goods. Still more objectionable is the rule that the pledgor can recover the highest value between the time of the con- • i Gregg t. Bank of Columbia, 72 S. C. 458, 52 S. B. 195, 110 Am. St. Rep. 633; Usher v. Van Vranken, 48 App. Div. 413, 63 N. T. Supp. 104. ss Johnson v. Succession of Bobbins, 20 La. Ann. 569; Winston v. Rawson, 38 111. App. 193; G erman SaY >-Baak_of Baltimor e City v. Rensha w, 78 Md. 475, 28 Atl. 281. ~ ~ " oa Union Nat. Bank v. Post, 192 111. 385, 61 N. E. 507; Mayo v. Peterson, 126 Mass. 516; Brown v. First Nat. Bank, 132 Fed. 450, 66 C. C. A. 293; Hinckley v. Pflster, 83 Wis. 64, 53 N. W. 21. e* DImock v. United States Nat Bank, 55 N. J. Law, 296, 25 Atl. 926, 39 Am. St. Rep. 643; Robinson v. Hurley, 11 Iowa, 410, 79 Am. Dec. 497; Blood v. Erie Dime Savings & Loan Co., 164 Pa. 95, 30. Atl. 362 ; Loomis v. .Stave, 72 111. 623; B ejden v. Perking , 78 111. 449; Fowle v. Ward, 113 Mass. 548, 18 Am. Rep. 534; Newcomb-Buchanan Co. v. Baskett, 14 Bush (Ky.) 658; Rosenzweig v. Frazer, 82 Ind. 342 ; Hudson v. Wilkinson, 61 Tex. 606; Grimes v. Watkins, 59 Tex. 140. «o Stearns v. Marsh, 4 Denlo (N. Y.) 227, 47 Am. Dec. 248. oa Fisher v. George S. Jones Co., 108 Ga. 490, 34 S. E. 172; Third Nat Bank of Baltimore v. Boyd, 44 Md. 47, 22 Am; Rep. 35; Sterling v. Garritee, 18 Md. 468; Union Trust Co. v. Rigdon, 93 111. 458. 8T Pinkerton v. Manchester & L. R. R., 42 N. H. 424; Reynolds v. Witte, 13 S. C. 5, 36 Am. Rep. 678; Baltimore City Pass. Ry. Co. v. Sewell, 35 Md 238, 6 Am. Rep. 402; Fowle v. Ward, 113 Mass. 548, 18 Am. Rep. 534. § 85) BIGHTS AND DUTIES OF THE PLEDGEE AFTEB DEFAULT 225 version and the trial 6S for this would tempt the pledgor to post- pone unduly bringing suit, in the hope that the value might reach in the future a higher figure than it had yet done. The fairest rule, which is most consonant with reason, fixes the damages at the highest value of the goods within a reasonable time after the pledgor learns of the conversion. 89 This is the rule in New York 70 (where such transactions are most frequent), and has the support of the United States Supreme Court. 71 This involves no speculative elements, but contemplates restoring the pledgor to the position in which he would have been, had not his rights been violated, and presumes that, after learning of the conversion, the pledgor would act reasonably to restore himself to that position. RIGHTS AND DUTIES OF THE PLEDGEE AFTER DE- FAULT—IN GENERAL 85. Default by the pledgor in the debt or engagement secured con- fers unique rights on the pledgee, who then becomes more than a mere bailee. The pledgee's chief concern then be- comes the realization of such debt or the performance of such engagement, and the methods of dealing with the pledged goods to encompass this end. In General The rights and duties of the pledgor were considered in some detail without distinctive reference to the question of default on the obligation secured. 72 As to the pledgee, however, so great a •» See Gregg v. Columbia Bank, 72 S. C. 458, 52 S. B. 195, 110 Am. St. Rep. 633, holding that the court may instruct the jury that they may fix the damages as the value at the time of the conversion or as the highest value up to the time of the trial. As to the measure of the highest intermediate value between the conversion and demand, see Bank of Montgomery v. Reese, 26 Pa. 143; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307. e» Smith v. Savin, 141 N. T. 315, 36 N. E. 338; Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507 ; Wright v. Bank of Metropolis, 110 N. Y. 237, 18 N. B. 79, 1L.E.A. 289, 6 Am. St. Rep. 356; GALIGHBR v. JONES, 129 TJ. S. 193, 200-202, 9 Sup. Ct. 335, 32 L. Ed. 658, Dobie Cas. Bailments and Carriers, 126. The rule of higher intermediate value is discussed at great length, with an elaborate review of the cases, in 2 Sedgwick, Damages (9th Ed.) c. 22, §§ 507-525. See, also, Jones, Collateral Securities (3d Ed.) §§ 750-757a. 'o Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507; Wright v. Bank of Metropolis, 110 N. Y. 237, 18 N. B. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356. " GALIGHER v. JONES, 129 U. S. 193, 200-202, 9 Sup. Ct 335, 32 L. Ed. 658, Dobie Cas. Bailments and Carriers, 126. "Ante, § 75. Dob.Bailm. — 15 226 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 changt is wrought in his position and attitude by the default of the pledgor that the pledgee's duties and rights must necessarily be treated as revolving about this important fact. Those rights and duties accruing before default have just been considered. 78 Those arising on the pledgor's default in the obliga- tion secured next demand attention. It is then that the distinctive features of the pledge, and the peculiar rights that accrue to pledgees apart from other bailees, are brought into being. These questions naturally turn about the pledgee's dealing with the pledg- ed goods to protect himself from the consequences of such default, for it is in contemplation of that contingency that the pledge re- lation owes its very inception. The pledgee's rights are varied, but cumulative. 7 * SAME— HOLDING THE PLEDGED GOODS 86. The pledgee may, if he so sees fit, continue to hold the pledged goods as security, without taking any other action. After the pledgor is in default as to the debt secured or the un- dertaking to be performed, the pledgee may ordinarily continue to hold the pledged goods as security for such payment or perform- ance. He may be content with this right, without taking any other action. 76 Whether, besides holding the goods, he shall pursue any other of his remedies, is a matter which he may decide. Such ad- ditional remedies are cumulative, and he has his option as to wheth- er he shall resort to any of them. Simply holding the pledged goods, as the lienor does, is the least effective of his remedies ; but still the pledgee, if he so wishes, may elect that remedy, and that alone, and decline to sell, even though so requested by the pledg- or. 76 " Ante, §§ 77-84. 7* Ernes v. Widdowson, 4 Car. & P. (Eng.) 451; Beckwith v. Sibley, 11 Pick. (Mass.) 482 ; Barnes v. Bradley, 56 Ark. 105, 19 S. W. 319; Mitchell v. Roberts (C. C.) 17 Fed. 776; Whitwell v. Brigham, 19 Pick. (Mass.) 117. '« Robinson v. Hurley, 11 Iowa, 410, 79 Am. Dec. 479; Rozet v. McClellan, 48 111. 345, 95 Am. Dec. 551. A contract may make it the duty of the pledgee to sell within a specified time, and his failure to do so is then such breach of duty as will render him answerable to the pledgor. Cooper v. Simpson, 41 Minn. 46, 42 N. W. 601, 4 L. R. A. 194, 16 Am. St, Rep. 667. '« Simonton v. Sibley, 122 TJ. S. 220, 7 Sup. Ct. 1351, 30 L. Ed. 1225; Fur- ness v. Union Nat. Bank, 147 111. 570, 35 N. E. 624 ; MINNEAPOLIS & N. ELEVATOR CO. v. BETCHER, 42 Minn. 210, 44 N. W. 5, Dobie Cas. Bail- ments and Carriers, 128. Hence the pledgee is not liable for depreciation in value of the pledged goods, though he might have avoided this by selling § 87) SUIT ON THE DEBT OE ENGAGEMENT SECURED 227 But the duty of exercising ordinary care as to the pledged goods may require a sale by the pledgee," as in the case of perishable goods. And, in exceptional cases, where the goods may decrease in value, a court of equity might force the pledgee to sell. Subject to these qualifications, however, the pledgor cannot compel a sale; his only right is to redeem by paying the debt or performing the engagement secured. 78 SAME— SUIT ON THE DEBT OR ENGAGEMENT SECURED 87. The pledgee, without in any way impairing his rights in the pledged goods, may bring suit against the pledgor on the debt or undertaking secured. The pledge is a security for the debt, not a substitute therefor. It is a cumulative remedy, conferring added rights, without im- pairing those already existing. Accordingly, the pledgee creditor can bring suit personally on the debt against the pledgor debtor, without affecting his lien and rights in the pledged goods. 79 Nor is promptly on default. O'Neill v. Whigham, 87 Pa. 394; Rozet v. McClellan, 48 111. 345, 95 Am. Dec. 551 ; Field v. Leavitt, 37 N. T. Super. Ct. 215. 77 Franklin, etc., Inst. v. Preetorious, 6 Mo. App. 470; Field v. Leavitt, 37 N. T. Super. Ct 215. 78 Colquitt v. Stultz, 65 Ga. 305; Newsome v. Davis, 133 Mass. 343; Mueller v. Nichols, 50 111. App. 663. 7 Savings Bank v. Middlekauf, 113 Cal. 463, 45 Pac. 840; Lormer v. Bain, 14 Neb. 178, 15 N. W. 323; Ketcham v. Provost, 156 App. Div. 477, 141 N. Y. Supp. 437; Ernes v. Widdowson, 4 Car. & P. (Eng.) 151; Commercial Sav. Bank v. Hornberger, 140 Cal. 16, 73 Pac. 625; Butterworth v. Kennedy, 5 Bosw. (N. T.) 143; Rogers v. Ward, 8 Allen (Mass.) 387, 85 Am. Dec. 710; Darst v. Bates, 95 111. 493; Whitwell v. Brigham, 19 Pick. (Mass.) 117; Beck- with v. Sibley, 11 Pick. (Mass.) 482; Sonoma Val. Bank v. Hill, 59 Cal. 107; Jones v. Scott, 10 Kan. 33; SMITH v. STROUT, 63 Me. 205, Dobie Cas. Bailments and Carriers, 129 ; Bhrlick v. Bwald, 66 Cal. 97, 4 Pac. 1062 ; Grand Island Sav. & Loan Ass'n v. Moore, 40 Neb. 686, 59 N. W. 115; Ambler v. Ames, 1 App. D. C. 191. The person holding collateral securities is not bound to resort to them before suing upon his principal claim; but, when that claim is satisfied, he may be compelled to release or reassign the col- laterals. Wallace v. Finnegan, 14 Mich. 170, 90 Am. Dec. 243. If a pawn is lost or injured, the pledgor can set off against the debt for which it stood as security the loss or injury attributable to any want of necessary care and diligence upon the pledgee's part. Crocker v. Monrose, 18 La. 553, 36 Am. Dec. 660; Cooper v. Simpson, 41 Minn. 46, 42 N. W. 601, 4 L. R. A. 194, 16 Am. St. Rep. 667. Of course, when the contract specifies that the pledgee is to look alone to the pledged goods for the debt, then the pledgor cannot be personally sued. Archibald v. Argall, 53 111. 307; Wilhelm v. Schmidt, 84 111. 183; Cornwall v. Gould, 4 Pick. (Mass.) 444; Beckwith v. Sibley, 11 Pick. (Mass.) 482; Bigelow v. Walker, 24 Vt 149, 58 Am. Dec. 156. 228 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Chi 7 the pledge affected by the pledgee's obtaining a judgment against the pledgor for the amount of the debt. 80 Though the debt may be merged in the judgment, the obligation to pay still remains in a new form and evidenced by a higher security ; but the property pledged for its payment still remains liable therefor. The pledgee in a suit on the debt may even, as in other cases, attach the pledged goods ; but by so doing, it seems, he waives the lien of the pledge, and sub- stitutes therefor the in rem rights of an attaching creditor. 81 When the judgment is fully satisfied, however, this is equivalent to a pay- ment of the debt, which, of course, immediately extinguishes the pledge. 82 In this connection it might be noted that so independent are the pledge and the debt secured (as far as the pledgee is concerned) that the pledge may be (and frequently is) terminated without at all affecting the debt. Thus a valid tender of the amount of the debt, or a redelivery of the goods to the pledgor, would terminate the pledge ; 8S but neither the tender by the pledgor nor the rede- livery by the pledgee would extinguish the debt, which would still continue. 8 * Since the right to sue on the debt is an independent one, which can be exercised by the pledgee without proceeding against the goods pledged, the pledgor, when thus sued, cannot set off the val- ue of such goods, and thereby reduce the amount of the pledgee's recovery. 86 The existence of such a right on the pledgor's part would practically negative all that has just been said in regard to the relation between the debt and the pledge. When there has been a conversion of the pledged goods by the pledgee, this, of course, gives a right of action to the pledgor. Whether the pledgor can set this up in defense, by way of set-off or recoupment, when sued so Fairbank v. Merchants' Nat. Bank of Chicago, 132 111. 120, 22 N. B. 524; Barnes v. Bradley, 56 Ark. 105, 19 S. W. 319; Black v. Reno (C. C.) 59 Fed. 917 ; SMITH v. STROUT, 63 Me. 205, Dobie Cas. Bailments and Carriers, 129; Jones v. Scott, 10 Kan. 35 ; Charles v. Coker, 2 S. C. 122. Even securing an execution on the judgment and arresting the debtor does not affect the pledgee's right to hold the pledged goods. SMITH v. STROUT, 63 Me. 205, Dobie Cas. Bailments and Carriers, 129. si Citizens' Bank v. Dows, 68 Iowa, 460, 27 N. W. 459; SMITH v. STROUT, 63 Me. 205, Dobie Cas. Bailments and Carriers, 129; Sensenbrenner v. Mat- thews, 48 Wis. 250, 3 N. W 599, 33 Am. Rep. 809 ; Legg y. Willard, 17 Pick. (Mass.) 140, 28 Am. Dec. 282; Whitaker v. Sumner, 20 Pick. (Mass.) 399; Buck v. Ingersoll, 11 Mete. (Mass.) 226. Contra: Arendale v. Morgan, 5 Sneed (Tenn.) 703. 82 Post, § 89. ss Post, § 89. s* Jones, Collateral Securities (3d Ed.) § 592; Mitchell v. Roberts (0. 0.) 17 Fed. 776. so Winthrop Sav. Bank v. Jackson, 67 Me. 570, 24 Am. Rep. 56. § 88) SALE OP THE PLEDGED GOODS 229 on the debt by the pledgee, is a question depending largely on the pleading, practice, and the statutes of the various states. The liberalizing trend of modern procedural law, though, has been to- ward allowing this to be done. 88 In those states which permit this to be done, it is generally held that the pledgee, when suing on the debt, must produce the pledged goods or account for their non- production. 87 SAME— SALE OF THE PLEDGED GOODS 88. The pledgee may sell the pledged goods : (1) At common law, upon notice to the pledgor. (2) By a proceeding in equity, when his common-law right of sale is not clear, or is disputed, or when an accounting is necessary. (3) Under a power of sale given by the pledge contract. (4) Under a power of sale given by statute, which either may or may not take away the right to sell at common law or un- der the pledge contract, according to the language of the particular statute. Sale at Common Law Perhaps the most frequent procedure, upon the pledgor's default, is a sale of the pledged goods by the pledgee under the power of sale existing at common law by virtue of the pledge. 88 An assignee of the pledgee's interest has the same right to sell that the pledgee has. 89 Where the pledgor is not the owner of the goods, and pledg- es Stearns v. Marsh, 4 Denio (N. T.) 227, 47 Am. Dec. 248; Cass v. Higen- botam, 27 Hun (N. Y.) 406, 408; Bigelow v. Walker, 24 Vt. 149, 58 Am. Dec. 156; Bank of British Columbia v. Marshall (C. C.) 11 Fed. 19; Donnell v. Wyckoff, 49 N. J. Law, 48, 7 Atl. 672; Haskell v. Africa. 68 N. H. 421, 41 Atl. 73. »' Jones, Collateral Securities (3d Ed.) § 596 ; Ocean Nat. Bank of City of New York v. Fant, 50 N. Y. 474; Smith v Rockwell, 2 Hill (N. Y.) 482; Stuart v. Bigler's Assignees, 98 Pa. 80; Spalding v. Bank of Susquehanna County, 9 Pa. 28. ssMauge v. Heringhi, 26 Cal. 577; Vaupell v. Woodward, 2 Sandf. Ch. (N.. Y.) 143 ; Garlick v. James, 12 Johns. (N. Y.) 146, 7 Am. Dec. 294 ; De Lisle v. Priestman, 1 Browne (Pa.) 176; Cushman v. Hayes, 46 111. 145; Union Trust Co. v. Bigdon, 93 111. 458; Eobinson v. Hurley, 11 Iowa, 410, 79 Am. Dec. 497; Kemp v. Westbrook, 1 Ves. (Eng.) 278; Union Cattle Co. v. International Trust Co., 149 Mass. 492, 21 N. E. 962; Sharpe v. National Bank of Birming- ham, 87 Ala. 644, 7 South. 106; McDowell v. Chicago Steel Works, 124 111. 491, 16 N. E. 854, 7 Am. St. Rep. 381. 8» Ante, § 77; Jones, Collateral Securities (3d Ed) § 418; Donald v. Su ckling. L. R. 1 Q. B. (Eng.) 585; Talty V. Freedman'a Say. & T. "(g o., 93 U. ~RT321, 23 L. Ed. 886. " """" 230 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 es merely his interest therein, then, of course, the pledgee can sell only the pledgor's limited interest. 80 This common-law sale is a general right, but does not extend to pledges of commercial paper. 91 It is contemplated that the proper method of realizing on negotiable bills and notes is by collecting them ° 2 rather than selling them. In such a case, the pledgee should hold the bills or notes, collect them as they fall due, and apply the proceeds towards the payment of the debt secured. 88 The pledgee would not be justified in selling such paper at less than its value, either at a private or public sale, unless so authorized by the pledge contract. 84 But negotiable bonds, which (especially in the case of »o Harding v. Eldridge, 186 Mass. 39, 71 N. E. 115. oi For remedies on pledges of negotiable paper, see Jones, Collateral Se- curities (3d Ed.) c. 17 ; Stevens v. Wiley, 165 Mass. 402, 43 N. E. 177; Boswell v. Thigpen, 75 Miss. 308, 22 South. 823 ; E. F. Hallack Lumber & Mfg. Co. v. Gray, 19 Colo. 149, 34 Pac. 1000. »2 ALEXANDRIA, L. & H. R. CO. v. BURKE, 22 Grat. (Va.) 254, Dobie Cas. Bailments and Carriers, 135; Union Trust Co. v. Rigdon, 93 111. 458; Zimpleman v. Veeder, 98 111. 613; Fletcher v. Dickinson, 7 Allen (Mass.) 23, 25; Brookman v. MetcaE, 5 Bosw. (N. T.) 429; Brown v. Ward, 3 Duer (N. Y.) 660; Lamberton v. Windom, 12 Minn. 232 (Gil. 151), 90 Am. Dec. 301; Morris Canal & Banking Co. v. Lewis, 12 N. J. Eq. 323; In re Litchfield Bank, 28 Conn. 575; Whitteker v. Charleston Gas Co., 16 W. Va. 717; Hunt v. Nevers, 15 Pick. (Mass.) 500, 26 Am. Dec. 616 ; Joliet Iron & Steel Co. v. Scioto Fire Brick Co., 82 111. 548, 25 Am. Rep. 341; Wheeler v. Newbon ld, 16 N. Y. 392; Fletcher v. Dickinson, 7 Allen (Mass.) 23, 25. So a savings bank book cannot be sold by a pledgee. Boynton v. Payrow, 67 Me. 587 An ordinary note and mortgage pledged cannot be sold. Morris Canal & Banking Co. v. Fisher, 9 N. J. Eq. 667, 64 Am. Dec. 423. »3 Cleghorn v. Minnesota Title Insurance & Trust Co., 57 Minn. 341, 59 N. W. 320, 47 Am. St. Rep. 615; Handy v Sibley, 46 Ohio St. 9, 17 N. E. 329; Zimpleman v. Veeder, 98 111. 613. See ante. si Powell v. Ong, 92 111. App. 95; Union Trust Co. v. Rigdon, 93 111. 458; Fletcher v. Dickinson, 7 Allen (Mass.) 23, 25; Washburn v. Pond, 2 Allen (Mass.) 474; Stearns v. Marsh, 4 Denio (N. Y.) 227, 47 Am. Dec. 248; Hunter v. Hamilton, 52 Kan. 195, 34 Pac. 782. A power of sale does not deprive the pledgee of the right to sue on the paper. Nelson v. Eaton, 26 N. Y 410; Nelson v. Edwards, 40 Barb. (N. Y.) 279 ; Nelson v. Wellington, 5 Bosw. (N. Y.) 178. Where negotiable paper is pledged as collateral security for a loan, and the lender is authorized to sell the collaterals in case the loan is not paid at maturity, such authority does not limit the rights of the lender to a sale of the collateral, so as to prevent him from suing thereon. Holland Trust Co. v. Waddell, 75 Hun, 104, 36 N. Y. Supp. 980. Though a pledgee cannot, without express authority, sell commercial paper pledged as collateral securi- ty, a court may, under proper circumstances, order a judicial sale of it Cleg- horn v. Minnesota Title Insurance & Trust Co., 57 Minn. 341, 59 N. W. 320, 47 Am. St. Rep. 615. The foreclosure and sale of a negotiable instrument held as a pledge is authorized, when the maker resides in a remote country or a different state, and it does not appear that he has any property within the jurisdiction subject to seizure and sale. Donohoe v. Gamble, 38 Cal. 341, § 88) SALE OF THE PLEDGED GOODS 231 corporations) are more formal instruments and run for much longer periods than ordinary commercial paper, can be sold before their maturity, at a common-law sale, without authority to that effect in the pledge contract. 95 Though this common-law sale is not dependent on express au- thority in the pledge contract, 98 and requires no judicial proceed- ings, 97 yet the sale must be a public one, 98 because in that way a better price is, ordinarily secured and less opportunity for fraud or unfair dealing is afforded to the pledgee. Since the sale of stocks, bonds, etc., on the Stock Exchange or Boards of Trade and similar institutions is ordinarily more advantageous than a sale at public auction, the sounder view seems to be that such a sale is proper, 89 though there are cases holding the contrary. 1 Due notice both of the time and place of the sale must be sea- sonably given to the pledgor. 2 The purpose of this requirement is 99 Am. Dec. 399. Where a bond and mortgage having several years to run are assigned as collateral security for a loan due in three months, but the assignment does not provide for a sale of the security, the lender, on maturity of the loan, may sue in equity to procure a sale. Porter v. Frazer, 6 Misc. Kep. 553, 27 N. Y. Supp. 517. Where a mortgage and note were assigned as collateral security, with authority in the assignee, on default, to sell the mortgage, the pledgee was authorized to sell the note or debt. Watson v. Smith, 60 Minn. 206, 62 N. W. 265. »» Jones, Collateral Securities (3d Ed.) § 657a ; Duffield v. Miller, 92 Pa. 286; Morris Canal & Banking Co. v. Lewis, 12 N. J. Eq. 323; Newport & C. Bridge Co. v. Douglass, 12 Bush. (Ky.) 673; ALEXANDRIA, L. & H. R. CO. v. BURKE, 22 Grat. (Va.) 254. Dobie Cas. Bailments and Carriers, 135; Brown v. Tyler, 8 Gray (Mass.) 135, 69 Am. Dec. 239. so Jerome v. McCarter, 94 U. S. 734, 24 L. Ed. 136; Lockwood v. Ewer, 9 Mod. (Eng.) 275. 97 Lockwood v. Ewer, 2 Atk. (Eng.) 303, 9 Mod. 275 ; Pothonier v. Dawson, Holt (Eng.) 385; Guinzburg v. H. W. Downs Co., 165 Mass. 467, 43 N. E. 195, 52 Am. St. Rep. 525; McDowell v. Chicago Steel Works, 124 111. 491, 16 N. E. 854, 7 Am. St. Rep. 381. 98 Bryson v. Rayner, 25 Md. 424, 90 Am. Dec. 69; Jeanes' Appeal, 116 Pa. 573, 11 Atl. 862, 2 Am. St. Rep. 624; King v. Texas Banking & Ins. Co., 58 Tex. 669; Pogue v. Hillman, 85 Ohio St. 463, 98 N. E. 1131; Williams v. Hahn, 113 Cal. 475, 45 Pac. 815 ; Rankin v. McCullough, 12 Barb. (N. Y.) 103. 99 MARYLAND FIRE INS. CO. v. DALRYMPLE, 25 Md. 242, 89 Am. Dec. 779, Dobie Cas. Bailments and Carriers, 130 ; Brown v. Ward, 3 Duer (N. Y.) 660. See, also, as to sales at board of trade rooms, Fitzpatrick v. Bank of Forrest City, 95 Ark. 542, 129 S. W. 795 ; Earle v. Grant, 14 R. I. 228 ; Stern v. Simons, 77 Conn. 150, 58 Atl. 696. i Hagan v. Continental Nat. Bank, 182 Mo. 319, 81 S. W. 171 ; Brass v. Worth, 40 Barb. (N. Y.) 648; Dykers v. Allen, 7 Hill (N. Y.) 497, 42 Am. Dec. 87. = National Bank of Illinois v. Baker, 128 111. 533, 21 N. E. 510, 4 L. R. A. 586; Sell v. Ward, 81 111. App. 675; Stearns v. Marsh, 4 Denio (N. Y.) 227, 47 Am. Dec. 248; Luckett v. Townsend, 3 Tex. 119, 49 Am. Dec. 723; Wilson 232 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 in order that the pledgor may exert himself in procuring the attend- ance of prospective buyers and thus enhance the price obtained, and that the pledgor may have an opportunity to attend the sale and see that it is fairly conducted. Further, the pledgor has the right to redeem the pledged goods by paying the debt secured at any time before the sale is actually made. 8 Accordingly, when the pledgor is otherwise fully informed on the subject, no matter from what, source, a further and more formal notice by the pledgee is unneces- sary. 4 The only question is, Did the pledgor have actual notice of the time and place of sale? The safest course, of course, is to have formal written notice served on the pledgor, for then the fact of no- tice can easily be proved ; otherwise, the pledgee may find difficulty in proving that the pledgor was actually informed of the time and place of the sale a reasonable time before such sale was to take place. 6 In making the sale the pledgee acts in a quasi fiduciary capacity and must in all respects exercise the utmost fairness and good faith. 8 The courts will closely scrutinize such sales, particularly v. Little, 2 N. Y. 443, 51 Am. Dee. 307 ; B. F. Hallack Lumber & Manuf g Co. v. Gray, 19 Colo. 149, 34 Pac. 1000; Smith v. Savin, 141 N. Y. 315, 36 N. B. 338; Wheeler v. Newbould, 16 N. Y. 392 ; Garlick v. James, 12 Johns. (N. Y.) 146, 7 Am. Dec. 294; Indiana & I. C. Ry. Co. v. McKernan, 24 Ind. 62; Small v. Housman, 208 N. Y. 115, 101 N. E. 700; Colton v. Oakland Bank of Savings, 137 Cal. 376, 70 Pac. 225; Green v. Lafayette County Bank, 128 Mo. 559, 30 S. W. 319. When the pledgor's liability on the debt or obligation secured is not fixed until a demand on him, such demand or notice must be given by the pledgee in addition to the notice of sale. Garlick v. James, 12 Johns. (N. Y.) 146, 7 Am. Dec. 294; Moffat v. Williams, 5 Colo. App. 184, 36 Pac. 914; Milliken v. Dehon, 27 N. Y. 364 ; Wilson v. Little, 1 Sandf. (N. Y.) 351. Con- sent that the pledgee may sell without giving notice does not relieve him from the necessity of demanding payment of the debt before he sells. Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307. The sale of stock pledged as collateral, made in default of payment of a demand for a larger sum than that for which the stock was pledged, is a conversion of such stqck, though, immediately prior to such sale, the pledgee offer to accept the amount justly due, plain- tiff not having a reasonable time within which to comply with such offer. Blood v. Erie Dime Savings & Loan Co., 164 Pa. 95, 30 Atl. 362. The notice must be to the pledgor or his agent, or to some one authorized to receive notice. Notice given to an agent having no authority over the pledge is not sufficient. Washburn v. Pond, 2 Allen (Mass.) 474. Of course, the pledgor may waive any notice. Williams v. United States Trust Co. of New York, 133 N. Y. 660, 31 N. B. 29; Carson v. Iowa City Gaslight Co., SO Iowa, 638, 45 N. W. 1068; Dullnig v. Weekes, 16 Tex. Civ. App. 1, 40 S. W. 178. « Milliken v. Dehon, 27 N. Y. 364, 369; ante, § 75. * ALEXANDRIA, L. & H. R. CO. v. BURKE, 22 Grat. (Va.) 254, Dobie Cas. Bailments and Carriers, 135; Earle v. Grant, 14 R. I. 228. o ALEXANDRIA, L. & H. R. CO. v. BURKE, 22 Grat (Va.) 254, Dobie Cas. Bailments and' Carriers, 135. « FOOTE v. UTAH COMMERCIAL & SAVINGS BANK, 17 Utah, 783, 54 § 88) SALE OF THE PLEDGED GOODS 233 to ascertain whether the time and place were proper, and generally to see that the pledgor's rights are properly protected. 7 Thus, when the pledged goods are susceptible of division, and when, by a sale of part of the goods, a sufficient amount can be realized, it then becomes the duty of the pledgee to make such division and to sell only such portion of the goods. 8 The pledgee cannot become the purchaser at the sale. 8 If he does, the sale is voidable as to the pledgor, and the pledgor has the right to treat it as a valid sale, 10 or to treat it as void. 11 If the pledgor elects to treat the sale as void, then the title to the pledge remains precisely as if no sale had been made, with the lien of the pledgee! still on it for the amount of his debt. 12 The interest of the pledgee in the goods pledged is only coexten- sive with the debt secured. Therefore, on a sale in any of the meth- ods indicated in this section, any surplus remaining in the hands of the pledgee, after the satisfaction of his claims- (i. e., the debt and necessary expenses of keeping and selling the pledged goods) be- Pac. 104, Dobie Cas. Bailments and Carriers, 138; Perkins v. Applegate, 85 S. W. 723, 27 Ky. Law Rep. 522 ; Sc haaf y^ Fries. 77 Mo. App. 346. » Kinnaird v. Dudderrar, 54 S. W~847,"21 Ky. Law Rep. 1230 ; Sparhawk y. Drexel, Fed. Cas. No. 13,204; Barber v. Hathaway, 47 App. Div. 165, 62 N. T. Supp. 329. « Fitzgerald v Blocher, 32 Ark. 742, 29 Am. Rep. 3. » Sharpe v. National Bank of Birmingham, 87 Ala. 644, 7 South. 106 ; Lord v. Hartford, 175 Mass. 320, 50 N. E. 609; Winchester v. Joslyn, 31 Colo. 220, 72 Pac. 1079, 102 Am. St. Rep. 30; Stokes v. Frazier, 72 111. 428; Killian v. Hoffman, 6 111. App. 200; MARYLAND FIRE INS. CO. v. DALRTMPLE, 25 Md. 242, 89 Am. Dec. 779, Dobie Cas. Bailments and Carriers, 130. But the pledgee may be given power to purchase by express contract. Chouteau v. Allen, 70 Mo. 290; Hamilton v. Schaack, 16. Wkly. Dig. (N. T.) 423. The holder of collateral security cannot appropriate it in satisfaction of the debt at his own option. Diller v. Brubaker, 52 Pa. 498, 91 Am. Dec. 177. Where a pledgee is an agent or trustee, and is authorized by the pledgor to purchase the pledge in his own right in case of sale, a purchase by the pledgee in his own right is valid, as between him and the pledgor. Manning v. Shriver, 79 Md. 41, 28 Atl. 899. io Faulkner v. Hill, 104 Mass. 188; Killian v. Hoffman, 6 111. App. 200; Holston Nat. Bank v. Wood, 125 Tenn. 6, 140 S. W. 31. ii Duncomb v. New York, H. & N. R. Co., 84 N. Y. 190; Glidden v. Mechan- ics' Nat. Bank, 53 Ohio St 588, 42 N. E. 995, 43 L. R. A. 737 ; Leahy v. Lob- dell, Farwell & Co., 80 Fed. 665, 26 C. C. A. 75 ; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202. • 12 Bank of Old Dominion v. Dubuque & P. R. Co., 8 Iowa, 277, 74 Am. Dec. 302; Bryson v. Rayner, 25 Md. 424, 90 Am. Dec. 69; MARYLAND FIRE INS. CO. v. DALRYMPLE, 25 Md. 242, 89 Am. Dec. 779, Dobie Cas. Bail ments and Carriers, 130; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202; Stokes v. Frazier, 72 111. 428. But the pledgor may ratify such, a purchase. Hill v. 234 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 7 longs to the pledgor." This surplus in no sense belongs to the pledgee, but is held by him strictly in trust for the pledgor. 14 The pledgee's interest is at best a special one for a special purpose ; that purpose fulfilled, any residuum naturally reverts to the pledgor. Should the sale of the pledged goods fail to realize an amount as large as the amount of the debt, the pledgee may bring a personal suit against the pledgor for the deficiency. 16 Sale in Equity The common-law sale just considered, requiring no judicial pro- ceedings, is ordinarily adequate for the pledgee, and is simple and inexpensive. Resort should be had to it, then, in all clear cases. But when there are intervening or conflicting rights, 16 when the rights and powers of the pledgee are in any way questioned or de- nied, 17 when notice cannot be given to the pledgor 1S (upon which depends the validity of the common-law sale), then the safest course for the pledgee to pursue is to proceed by a bill in equity to obtain a decree from a court of chancery ordering the sale of the pledged goods. Such a decree would show due regard, in case of conflicting claims, for the rights of all concerned. Pinigan, 62 Cal. 426; Carroll v. Mullanphy Sav. Bank, 8 Mo. App. 249, Pledgor has a right of election to treat the purchase of the pledged property by the pledgee at his own sale as invalid, but loses such right by failing to exercise it within a reasonable time after being informed of the purchase. Hill v. Finigan, 77 Cal. 267, 19 Pac. 494, 11 Am. St. Rep. 279. Pledgor's elec- tion to treat the purchase of the pledged property by the pledgee at his own sale as valid cannot afterwards be retracted ; nor can an election to disaffirm the sale be retracted or renewed at a later date, for the purpose of increas- ing the damages. Hill v. Finigan, 77 Cal. 267, 19 Pac. 494, 11 Am. St Kep. 279. isHirsch v. Mayer, 165 N. Y. 236, 59 N. E. 89; Union Nat. Bank v. Post, 192 111. 385,' 61 N. E. 507; Whittaker v. Amwell Nat. Bank, 52 N. J. Eq. 400. 29 Atl: 203. ii Fletcher v. Harmon, 78 Me. 465, 7 Atl. 271; Ponce v. McElvy, 47 Cal. 154; Du Casse v. Keyser, 28 La. Ann. 419; Graydon v. Church, 7 Mich. 36. is Mauge v. Heringhi, 26 Cal. 577; Jones, Collateral Securities (3d Ed.) § 597. i6 Halle v. National Park Bank of New York, 140 111. 413, 29 N. E. 727; Homer v. Savings Bank of New Haven, 7 Conn. 478; Merchants' & Farmers' State Bank v. Sheridan, 156 111. App. 25. it STOKES v. DIMMICK, 157 Ala. 237. 48 South. 66, Dobie Cas. Bailments and Carriers, 139 ; Boynton v. Payrow, 67 Me. 587; Briggs 'v. Oliver, 68 N. Y. 336, 339; Vaupell v. Woodward, 2 Sandf. Ch. (N. Y.) 143; Stokes v. Frazier, 72 111. 428; Sitgreaves v. Farmers' & Mechanics' Bank, 49 Pa. 359; Robinson v. Hurley, 11 Iowa, 410, 79 Am. Dec. 497; Arendale v. Morgan, 5 Sneed (Tenn.) 703. is Indiana & I. C. Hy. Co. v. McKeruan, 24 Ind. 62; Stearns v. Marsh, 4 Denio (N. Y.) 227, 47 Am. Dec. 248. § 88) SALE OF THE PLEDGED GOODS 235 Where an accounting, 10 or other distinctive equitable remedy, or ground of equitable jurisdiction, 20 is present, a court of chancery- will also assume jurisdiction. But when none of the considerations herein discussed apply, resort cannot be had to equity, since there is an adequate remedy at law. 21 The court decrees a sale, not an absolute foreclosure vesting absolute title in the pledgee. 22 Sale under Power Given by the Pledge Contract The parties may, at the time of creating the pledge relation, pro- vide that, on default by the pledgor, the pledgee shall have power to sell the pledged goods on such terms as they see fit. 23 Unless unduly oppressive or otherwise illegal, such contracts are control- ling and will be duly enforced. Thus the time and manner of mak- ing the sale 24 may be thus fixed, the pledgor may dispose with the otherwise necessary notice, 26 or a private instead of a public sale may be permitted. 28 Again, it may be stipulated that the pledgee shall have the right to purchase the' goods at such sale. 27 Sale under Statutes In a number of states, sales of pledged goods have been made the subject of statutory regulation. 28 Some of these statutes provide a cumulative remedy by affording an additional method of selling the pledged goods, the pledgee retaining besides the statutory method "Durant v. Einstein, 5 Rob. (N. Y.) 423; Appeal of Conyngham, 57 Pa. 474 ; Conde v. Eodgers, 74 App. Div. 147, 77 N. Y. Supp. 518. so Evans v. Goodwin, 132 Pa. 136, 19 Atl. 49; Thornton v. Thornton, 31 Grat. (Va.) 212 ; San Pedro Lumber Co. v. Reynolds, 111 Cal. 588, 44 Pac. 309. si Dupuy v. Gibson, 36 111. 197; Thames Ironworks & Shipbuilding Co. v. Patent Derrick Co., 1 Johns. & Hen. (Eng.) 93, 99. 22 Carter v. Wake, 4 Ch. D. (Eng.) 605; but the court may in its decree permit the pledgee to bid at the sale. 23 Lowe v. Ozmun, 3 Cal. App. 387, 86 Pac. 729; Nelson v. Wellington, 5 Bosw. (N. Y.) 178; Goldsmidt v. Trustees of First Methodist Episcopal Church in Worthington, 25 Minn. 202; Chapman y. Gale, 32 N. H. 141; In re Mertens, 144 Fed. 818, 75 C. C. A. 548. 24 Mowry v. Wood, 12 Wis. 413; Lowe v. Ozmun, 3 Cal. App. 387, 86 Pac. 729. 25 Williams v. United States Trust Co. of New York, 133 N. Y. 660, 31 N. E. 29; Union Nat. Bank of New Orleans v. Forsyth, 50 La. Ann. 770, 53 South. 917; McDowell v. Chicago Steel Works, 124 111. 491, 16 N. E. 854, 7 Am. St. Rep. 381. 26 Carson v. Iowa City Gaslight Co., SO Iowa, 638, 45 N. W. 1068; Jeanes' Appeal, 116 Pa. 573, 11 Atl. 862, 2 Am. St. Rep. 624. 2' Barry v. American White Lead & Color Works, 107 La. 236, 31 South. 733; Appleton v. Turnbull, 84 Me. 72, 24 Atl. 592; Hiscock v. Varick Bank of New York, 206 U. S. 28, 27 Sup. Ct. 681, 51 L. Ed. 945. 28 See Jones, Collateral Securities (3d Ed.) §§ 616-630, for an analysis of these statutes in many of the states, with citations of cases construing them. 236 BAILMENTS FOR MUTUAL BENEFIT PLEDGES (Ch. 7 those methods existing in the absence of statute. 28 Other statutes, however, are exclusive in their operation, taking away completely the power to sell at common law or under the power given by the pledge contract, leaving the statutory method as the only way in which the sale can be made. General observations on these stat- utes would avail little here. The specific statute should in each case be carefully consulted and then scrupulously followed. TERMINATION OF THE PLEDGE 89. The pledge may be terminated by: 1. Act of parties. (a) By performance of the obligation secured, or tender thereof, by the pledgor. (b) By valid sale of the pledged chattel by pledgee on pledg- or's default. (c) By consent of the pledgee. (d) By redelivery of the pledged article to the pledgor. (e) By conversion or like wrong of the pledgee, at the pledgor's option. 2. Operation of law. (a) Destruction of the pledged chattel. Neither death nor other change in the legal status of the parties terminates the pledge. Of all bailments, the pledge, perhaps, presents the least diffi- culty as to its termination. The special property of the pledgee is undisputed, 30 while his power of sale, binding on the pledgor when exercised, rises to the dignity of a power coupled with an interest, 31 and is therefore governed by the rules of agency applicable thereto. Acts of the Parties — Performance or Tender The usual way of putting an end to the pledge by the pledgor is the payment of the debt or performance of the engagement secured. The debt includes (as we have seen) expenses necessarily incurred by the pledgee in keeping the pledged chattel. 3 " On such payment or performance, the whole reason for the creation and continued 2» This Is the situation, unless the statutory intention is clear in excluding all remedies save that granted by the statute. Taft v. Church, 162 Mass. 527, 39 N. B. 283. See, also, Jones v. Dimmick (Ala.) 59 South. 623. «o Ante, i 79. si Henry v. Eddy, 3d 111. 508; Chapman v. Gale, 32 N. H. 141; De Woll V. Pratt, 42 111. 198; Renshaw v. Creditors, 40 La. Ann. 37, 3 South. 403. 82 Ante, i 82. § 89) TEBMINATION Or THE PLEDGE 237 existence of the pledge ceases. The pledge, therefore, immediately terminates. 88 Payment need not be in money, 3 * and anything that is the legal equivalent of payment operates to terminate the pledge. SB A proper tender of performance or payment also serves to termi- nate the pledge as effectively as an actual performance or pay- ment. 88 As the pledgee holds the pledged goods solely in order to enforce payment or performance, after a tender, which offers to him the fullest fruits of the transaction to which he can be en- titled, the pledgee's holding is no longer a rightful one. 87 Any other rule might indefinitely obstruct the pledgor's right of re- demption. To constitute a good tender, it is not necessary that the money be paid, nor even, when the pledgor's offer is refused by the pledgee, that the pledgor actually produce the money. 88 The as Tate v. Security Trust Co., 63 N. J. Eq. 559, 52 Att. 313; Gage v. McDer- mid, 150 111. 598, 37 N. B. 1026; Merrifield v. Baker, 9 Allen (Mass.) 29; Wil- son v. Shocklee, 92 Ark. 370, 123 S. W. 403; Herrmann v. Central Car Trust Co., 101 Fed. 41, 41 C. C. A. 176. But part payment does not discharge the lien on the pledged goods. Herman Goepper & Co. v. Phoenix Brewing Co., 115 Ky. 708, 74 S. W. 726; Williams v. National Bank of Baltimore, 72 Md. 441, 20 Atl. 191. a* Strong v. Wooster, 6 Vt. 536; Bacon v. Lamb, 4 Colo. 578. as Leighton v. Bowen, 75 Me. 504; Lathrop v. Adkisson, 87 Ga. 339, 13 S. B. 517; Hermann v. Central Car Trust Co., 101 Fed. 41, 41 C. C. A. 176. A pledgee may, by his misconduct with respect to the thing pledged, become liable to the pledgor for depreciation or loss in value in consequence of his negligence, but when the value of the thing pledged is lost through the neg- ligence of the pledgee, it does not operate, ipso facto, as a satisfaction or extinction of the debt to the extent of the loss. Cooper v. Simpson, 41 Minn. 46, 42 N. W. 601, 4 L. R. A. 194, 16 Am. St. Rep. 667. Money collected by a creditor on a note received as collateral security, which the creditor has pow- er to convert into money, operates, pro tanto, as payment of the secured debt. Hunt v. Nevers, 15 Pick. (Mass.) 500, 26 Am. Dec. 616. as Ryall v. Rowles, 1 Atk. (Eng.) 165; Latta v. Tutton, 122 Cal. 279, 54 Pac. 844, 68 Am. St. Rep. 30; Moyer v. Leavitt, 82 Neb. 310, 117 N. W. 698, 130 Am. St. Rep. 682; Hathaway v. Fall River Nat. Bank, 131 Mass. 14. a' Haskins v. Kelly, 1 Rob. (N. T.) 160; McCalla v. Clark, 55Ga.53; Mitchell v. Roberts (C. C.) 17 Fed. 776; Humphrey v. County Nat. Bank of Clearfield, 113 Pa. 417, 6 Atl. 155; Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435; Norton v. Baxter, 41 Minn. 146, 42 N. W. 865, 4 L. R. A. 305, 16 Am. St. Rep. 679; Hicks v. National Life Ins. Co., 9 C. C. A. 215, 60 Fed. 690; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202. Pledgee is answerable for depreciation in value of pledged property, after he has refused to accept a valid tender of the debt, and a demand for the pos- session of the property ; and this is equally true whether an action is brought against him as for a conversion, or a bill iB filed against him to redeem from the pledge. Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435. 8s Hazard v. Loring, 10 Cusb. (Mass.) 267. 238 BAILMENTS FOE MUTUAL BENEFIT PLEDGES (Ch. 1 pledgee's wrongful refusal to surrender the pledged goods on demand, after tender of performance, makes him liable for conver- sion. 38 It has already been pointed out that a tender of payment, though it extinguishes the lien of the pledge, is not a discharge of the debt. 40 Same — Sale by the Pledgee A valid sale of the pledged goods, in any of the ways pointed out, terminates the pledge." This necessarily follows, since such sale confers title on the purchaser, 42 and the rights of pledgor and pledgee attach to the purchase price of the goods. 48 But, as has been pointed out, 44 if the pledgee himself (in the absence of a stip- ulation to that effect in the pledge contract) attempts to become the purchaser at the sale of the goods, the pledgor may treat the sale as of no effect and the pledge as still continuing. Same — Consent of the Pledgee The pledgee's special property in the goods, of course, prevents the pledgor from terminating the pledge at his option alone. 48 But since the pledge is created for the benefit of the pledgee alone (the debt or engagement secured forming the benefit or advantage to the pledgor), the pledge may at any time be terminated by the con- sent of the pledgee. This may be done by an express release of his rights by the pledgee, 46 or by a waiver, 47 either express or im- plied from any conduct inconsistent with the continuance of the lien of the pledge. A release of the debt secured terminates a so Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St Rep. 435; Ball v. Stanley, 5 YergT(Tenn.) 199, 26 Am. Dec. 263; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202. "Ante, p. 228: Ball v. Stanley, 5 Yerg. (Tenn.) 199, 26 Am. Dec. 263; Mitchell v. Roberts (C. C.) 17 Fed. 776. 4i Kemp v. Westbrook, 1 Ves. (Eng.) 278; Sharpe v. National Bank of Birmingham, 87 Ala. 644, 7 South. 106; Boynton v. Payrow, 67 Me. 587. 42 Carson v. Iowa City Gaslight Co., 80 Iowa, 638, 45 N. W. 1068; Wheel- wright v. St. Louis, N. O. & O. Canal & Transp. Co. (C. C.) 56 Fed. 164; Potter v. Thompson, 10 R. I. 1. is Louisville Banking Co. v. W. H. Thomas & Sons Co., 68 S. W. 2, 24 Ky. Law Rep. 115; McDougall v. Hazelton Tripod-Boiler Co., 88 Fed. 217, 31 C. C. A. 487. ** Ante, p. 233. *5 Ante, § 79; De Wolf v. Pratt, 42 111. 198. 46 Hermann v. Central Car Trust Co., 101 Fed. 41, 41 C. C. A. 176; Union & Planters' Bank v. Smith, 107 Tenn. 476, 64 S. W. 756 ; In re Dyott's Estate, 2 Watts & S. (Pa.) 463. 4THickok v. Cowperthwait, 137 App. Div. 94, 122 N. Y. Supp. 78; Valley Nat. Bank v. Jackaway, 80 Iowa, 512, 45 N. W. 881; Whitaker y. Sumner 20 Pick. (Mass.) 399. § 89) \ TERMINATION OF THE PLEDGE 239 pledge jusjt as performance or payment would, unless the pledgee expressly /reserves his rights to the pledged goods. 48 Same — Redelivery of Pledged Chattel to Pledgor Just as delivery (in the sense of a transfer of possession) is neces- sary to bring a pledge into being, so the continued life of the pledge is absolutely dependent upon continued possession by the pledgee. Redelivery of the pledged goods to the pledgor will therefore ter- minate the pledge. 49 But when such a redelivery is for a mere tem- porary purpose, as for shoeing a horse which has been pledged and is owned by the blacksmith, or for repairing a carriage which has been pledged and is owned by the carriage maker, this does not amount to an interruption of the pledgee's possession. The owner is in these cases but a mere special bailee for the creditor, and the pledge is not thereby ended. 60 So, when the debtor is employed in the creditor's service, his temporary use of the pledged article in the creditor's business does not effect a restoration of the posses- sion to the debtor, as the article is then regarded as being still in the creditor's possession. Same — Conversion or Like Wrong of Pledgee As in the case of other bailments, it is usually held that the con- version of the pledged goods or like wrong by the pledgee gives the pledgor the option to terminate the pledge and recover either the pledged goods 51 or damages for the conversion." « Beacon Trust Co. v. Bobbins, 173 Mass. 261, 53 N. E. 868. *9 Harper v. Goodsell, L. E. 5 Q. B. (Eng.) 422; Wllkie v. Day, 141 Mass. 68, 6 N. B. 542 ; McFall v. Buckeye Grangers' Warehouse Ass'n, 122 Cal. 468, 55 Pac. 253, 68 Am. St Eep. 47; Shaw v. Wilshire, 65 Me. 485; Britton v. Harvey, 47 La. Ann. 259, 16 South. 747; First Nat Bank of Superior v. Bradshaw, 91 Neb. 210, 135 N. W. 830, 39 L. R. A. (N. S.) 886. so In Reeves v. Capper, 5 Bing. N. C. (Eng.) 136, a sea captain pledged his chronometer for a debt. He was afterwards employed by the pledgee as mas- ter of one of his ships, and the chronometer was placed in his charge, to be used on the voyage. It was held that the possession of the pledge was not lost. See, also, Matthewson v. Caldwell, 59 Kan. 126, 52 Pac. 104 ; Cooley v. Minnesota Transfer Ry. Co., 53 Minn. 327, 55 N. W. 141, 39 Am. St. Rep. 609; Casey v. Cavaroc, 96 U. S. 467, 24 L. Ed. 779; Hays v. Riddle, 1 Sandf. (N. Y.) 248 ; Way v. Davidson, 12 Gfray (Mass.) 465, 74 Am. Dec. 604 ; Macomber v. Parker, 14 Pick. (Mass.) 497; Thayer v. Dwight, 104 Mass. 254; Walker v. Staples, 5 Allen (Mass.) 34, 35; Button v. Arnett, 51 111. 198; Cooper v. Ray, 47 111. 53; Martin v. Reid, 11 C. B. N. S. (Eng.) 730. But see Bodenhammer v. Newsom, 50 N. C. 107, 69 Am. Dec. 775. bi Johnson v. Succession of Robbins, 20 La. Ann. 569; Merchants' Bank of Canada v. Livingston, 17 Hun (N. Y.) 321, affirmed 79 N. Y. 618. 52 Glidden v. Mechanics' Nat. Bank, 53 Ohio St. 588, 42 N. E. 995, 43 L. R, A. 737; Baltimore MarinfijDS^Io^sv-DalEymple, 25 Md. 269. 240 BAILMENTS FOB MUTUAL BENEFIT PLEDGES (Ch. 7 Operation of Law — Destruction of Pledged Chattel This, by operation of law, necessarily terminates the pledge, as there is then nothing to which the relation can attach, even though it be theoretically considered as still existing. The liability of the pledgee for damages in such case would turn on the question of negligence, already discussed. 68 Same — Death or Change of Legal Status The pledge creates in the pledgee not only a special property in the pledged goods, but a right to sell and reimburse himself to the extent of the debt, which is known in agency as a "power coupled with an interest." 5 * This is not affected by death of the parties. On the pledgor's death, 65 the power can be exercised by the pledgee against his personal representative; on the pledgee's death, 66 the power is exercisable by his personal representative. In like man- ner, neither marriage, insanity, nor bankruptcy of the parties will terminate the pledge. 67 The lien and right of sale continue either for or against the representative of the pledgor or pledgee whose legal status is changed, such as his committee in insanity or his trustee in bankruptcy. Same— Redelivery on Termination of the Pledge As in the case of other bailments, the pledgee must, on the ter- mination of the pledge, redeliver to the pledgor the identical goods pledged, together with the profits and the increase thereof. What has, been said as to redelivery on redemption, 68 is also applicable here, when the pledge is terminated by any of the methods just dis- cussed. ss Ante, § 83. « Ante, p. 214. 5 5Drostes' Estate, 9 Wkly. Notes Cas. (Pa.) 224; BELL t. MILLS, 123 Fed. 24, 59 C. 0. A. 104, Doble Cas. Bailments and Carriers, 142; Warrior Coal & Coke Co. v. National Bank of Augusta, Ga. (Ala.) 53 South. 997. ee Chapman v. Gale, 32 N. H. 141; Henry v. Eddy, 34 111. 508. «' Renshaw v. Creditors, 40 La. Ann. 37, 3 South. 403; Jerome v. McCarter, 94 U. S. 734, 24 L. Ed. 136; Teatman v. New Orleans Sav. Inst, 95 U. S. 761, 24 L. Ed. 589; Dayton Nat. Bank v. Merchants' Nat. Bank, 37 Ohio St. 208; Dowler v. Cushwa, 27 Md. 354. Where a deposit with a correspondent has, long prior to the commission of an act of insolvency by a national bank, been pledged to secure loans made to the insolvent by its correspondent, nei- ther the subsequent insolvency of the bank nor the appointment of a re- ceiver destroys the lien of the correspondent on the deposit Bell v. Hanover Nat. Bank (C. C.) 57 Fed. 821. «» Ante, § 84. Ch. 8) INNKEEPEBg 241 CHAPTER VIII INNKEEPERS 90. Definition and Distinctions. 91. Who are Guests. 92. Duration of the Relation. 93. Rights and Duties of Innkeeper — In General. 94. The Duty to Receive Guests. 95. The Duty to Care for the Comfort and Safety of the Guest 96. Liability for the Goods of the Guest. 97. To What Goods the Innkeeper's Liability Extends. 98. Limitation of the Innkeeper's Liability. 99. The Right of Compensation and Lien — The Compensation of the Inn- keeper. 100. The Innkeeper's Lien — Its Nature and Extent. 101. The Waiver of the Lien. 102. The Enforcement of the Lien. 103. The Liability of the Innkeeper as an Ordinary Bailee. 104. The Termination of the Relation. DEFINITION AND DISTINCTIONS 90. The innkeeper is one who holds himself out to the public to furnish either lodging alone, or lodging and some other form of entertainment, to transients for hire. This definition excludes: (a) Persons furnishing only occasional entertainment. (b) Keepers of mere restaurants and eating houses. (c) Keepers of boarding houses or lodging houses. (d) Sleeping car companies and steamship companies. Historical x The innkeeper is, of course, the keeper of an inn, and the inn, or house for the entertainment of travelers, dates back in all civilized countries to the remotest antiquity. The inn of medieval England is the fountainhead of most of our law on the subject, and these inns sprang up in great numbers, on all the much traveled roads, to furnish shelter and entertainment to the wayfarer, who either i The history of inns, the derivation of the word "hotel," and the various terms applied in different times and countries to public houses of entertain- ment, with references to original sources, are discussed in an interesting manner by Daly, J., in Cromwell v. Stephens, 2 Daly (N. Y.) 15, 17. For a brief, but admirable, historical introduction to the subject of innkeepers, see Beale, Innkeepers, §§ 1-6. Dob.Bailm. — 16 242 INNKEEPERS (Ch. 8 cquld not or did not resort to the monasteries or the hospitality of private individuals. The increase of travel naturally increased the number and im- portance of the inns ; while the establishment of inns, in which the traveler could be protected from the perils of thieves and high- waymen, also reacted upon and stimulated travel. Thus, out of the social and economic relation of the inn to the life of the English, there soon developed a body of legal principles controlling the ever increasingly important relation of the innkeeper to those whom he served or purported to serve. The term "tavern," or alehouse, as it was sometimes called, originally meant a house at which no lodging was furnished, but only food and drink, chiefly the latter. The tavern, therefore, ca- tered primarily to the inhabitants of the neighborhood in which it was situated. The word "hotel," of French origin, has in popular use almost supplanted "inn," and is used and understood all over the world. "Inn" and "innkeeper" still remain the accepted legal terminology generally used by judges and writers. With us, the words "tavern," "inn," and "hotel" are used without any distinction in legal meaning. 2 It is clear that the innkeeper was a bailee only as to goods brought within the inn (infra hospitium), and often not then; but convenience and custom justify here a treatment of the general rights and duties of the innkeeper, even when they are in no way connected with the subject of bailments. Definition , The definitions of an innkeeper, given by courts and text writers; have been many and varied, some of which are given and criticised in the notes. 8 At the outset, however, it should be noted that the 2 See, on the use of these terms, Black, Law Dictionary, "Inn" and "Hotel." See, also, Foster v. State, 84 Ala. 451, 4 South. 833; Bonner v. Welborn, 7 Ga. 296 ; People v. Jones, 54 Barb. (N. Y.) 311 ; City of St Louis v. Sie- grist, 46 Mo. 593 ; Lewis v. Hitchcock (D. C.) 10 Fed. 4 ; Kopper v. Willis, 9 Daly (N. X.) 460, 462; Wardell, Inns, 15; Civ. Code Ga. 1882, § 2114; Crom- well v. Stephens, 2 Daly (N. Y.) 15, 17; Halsbury, Laws of England, § 633, pp. 302-306. s The definition given by Best, J., in the old English case of Thompson v. Lacy, 3 Barn. & Aid. (Eng.) 283, 287, is as follows: "An inn is a house, the owner of which holds out that he will receive all travelers and sojourners who are willing to pay a price adequate to the sort of accommodation pro- vided, and who come in a situation in which they are fit to be received." It is not necessary, of course, that the innkeeper own the inn. He may lease it. The definition of an inn given by Justice Bayley in Jones v. Osborn, 2 Chit. (Eng.) 484, 486, "a house where a traveler is furnished with everything which he has occasion for while on his way," Is comprenensive enough to § 90) DKFINITION AND DISTINCTIONS 243 person operating and controlling the inn is the innkeeper, and not one who manages the inn as his agent, nor one who, owning the inn, leases it to him. 4 The definition of the black letter text, "The innkeeper is one who holds himself out to the public to furnish either lodging alone, or lodging with some other form of entertainment, to transients for hire," is substantially that of Prof. Goddard. 6 It will be seen that this definition involves four elements: (1) A public holding out by the innkeeper (2) as one ready to furnish lodging at least (3) to transients (4) for hire. Of these in their turn. (1) The real test of the innkeeper is his holding out that he_w ill serve the public in general and e ntertain any p rnpp.r per s 9_H_ap.ply- in'g for a proper purpose, whg_.is jadHing to pay for Jh^_jen£ejtain- ment "feceTved. 8 Without this distinctive public profession, a pefSSnis not," strictly speaking, an innkeeper. To make one an innkeeper, and render him liable accordingly, no particular form of holding out is necessary, and it may be in any of the many means of conveying information, and may be either express or im- include every description of an inn; but a house that does not All the full measure of this definition may be an inn. "An innkeeper is called in the law 'communis hospitator,' the which signifies the nature of his office and em- ployment." Luton v. Bigg, Skin. (Eng.) 291. For other cases defining an innkeeper, see Wintermute v. Clark, 5 Sandf. (N. Y.) 242, 247; People v. Jones, 54 Barb. (N. Y.) 311 ; Walling v. Potter, 35 Conn. 183 ; Kisten v. Hilde- brand, 9 B. Mon. (Ky.) 72, 75, 48 Am. Dec. 416 ; Mateer v. Brown, 1 Cal. 221, 227, 52 Am. Dec. 303; Dansey v. Richardson, 3 El. & Bl. (Eng.) 144; Doe v. Laming, 4 Camp. (Eng.) .77; Com. v. Wetherbee, 101 Mass. 214; Rafferty v. New Brunswick Fire Ins. Co., 18 N. J. Law, 480, 38 Am. Dec. 525; Gray v. Com., 9 Dana (Ky.) 300, 35 Am. Dec. 136 ; FAY v. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198, Dobie Cas. Bailments and Carriers, 146; Birmingham Ry., Light & Power Co. v. Drennen, 175 Ala. 338, 57 South. 876 ; Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, 42 L. R. A. (N. S.) 122 ; Hill v. Memphis Hotel Co., 124 Tenn. 376, 136 S. W. 997. * See cases cited in preceding note ; also Dixon v. Birch, L. R. 8 Exch. (Eng.) 135 ; Winter v. State, 30 Ala. 22 ; Nantasket Beach Steamboat Co. v. Shea, 182 Mass. 147, 65 N. E. 57. 6 See Goddard, Bailm. & Carr. § 163, which gives the definition : "The inn- keeper is one who holds himself out to furnish lodging, or lodging and other entertainment, to transients for hire." «Lane v. Cotton, 12 Mod. (Eng.) 472; Luton v. Bigg, Skin. (Eng.) 291; JOHNSON v. CHADBOURN FINANCE CO., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571, Dobie Cas. Bailments and Carriers, 159. So true is this that one, though not technically an innkeeper, may incur the liability of one by thus holding himself out to the public. Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218; Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642. See, also, cases cited in note 3. 244 INNKEEPERS (Ch. 8 plied. 7 What is subsequently said as to the holding out that is distinctive of the common carrier, as opposed to the private car- rier, is, mutatis mutandis, also applicable here. , (2) The distinctive thing furnished by the innkeeper, which sets him apart from other persons serving the public, is lodging. 8 No oth^r_form of entertainment will make one an innkeeper"; but,to, constitute Qne"anJnnkeepef7~he~rausT furnisITTodgihg. 7f he "does,' he need not furnish anything" else, though" the "furnishing of other entertainment in addition to lodging renders one none the less an innkeeper. Thus, those who operate hotels on the so-alled "Euro- pean plan" are innkeepers, though they supply meals a la carte, or even not at all. 9 The nature and extent of the accommodations furnished by an establishment, apart from lodging, have, accord- ingly, nothing to do with its character as an inn. 10 (3) The innkeeper is such only as to transients, as we shall sub- sequently see, 11 and then only (4) when the accommodations are furnished to them for hire. The technical innkeeping relation does i Lyon v. Smith, Morris (Iowa) 185 ; FAY v. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198, Dobie Cas. Bailments and Carriers, 146. In Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218, it was held that one uniformly entertaining travelers for hire, though he often declared that he did not keep an inn, might be considered an innkeeper by a jury. See, also, Pettit v. Thomas, 103 Ark. 593, 148 S. Vi. 501, 42 L. E. A. (N. S.) 122. s Block v. Sherry, 43 Misc. Rep. 342, 87 N. Y. Supp. 160 ; Sheffer v. Will- oughby, 163 111. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483; Re- gina v. Rymer, 2 Q. B. D. (Eng.) 136. » JOHNSON v. CHADBOURN FINANCE CO., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571, Dobie Cas. Bailments and Carriers, 159; Bullock v. Adair, 63 111. App. 30; Krohn v. Sweeney, 2 Daly (N. Y.) 200; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 ; Willard v. Reinhardt, 2 E. D. Smith (N. Y.) 148; Wintermute v. Clark, 5 Sandf. (N. Y.) 243; Bernstein v. Sweeny, 33 N. Y. Super. Ct. 271; Taylor v. Monnot, 4 Duer (N. Y.) 116; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416. One who holds himself out to the world as an innkeeper may be regarded as such, though the only eating department of his establishment is a restaurant in the base- ment, connected with the house by a stairway, and conducted by the inn- keeper and two other persons jointly, who share the profits. Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657. io City of St Louis v. Siegrist, 46 Mo. 593; Curtis T. State, 5 Ohio, 324; Com. v. Wetherbee, 101 Mass. 214; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657. Where a building is divided into suites or flats, each suite rented to families for housekeeping purposes, heat, hot and cold water, and janitor's services being furnished to each suite by the proprietor, but where no board, lodging, or accommodation for transient patrons is provided, the house is not an inn. Davis v. Gay, 141 Mass. 531, 6 N. E. 549. " Post, § 91. § 90) DEFINITION AND DISTINCTIONS 245 not exist, as we shall also see, as to those persons who come to the inn without payment at the personal invitation of the innkeeper. 12 Persons Furnishing only Occasional Entertainment From what has been said it is clear that one who, without a hold- ing out to the public, furnishes only occasional entertainment, is not an innkeeper, even though he receives pay for such entertain- ment. 13 Thus it was well said by Mason, C. J., speaking for the court in Lyon v. Smith : 14 "To render a person liable as a com- mon innkeeper it is not sufficient to show that he occasionally en- tertains travelers. Most of the farmers in a new country do this, without supposing themselves answerable for the horses or other property of their guests which may be stolen or otherwise lost without any fault of their own. Nor is such the rule in older coun- tries, where it would operate with far less injustice, and be less op- posed to good policy, than with us. To be subjected to the same responsibilities attaching to innkeepers, a person must make tavern keeping, to some extent, a regular business — a means of liveli- hood ; he should hold himself out to the world as an innkeeper. It is not necessary that he should have a sign or a license, provided that he has in any other manner authorized the general understand- ing that his was a public house, where strangers had a right to re- quire accommodation. The person who occasionally entertains others for a reasonable compensation is no more subject to the ex- traordinary responsibility of an innkeeper than is he liable as a common carrier who, in certain special cases, carries the property of others from one place to another for hire." There is no reason why one may not be an innkeeper at certain seasons of the year and not at other times. 16 This is the relation in which the proprietors of hotels at our summer resorts stand to those whom they entertain, though they keep their houses open only during a few months of the year. During these months their 12 Post, p. 253. is See, also, Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218 ; State v. Matthews, 19 N. C. 424 ; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 74, 48 Am. Dec. 416. See, too, in general, Parker v. Flint, 12 Mod. (Eng.) 254, and Bon- ner v. Welborn, 7 Ga. 296; Parkhurst v. Foster, 1 Ld. Raym. (Eng.) 479, Carth. 417 ; Bac. Abr. tit. "Inns & Innkeepers," B ; Farnworth v. Packwood, Holt, N. P. (Eng.) 209, 1 Starkie, 249; Mason v. Grafton, Hob. (Eng.) 245b; Dr. & Stud. 137b; Calye's Case, 8 Coke (Eng.) 32a; Overseers of Poor of Town of Crown Point v. Warner, 3 Hill (N. Y.) 150; State v. Chamblyss, Cheves (S. C.) 220, 34 Am. Dec. 593. i* Morris (Iowa) 184, 186. is This emphasizes the personal nature of the innkeeping relation as at- taching to a person by virtue of his holding out, and combats the idea of its being impersonally attached to a particular building. 246 INNKEEPERS (Ch. 8 holding out may well bring them within the definition of an inn- keeper as given above. At other seasons of the year, however, dur- ing which they make no profession of taking all suitable persons who may apply, they may yet furnish entertainment to some per- sons, as to whom they are not innkeepers at all, but merely board- ing house keepers, • Keepers of Restaurants and Eating Houses The furnishing of food alone, without lodging, does not make one an innkeeper,'.- A mere restaurant (however elaborate or howr ever extended may be its patronage) or eating house for meals cannot be considered an inn. 16 The idea of a "temporary home for the guest" " and a .place for storing his baggage, so characteristic of the inn, is completely lacking in such establishments. The innkeeper may, of course, in the same building conduct a restaurant, to which he may invite, not only his guests, but the public in general. In such case, "if the restaurant is entirely dis- tinct from the rooms proper to the inn," 18 his liability to a mere patron of the restaurant is that of restaurant keeper only. 18 Though not an innkeeper, when the goods of the customer (such as his coat or hat) are delivered to the restaurant keeper or his servants, this is a mutual benefit bailment, and the keeper must use ordinary care to protect them. 20 Keepers of Lodging Houses and Boarding Houses Keepers of lodging houses and boarding houses are not inn- keepers, nor subject to their liabilities. 21 These satisfy the defini- 16 Sheffer v. Willoughby, 163 111. 518, 45 N. E. 253, 34 I* R. A. 464, 54 Am. St. Rep. 483 ; People v. Jones, 54 Barb. (N. T.) 311 ; La Salle Restaurant & Oyster House v. McMasters, 85 111. App. 677 ; Lewis v. Hitchcock (D. C.) 10 Fed. 4. See, also, on innkeepers and restaurant keepers, Carpenter v. Taylor, 1 Hilt. (N. T.) 193 ; Queen v. Rymer, 2 Q. B. Div. (Eng.) 136 ; The Civil Rights Bill, 1 Hughes (TJ. S.) 541, 543, Fed. Cas. No. 2,774; Bonner v. Welborn, 7 Ga. 296 ; Willard v. Reinhardt, 2 E. D. Smith (N. Y.) 148 ; Walling v. Pot- ter, 35 Conn. 183 ; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 73, 48 Am. Dec. 416 ; Doe v. Laming, 4 Camp. (Eng.) 77 ; Kelly v. Excise Com'rs of New York, 54 How. Prac. (N. Y.) 332. i? Van Zile, Bailm. & Carr. § 333. is Beale, Innkeepers, § 21. io Krohn v. Sweeney, 2 Daly (N. T.) 200. As to the liabilities of the res- taurant keeper, see Sheffer v. Willoughby, 163 111. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483 ; Partaze v. West, 7 Ala. App. 599, 61 South. 42. 20 See ante, p. 55. 21 FAY v. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198, Dobie Cas. Bailments and Carriers, 146; Beall .v. Beck, 2 Fed. Cas. No. 1,161, 3 Cranch, C. C. 666 ; Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St Rep. 825; Parker v. Fleat, 12 Mod. (Eng.) 254; Birmingham Ry., Light & Power § 90) DEFINITION AND DISTINCTIONS 247 tion as to the accommodations offered, but not as to the essential profession to serve the public. The proprietor of such a house does not hold himself out to the public as prepared to provide accommodations for all who may apply. On the other hand, he reserves the right to select arbitrarily whom he will, and whom he will not, entertain. Accordingly he is not bound to receive any person unless he chooses to do so, 22 which is not true, as we shall see, of the innkeeper. The boarding house keeper is, there- fore, not held to the high responsibility of the, innkeeper, but is ordinarily liable only for failure to exercise ordinary care as to the goods of the boarder, being thus placed in the same position as other bailees in mutual benefit bailments. 28 It is frequently said 2 * that in a boarding house the boarder is under an express contract at a certain rate for a certain time, while at an inn there is no such express engagement, but that the guest, being on his way, is entertained from day to day, ac- cording to his business, on an implied contract. This, however, is not an accurate test of the nature of the relation. One who purports to keep merely a boarding house may occasionally en- tertain transient persons both for an indefinite time and with no express contract, without either acquiring the character, or being under the responsibilities, of an innkeeper. And, as we shall see, the innkeeper continues as such to the transient guest, though the latter makes a specific contract as to the length of his stay, accommodations to be received, and the price he is to pay. 20 Sleeping Car Companies and Steamship Companies Sleeping car companies are held not to occupy the relation of innkeepers to those who occupy berths on their cars. 20 Various Co. v. Drennen, 175 Ala. 338, 57 South. 876; Burdock v. Chicago Hotel Co., 172 111. App. 185. 22 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 ; Willard v. Rein- hardt, 2 B. D. Smith (N. Y.) 148; Commonwealth v. Cuncannon, 3 Brewst. (Pa.) 344. See cases cited in preceding note. 23 They are liable for the goods of their lodgers or boarders only as ordi- nary bailees for hire. Smith v. Read, 52 How. Prac. (N. Y.) 14; Vance v. Throckmorton, 5 Bush (Ky.) 41, 96 Am. Dec. 327; Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688; Johnson y. Reynolds, 3 Kan. 257; Wiser v. Chesley, 53 Mo. 547 ; Dansey v. Richardson, 3 El. & Bl. (Eng.) 144 ; Holder v. Soulby, 8 C. B. N. S. (Eng.) 254. 2* See, for example, Willard v. Bernhardt, 2 E. D. Smith (N. Y.) 148; Bos- tick v. State, 47 Ark. 126, 14 S. W. 476. 26 See post, p. 256 ; Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, 42 L. R. A. (N. S.) 122. 28 See Beale, Innkeepers, § 341; Pullman Palace Car Co. v. Adams, 120 Ala. 581, 24 South. 921, 45 L. R. A. 767, 74 Am. St. Rep. 53; Pullman's Palace Car Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 44 L. R. A. 790, 71 Am. St. Rep. 248 INNKEEPERS (Ch. 8 grounds are given for this holding. Thus, the sleeping car com- pany does not, like an innkeeper, undertake to serve the traveling public indiscriminately, but only a certain limited class — those who have already . paid their fare, and are provided with a first- class ticket, entitling them to ride to a particular place. 27 The inn- keeper, as we shall see, is obliged to receive and care for the goods of the traveler which he may choose to take with him upon the journey ; while the sleeping car company is not bound to care for the goods of the traveler and notoriously refuses to do so. 28 Again, the innkeeper's liability had its origin in the fact that the traveler was often compelled to resort to the inn for necessary protection. But the traveler is not thus compelled to resort to the sleeping car; he may remain in the ordinary car, and the legal duty of protection is owed to him by the carrier. 29 Again, it is the policy of the law to keep within its technical limits rather than to extend the rigorous and unusual liability of the innkeeper. There are cases, however, that refuse to accept the cumulative force of these reasons, and hold the sleeping car com- pany an innkeeper and liable accordingly. 80 Though not a car- rier itself, either private or common, the close relation between the sleeping car and the train of which it is a part renders it more convenient to discuss the rights and duties of sleeping car com- panies under the subject of carriers. 31 The weight of authority also holds that steamship companies are not innkeepers. 82 Even though a room on the boat be given 293; Whicher v. Boston & A. R. Co., 176 Mass. 275, 57 N. B. 601, 79 Am. St. Rep. 314; Pullman Palace Car Co. v. Smith, 73 111. 360, 24 Am. Rep. 258; LEWIS v. NEW YORK CENT. SLEEPING CAR CO., 143 Mass. 267, 273, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295; Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474, 481, 43 Am. Rep. 102; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574 ; Pullman Palace Car Co. v. Gaylord, 6 Ky. Law Rep. 279 ; Welch v. Pullman Palace Car Co., 16 Abb. Prac. N. S. (N. T.) 352; Pullman Car Co. v. Gardner, 3 Penny. (Pa.) 78; Tracy v. Pullman Palace Car Co., 67 How. Prac. (N. Y.) 154. But see, contra, Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St. Rep. 325. 27 Welch v. Pullman Palace Car Co., 16 Abb. Prac. N. S. IN. Y.) 352, 357. But that they are bound to receive any one who applies for a berth, see NEVIN v. PULLMAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297. as Pullman Palace Car Co. v. Smith, 73 111. 360, 24 Am. Rep. 258. 20 Pullman Palace Car Co. v. Smith, 73 111. 360, 24 Am. Rep. 258. so Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A 809, 26 Am. St. Rep. 325 ; Lise v. Pullman, etc., Co., 1 Quebec Super. Ct. 9. si See post, § 165. 82 Clark v. Burns, 118 Mass; 275, 19 Am. Rep. 456; The Crystal Palace v. Vanderpool, 16 B. Mon. (Ky.) 302; Adams v. New Jersey Steamboat Co., 151 §.91) WHO ARE GUESTS 249 into the control of the passenger, this is merely incidental to the carriage, and the rights and duties of the steamboat owner can best be worked out along the line of his real occupation as a carrier. As they are usually common carriers, however, their liability as such for the goods of the passenger given into their charge is fully as great as, and, according to many courts, even greater than, the corresponding liability of the innkeeper. License as Innkeeper ss An innkeeper cannot set up his failure to procure a license as a defense to his technical innkeeping liability . a * The mere posses- sion of a license does not make one an innkeeper at common law, nor does the lack of it prevent him from being one. It is his hold- ing out and business that fix the status of a party in this respect. A license, as a matter between him and the state or municipality, saves the innkeeper from the penalty of pursuing that calling without a license ; 35 but the want of it does not save him from his exceptional liability to his guests. WHO ARE GUESTS 91. A guest is a transient, who patronizes the inn as such, with the consent of the innkeeper. It is as important to determine who are guests as it is to de- cide who are innkeepers; for, as the exceptional liabilities, which will be subsequently discussed, are imposed only on those who are strictly innkeepers, so these liabilities exist solely in favor of those whose legal relation is" that of guests, and not in favor of N. T. 163, 45 N. B. 369, 34 I>. R. A. 682, 56 Am. St. Rep. 616 ; McKee v. Owen, 15 Mich. 115, decided by a divided court. 33 The right to keep an inn was not a franchise at common law and required no license. Rex v. Collins, Palmer (Eng.) 367, 373 ; Overseers of Poor of Town of Crown Point v. Warner, 3 Hill (N. Y.) 150. Inns are public places of entertainment and have been made the subject of frequent statutory reg- ulation. White v. Holman, 44 Or. 180, 74 Pac. 933, 1 Ann. Cas. 843; Bos- tick v. State, 47 Ark. 126, 14 S. W. 476. Mr. Beale collects the American stat- utes in an appendix to Beale, Innkeepers, pp. 307-534. 34 Norcross v. Norcross, 53 Me. 163 ; State v. Wynne, 8 N. O. 451 ; Dick- erson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642. ss State v. Johnson, 65 Me. 362. It is held that the innkeeper failing to take out the statutory license cannot recover compensation for entertainment he has furnished. Randall v. Tuell, 89 Me. 443, 36 Atl. 910, 38 L. R. A. 143. Nor has he any lien on the guest's goods. Stanwood T. Woodward, 38 Me. 192. 250 INNKEEPERS (Ch. 8 boarders, or other persons resorting to the inn. 86. He alone, then, can hold the innkeeper to his rigorous liability who is technically a guest. That the plaintiff is not a guest is therefore always a defense to the strict liability as an innkeeper for loss or damage to the goods. It is clear that the definition of "guest" involves three elements, which require separate treatment in the order named: First, a transient; second, patronizing the inn as such; third, consent of the innkeeper. 37 Transients As only transients can become guests, the single most important element, in determining who are guests, is that they first must be transients. 88 Other terms are also used by the courts, such se See Mowers v. Fetters, 61 N. T. 34, 19 Am. Rep. 244; Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663 ; Ingalsbee v. Wood, 36 Barb. (N. Y.) 452, 455 ; Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405 ; Miles v. International Hotel Co., 167 111. App. 440 ; Ticehurst v. Beinbrink, 72 Misc. Rep. 365, 129 N. Y. Supp. 838. a? As we proceed with the discussion of the subject, the inadequacy of the following definitions of a guest will become apparent: Every one who is re- ceived into an inn and has entertainment there, for which the innkeeper has compensation by way of remuneration or reward for his services, is a guest Comegys, C. J., in Russell v. Fagan, 7 Houst. (Del.) 389, 8 Atl. 258, 260. A guest is one who comes without any bargain for time, remains without one, and may go when he pleases. 2 Pars. Cont. 151. A guest is one who patron- izes an inn as such. Walling v. Potter, 35 Conn. 183. Any one away from home, receiving accommodations at an inn as a traveler, is a guest, and en- titled to hold the innkeeper responsible as such. Wintermute v. Clark, 5 Sandf. (N. Y.) 242, 247, adopted in Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St. Rep. 325. Guests are those who are bona fide (really) traveling, and make the use of an inn, and not mere neighbors and friends who visit the house occasionally. Tidswell, Inn- keepers' Legal Guide, 1. A guest is "a stranger who comes from a distance and takes his lodgings at a place." Webst. Diet. See, also, a valuable article in 14 Cent. Law J. 206; Hall v. Pike, 100 Mass. 495; Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Han- cock v. Rand, 17 Hun (N. Y.) 279 ; Phillips v. Henson, 30 Moak, Eng. R. 19 ; Thompson v. Ward, L. R. 6 C. P. (Eng.) 327 ; Bradley v. Baylls, 8 Q. B. Div. (Eng.) 195 ; Ness v. Stephenson, 9 Q. B. Div. (Eng.) 245 ; Hickman v. Thomas, 16 Ala. 666 ; Ullman v. State, 1 Tex. App. 220, 28 Am. Rep. 405 ; Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642; LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148. See, too, the following recent cases on the general subject of who are guests: R. L. Polk & Co. v. Melenbacker, 136 Mich. 611, 99 N. W. 867 ; CRAPO v. ROCKWELL, 48 Misc. Rep. 1, 94 N. Y. Supp. 1122, Dobie Cas. Bailments and Carriers, 149; Pettit v. Thomas, 103 Ark. 593, 158 S. W. 501, 42 L. R. A. 0*. S.) 122; Ticehurst v. Beinbrink, 72 Misc. Rep. 365, 129 N. Y. Supp. 838; Vigeant v. Nelson, 140 111. App. 644 ; De Lapp v. Van Oloster, 136 Mo. App. 475, 118 S. W. 120. «» FAY v. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 § 91) WHO ABE GUESTS 251 as "traveler,"* 9 or "wayfarer";* but their meaning is essentially the same. No entirely satisfactory definition of a transient seems to have been formulated, but the term is opposed to the notion of residing in a place, and carries with it nothing that is in any marked degree permanent. It rather conveys the idea of a mere temporary sojourner, the period of whose stay is brief or uncer- tain. 41 One who has his permanent abode in the inn falls without the transient category, so that, • whatever may be his relation to the keeper of the inn, he is not a guest. 42 So, too, a railroad conductor, running on regular trips between fixed termini, who staid at each end of his route at a hotel in' a room which he rented by the month, is not a transient. 48 But officers of the army and navy and soldiers L. R. A. 188, 27 Am. St. Rep. 1£8, Dobie Cas. Bailments and Carriers, 146; Jalle v. Cardinal, 35 Wis. 118; Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242; Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688 ; Neal v. Wilcox, 49 N. C. 146, 67 Am. Dec. 266 ; Horner v. Harvey, 3 N. M. (Johns.) 197, 5 Pac. 329 ; Russell v. Fagan, 7 Houst. (Del.) 389, 8 Atl. 258 ; Clute v. Wiggins, 14 Johns. (N. T.) 175, 7 Am. Dec. 448 ; Beale v. Posey, 72 Ala. 323 ; Burgess v. Clements, 4 Maule & S. (Eng.) 306. See, also, Burdock v. Chicago Hotel Co., 172 111. App. 185. 3» Beale v. Morris, Cro. Jac. (Eng.) 224; Thompson v. Lacy, 3 B. & Aid. (Eng.) 283. *o Calye's Case, 8 Coke (Eng.) 32, "wayfaring men." 41CRAPO v. ROCKWELL, 48 Misc. Rep. 1, 94 N. Y. Supp. 1122, Dobie Cas. Bailments and Carriers, 149 ; Shoecraft v. Bailey, 25 Iowa, 553 ; Moore v. Long Beach Development Co., 87 Cal. 483, 26 Pac. 92, 22 Am. St. Rep. 265. Notwithstanding one who sues for lost baggage may have paid for his lodg- ing by the week, yet, if he has not established a permanent abode and has done nothing to divest himself of his status as a traveler, he is a "guest" within the meaning of the law and may hold the owner of his lodging house to the liability of an innkeeper. Moon v. Tarian, 147 111. App. 383. 42 Meacham v. Galloway, 102 Tenn. 415, 52 S. W. 859, 46 L. R. A. 319, 73 Am. St. Rep. 886 ; Haff v. Adams, 6 Ariz. 395, 59 Pac. Ill ; Johnson v. Reyn- olds, 3 Kan. 257 ; Ewart v. Stark, 8 Rich. (S. C.) 423. The fact that an hotel has a rule to charge a guest a less rate per diem by the week than by the day, and that, if a guest had been there longer than a week, he got the ben- efit of the rule, does not show that one who had been at the hotel more than a week was a "boarder," rather than a "guest," it not being shown that he had any notice of the rule, or any knowledge of the charges, or that any ar- rangement for a permanent stay had been made. Magee v. Pacific Imp. Co., 98 Cal. 678, 33 Pac. 772, 35 Am. St. Rep. 199. Plaintiff registered at a hotel and secured a room, which she occupied a number of months, and then moved to another room in the same hotel. During the time of her stay at the hotel, she was absent for about three weeks at one time, during which time the room was reserved for her and the rent paid by her. During the entire pe- riod of her absence and the time of her stay at the hotel it was her only place of residence. Held, that her status was that of a lodger, and not a guest at an inn. Gray v. Drexel Arms Hotel, 146 111. App. 604. 48 Horner v. Harvey, 3 N. M. (Johns.) 197, 5 Pac. 329. 252 INNKEEPERS (Ql. 8 and sailors, who have no permanent residence which they can call home, but who are "liable to the call of their superiors at any moment," may well be regarded as transients when stopping at public inns or hotels.** A townsman or neighbor may be a traveler, and therefore a guest at an inn, as well, as one who comes from a distance. 45 If he resides permanently at an inn, his relation to the innkeeper is that of a boarder ; * 6 but if he resides away from it, whether far or near, and comes to it for entertainment in the role of a traveler, and receives it as such, he is subjected to all the duties of a guest, and entitled to all the rights and privileges of one.* 7 In short, any one receiving entertainment for hire at an inn as a transient with the innkeeper's consent, is a guest, and is entitled to hold the innkeeper responsible as such. Patronising the Inn as Such The second requisite of the guest is that he must patronize the inn as an inn; that is, he must resort to it for the legitimate pur- poses and entertainment that characterize the inn. 48 Thus one who went to a hotel with a prostitute, whom he fraudulently reg- istered as his wife, for the purpose of sexual intercourse, is not a guest.* 8 Nor is one who, in order to secure a safe place to de- 4* Hancock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112, a leading case. See, also, Metzger v. Schnabel, 23 Misc. Rep. 698, 52 N. Y. Supp. 105 (involving a for- eign army officer temporarily in this country). *» Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242; Walling v. Potter, 35 Conn. 183. *« See Meacham v. Galloway, 102 Tenn. 415, 52 S. W. 859, 46 1>. R. A 319, 73 Am. St. Rep. 886 ; Haff v. Adams, 6 Ariz. 395, 59 Pac. 111. *i The cases are numerous where persons obviously living near by were held guests, thus: A driver of cattle along the road, in Hilton v. Adams, 71 Me. 19. One who came with a horse and wagon to attend the trial of a case brought against him by the innkeeper, in Read v. Amidon, 41 Vt 15, 98 Am. Dec. 560. One who came to market, in Bennet v. Mellor, 5 Term R. (Eng.) 273. So, it does not appear that the party was a traveler in Farnworth v. Packwood, 1 Starkie (Eng.) 249. See, also, McDonald v. Edgerton, 5 Barb. (N. Y.) 560 ; Parker v. Flint, 12 Mod. (Eng.) 254 (case 455) ; Hancock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112; Orchard v. Bush [1898] 2 Q. B. (Eng.) 284. is Toub v. Schmidt, 60 Hun, 409, 15 N. Y. Supp. 616; Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560 ; Dynar v. Mossop, 36 Q. B. U. C. (Can.) 230. See, also, Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. R. A. (N. S.) 1085. 40 Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242. In this case Cole, C J., said that "while the definition of a guest has been somewhat extended beyond its original meaning, it does not include every one who goes to an inn for convenience to accomplish some purpose. If a man and wo- man go together to, or meet by concert at, an inn or hotel in the town or city where they reside, and take a room for no other purpose than to have illicit intercourse, can it be that the law protects them as guests? Is the § 91) WHO ABB GUESTS 253 posit his money, hired a room at the inn, which he had no inten- tion of occupying. 50 A neighbor or friend who. comes to an inn on the social invitation of the innkeeper, to be entertained gratu- itously, is not a guest ; " for, not paying for what he receives, he is entertained by the keeper of the inn purely in his private, and not in his public, capacity. Of course, one who goes to an inn merely to call upon a guest does not by so doing become a guest himself. 52 The transient, resorting to the inn as such (when accepted by the innkeeper), is none the less a guest though the entertainment he receives is limited to a single meal, 58 or even if an unexpected alteration of his^ plans might result in his ultimately receiving no entertainment at all. Though no one is an innkeeper unless he holds himself out to furnish lodging, it is not essential that a per- son must take lodgings in order that he may be a guest. 54 Nor need one be entertained at an inn any definite length of time to make extraordinary rule of liability which was originally adopted from consider- ations of public policy to protect travelers and wayfarers, not merely from the negligence, but the dishonesty, of innkeepers and their servants, to be extended to. such persons? * * * Then, for a like reason, it would protect a thief who takes a room at an inn and improves the opportunity thus given to en- ter the rooms and steal the goods of guests and boarders." sow., the keeper of a gambling house, closed his night's business at 2 o'clock a. m., having a sum of money upon his person, and, not being ready to retire for the night, and not wishing to carry his money upon his person at that time of the night, visited an inn, for the purpose of depositing his money for safe-keeping; found the inn in charge of a night clerk; inquired if he could have lodging for the night ; was told that he could ; stated that he did not desire to go to his room at that time, but wished to leave some money with the clerk, and would return in about half an hour. The clerk told him he would reserve a good room for him. He did not register his name. It was not uppn any book of the inn. No room was assigned him. He left his package of money with the clerk, received a check for it, and departed. He returned in about three hours to have a room assigned him and retire for the balance of the morning. The clerk had absconded with the money. Held, W. was not a guest of the inn at the time he deposited his money with the clerk, and the innkeeper was not liable for its loss. Ar- cade Hotel Co. v. Wiatt, 44 Ohio St. 32, 4 N. B. 398, 58 Am. Rep. 785. A person engaging and paying for a room at a hotel does not thereby become a guest, when he has no intention of occupying the room. Bunn v. John- son, 77 Mo. App. 596. si Anonymous, 1 Rolle, Abr. 3 PI. 4 ; Southcote v. Stanley, 1 H. & N. (Bng.) 247 ; Bac. Abr. "Inns and Innkeepers" ; 5 Comyn, Dig. "Action on Case for Negligence," B, 2. 6 2 Gastenhofer v. Clair, 10 Daly (N. T.) 265, 266. Cf. Kopper v. Willis, 9 Daly (N. T.) 460 ; Bennet v. Mellor, 5 Term R. (Bng.) 273. sa Orchard v. Bush [1898] 2 Q. B. 284; Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560. « Overstreet t. Mloser, 88 Mo. App. 72 ; Kopper v. Willis, 9 Daly (N. I.) 460. 254 INNKEEPERS (Ch. 8 him a guest. 55 Thus, even the purchasing of liquor has been held sufficient, 66 under some circumstances, to make one the guest of the innkeeper ; for it is not the nature or amount of entertainment, but the character under which the person receives it, which deter- mines the relation of the parties. To make one a guest, the entertainment must be given by the innkeeper in his capacity as the keeper of an inn. 67 Thus, if for pay the innkeeper agreed .to furnish a banquet for a socie.ty, mem- bers of the society attending the banquet are not guests of the innkeeper, 68 for he is here not strictly an innkeeper, but a club caterer, and the two employments, as to their nature and attendant responsibility, are separate and distinct. The authorities seem to be divided on the question whether the transient must be personally entertained at the inn, in order to be a guest. The point is generally raised in connection with the inn- keeper's responsibility for loss of, or damage to, a horse sent to the inn by a person who does not himself resort to the inn. It would seem, though there are cases to the contrary, 69 that if a person was not personally entertained at the inn and never intended to be, then he does not become a guest merely by sending his horse to the inn to be cared for. 60 If, however, a person intends to become a guest at the inn, and sends his horse there in advance (the horse being accepted on that understanding by the innkeeper), then the owner of the horse, it seems, would become a guest (in so far, at least, ob Kopper v. Willis, 9 Daly (N. Y.) 460, 465. 6 6 McDonald v. Edgerton, 5 Barb. (N. Y.) 560, 562; Fitch v. Casler, 17 Hun (N. Y.) 126, 127. See, also, Bennet v. Mellor, 5 T. R. (Eng.) 273. For com- ments on this last case, see Strauss v. County Hotel & Wine Co., 12 Q. B. Div. (Eng.) 27 ; McDonald v. Edgerton, 5 Barb. (N. Y.) 560 ; Kopper v. Wil- lis, 9 Daly (N. Y.) 460, 465 ; McDaniels v. Robinson, 26 Vt 316, 332, 62 Am. Dec. 574. " Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762; Fitch v. Casler, 17 Hun (N. Y.) 126 (ball held at the inn in both of these cases, and persons attend- ing ball held not to be guests, even though they bought liquor at the inn). 5s AMEY v. WINCHESTER, 68 N, H. 447, 39 Atl. 487, 39 L. R. A. 760, 73 Am. St. Rep. 614, Dobie Cas. Bailments and Carriers, 153. bo See Russell v. Fogan, 7 Houst. (Del.) 389, 8 Atl. 258; Yorke v. Grenaugn, 2 Ld. Raym. (Eng.) 866; Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471. It is said that the basis of this liability is the compensation re- ceived by the innkeeper for keeping the horse. So that as to inanimate goods, for the keeping of which no compensation is charged, this alone would not create the relation of innkeeper and guest. As to this last, see McDaniels v. Robinson, 28 Vt. 387, 67 Am. Dec. 720. «o Healey v. Gray, 68 Me. 489, 28 Am. Rep. 80 ; Neale v. Crocker, 8 U. G O. P. (Can.) 224; Ingallsbee v. Wood, 33 N. Y. 577, 88 Am. Dec. 409. § 91) WHO AKB GUESTS 255 as the innkeeper's responsibility for the horse is concerned) from the time that the horse is accepted. 61 Consent of the Innkeeper The third element in the definition of a guest is acceptance as such by the innkeeper. The latter has the power to refuse to ac- cept any person as a guest, and upon such refusal such person does not, and cannot, become a guest. 62 The innkeeper is liable, as we shall see, when he refuses, without lawful excuse, to accept a person as a guest ; 6a but his re'fusal, though wrongful, is none the less effective in preventing the establishing of the relation of inn- keeper and guest. The innkeeper thus has the power, but not the right, to determine who his guests shall be. Not even a transient, patronizing the inn as such, can make him- self a guest without the innkeeper's consent. Of course, that con- sent may be given either by the innkeeper himself or by an agent or servant intrusted with the duty of receiving and rejecting travelers. Frequently there is no formal bargain, and there need be none; for the acceptance of a person as a guest will readily be implied from appropriate acts, as where he calls for refreshment which is furnished to him by a servant who has the discretion either to give or to withhold it. 64 Again, when the porter of an inn is sent to the station for that purpose, the porter, merely by assuming control of a traveler's, baggage, may accept him 'as a guest. 66 ei See Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. See, also, Coy- kendall v. Eaton, 55 Barb. (N. T.) 188. For an interesting case in this con- nection, see Brewer v. Caswell. 132 Ga. 563, 64 S. E. 674, 23 L. R. A. (N. S.) 1107, 131 Am. St. Rep. 216, 16 Ann. Cas. 936. See Flint v. Illinois Hotel Co., 149 111. App. 404, where the innkeeper was held liable as such for goods sent in advance by an intending guest, who actually became a guest. 02 Bird v. Bird, 1 And. (Eng.) 29; White's Case, 2 Dyer (Eng.) 158b. Both of these cases arose in the sixteenth century. See, also, Gastenhofer v. Clair, 10 Daly (N. T.) 265, 266 ; Strauss v. County Hotel & Wine Co., 12 Q. B. Div. (Eng.) 27. See, also, cases cited in note 37. ss Post, § 94. «* Gastenhofer v. Clair, 10 Daly (N. Y.) 265. 65 Sasseen v. Clark, 37 Ga. 242 ; Coskery v. Nagle, 83 Ga. 696, 10 S. E. 491, 6 L. R. A. 483, 20 Am. St. Rep. 333 ; Dickinson v. Winchester, 4 Cush. (Mass.) 114, 50 Am. Dec. 760; Richards v. London, etc., Ry. Co., 7 C. B. (Eng.) 839, 62 E. C. L. 839. See, also, Strauss v. County, etc., Co., 12 Q. B. D. (Eng.) 27. Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113, 105 Am. St. Rep. 930, 2 Ann. Cas. 345. In these last two cases the person, after he had delivered his baggage to the porter, decided not to become a guest at the inn and received no entertainment there. In both cases it was held that he had not become a guest. There was a similar holding in Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. R. A. (N. S.) 1085, where one sent his bag- gage to a hotel and then went to the hotel merely to write letters and wait for a train. 256 INNKEEPERS (Ch. 8 No one, however, can become a guest until he has first given the innkeeper an opportunity, either in person or through an au- thorized representative, to receive or to reject him. Only after the innkeeper has elected to receive him is a person entitled to the privileges of a guest. Accordingly, a man cannot make himself a guest merely by slipping into the dining room of a hotel and order- ing a dinner of a waiter who has no discretion whatever, and who brings what is ordered under the belief that the person who gives the order is in the dining room by" permission of the innkeeper. 66 In such case, the act of the waiter is in no sense equivalent to an acceptance by the innkeeper, but is rather a mechanical act per- formed on the false supposition that the person has already been accepted as a guest by the innkeeper. Special Agreement The guest does not lose that character merely by making an arrangement for a definite time, or at definite rates, .provided he still remains a transient. 67 Neither the length of his stay nor any agreement he may make as to the price of board is sufficient in itself to deprive a person of his character as a guest, provided that he still fulfills the definition of a guest. 68 A transient who enters an inn as a guest does not cease to be a guest, provided he remain a transient, by agreeing to remain a given time, or by ascertaining the price that will be charg- ed, or by paying in advance for the entertainment. 6 ' Thus, a guest for a single night might make a special contract as to the price to be paid for his lodging, without in any way affecting his character as a guest. Whether a person is a guest, then, depends upon his fulfilling the three elements of the definition. A special contract, though, might show conclusively, and is always evidence to prove, that one «e Gastenhofer v. Clair, 10 Daly (N. Y.) 265. «' LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148 ; Moon v. Tarian, 147 111. App. 383 ; Magee v. Pacific Imp. Co., 98 Cal. 678, 33 Pac. 772, 35 Am. St. Rep. 199; Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, 42 L, R. A. (N. S.) 122;. Norcross v. Norcross, 53 Me. 169; Han- cock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112; IJma v. Dwinelle, 7 Alb. Law J. (N. Y.) 44; Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417; Hall v. Pike, 100 Mass. 495 ; Walling v. Potter, 35 Conn. 183, 185 ; Richmond- v. Smith, 8 Barn. & C. (Eng.) 9, 11.; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416; Parker v. Flint, 12 Mod. (Eng.) 254, 255; Allen y. Smith, 12 C. B. N. S. (Eng.) 638. as Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Shoecraft v. Bailey, 25 Iowa, 553. 8» Rosa v. Mellin, 36 Minn. 421, 32 N. W. 172; Jalie v. Cardinal, 35 Wis. 118, § 92) DURATION OF THE EELATIOH 257 or more of these elements is lacking, thereby establishing that the person is not a guest. Thus, where the person agrees, in con- sideration of a special rate, to remain at the inn an extended period of time, this could negative the idea of his being a transient ; or the special agreement might show that, even when his stay is very short, the person is not to patronize the inn as such, but for other purposes. A guest, then, is a (1) transient (2) who patronizes the inn as such (3) with the consent of the innkeeper; and all the surrounding facts and circumstances that are relevant, including the special agreement where there is one, are to be taken into consideration in solving this question of fact. It is clear, from what has been said, that the same establishment may have a double character, being both a boarding house and an inn. Thus, it would be an inn as to transients patronizing it; while as to those living there as residents, under special contracts showing them not to be transients, it would be a mere boarding house. 70 Under such circumstances, the keeper of the inn would be liable, as an innkeeper to his guests, as a boarding house keeper to his boarders. DURATION OF THE RELATION 92. The relation of innkeeper and guest begins when the guest is accepted as such, and continues until it is terminated in one of the ways subsequently to be considered. When a transient applies to the innkeeper for entertainment and is accepted by the latter, he immediately becomes a guest. 71 Some of the cases contain expressions to the effect that "taking the room is the decisive act to create the relation ;" T2 but it is clear, from what has already been said in discussing who are guests, that it is by no means essential that one be assigned a room in order to create the relation. 7 * The relation dates from the innkeeper's ae- ro Cromwell v. Stephens, 2 Daly (N. Y.) 15; Seward v. Seymour, Anthon Law Stud. (N. T.) 51; LTJSK y. BELOTE, 22 Minn. 468, Dobie Cas. Bail- ments and Carriers, 148. "Pinkertbn v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Ross v. Mellin, 36 Minn. 421, 32 N. W. 172 ; Healey v. Gray, 68 Me. 489, 28 Am. Rep. 80. 72 McDaniels v. Robinson, 26 Vt. 316, 324, 62 Am. Dec. 574. And see, as giving color to this view, Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32, 4 N. E. 398, 58 Am. Rep. 785. ts Since merely buying liquor has, as we have seen, been held sufficient to make one a guest. Kopper v. Willis, 9 Daly (N. T.) 460 ; McDonald v. Edg- erton, 5 Barb. (N. T.) 560 ; Fitch v. Casler, 17 Hun (N. T.) 126, 127 ; Atkin- son v. Sellers, 5 C. B. N. S. (Eng.) 442, 448 ; Bennet v. Mellor, 5 Term R. Dob.Bailm.— 17 258 INNKEEPERS (Cll. 8 ceptance, and that is the decisive factor. Its inception has nothing essentially to do with the receipt of any specific form of entertain- ment. The request for entertainment at the inn may be, and in fact often is, implied from the conduct of the intending guest, and he may be received as a guest in the same way. The personal as- sent of the innkeeper to receiving the guest, as we have seen, is not necessary; it may be given by an employe or agent authorized to do so. 74 The relation of innkeeper and guest, once established, continues until terminated in one of the ways later to be discussed. 76 The mere temporary absence of the guest from the inn, however, does not terminate the relation; 78 while the mere lapse of time in no way affects it, provided only that the guest still retains his char- acter as a transient. 77 RIGHTS AND DUTIES OF INNKEEPER— IN GENERAL 93. The duties of the innkeeper consist primarily of— (a) The duty to receive guests. (b) The duty to care for the comfort and safety of the guest. (c) The duty to care for the goods of the guest. The rights of the innkeeper turn chiefly about his compensation and his lien on the goods of the guest to secure that com- pensation. Analysis The rights and duties of the innkeeper will be considered ac- cording to the following analysis: (a) The duty to receive guests. (b) The duty to care for the comfort and safety of the guest. (c) The liability for the goods of the guest. (1) The nature of the liability. (2) For what goods liable. (3) Limitation of the liability. (Eng.) 273. See, also, cases cited In notes 53 and 54, holding persons guests who did not take lodgings. t* Gastenhofer v. Clair, 10 Daly (N. Y.) 265; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657. See cases cited in notes 64, 65. "s Post, § 104. ?« Brown Hotel Co. v. Burckhardt, 13 Colo. App. 59, 56 Pac. 188; Hays v. Turner, 23 Iowa, 214 ; Day v. Bother, 2 H. & C. (Eng.) 14. " Jalie v. Cardinal, 35 Wis. 118. See, also, cases cited in notes 67 and 68. § 94) THE DUTY TO RECEIVE GUESTS 259 (d) The right of compensation and lien. (1) Compensation. (2) Lien. (i) Nature and extent of the lien, (ii) Waiver of the lien, (iii) Enforcement of the lien. (e) The liability of the innkeeper as an ordinary bailee. (1) As an ordinary bailee for hire. (2) As a gratuitous bailee. In General The innkeeper has been denned and distinguished from those whose occupations seem to lie closest to him. Attention has also been directed to the question of who is a guest, and it has been seen that the innkeeper is technically such only as to one who is his guest. We next proceed to discuss the nature and extent of the rights and duties implied by law as inhering in the relation of inn- keeper and guest, and this discussion turns about the analysis given above. This discussion forms naturally the most important part of the law of innkeepers. SAME— THE DUTY TO RECEIVE GUESTS 94. The innkeeper is bound, provided he has accommodations for them, to receive as guests all proper persons who come to his inn, and who are able and willing to pay for their entertainment. In General The innkeeper by holding out his house as a public place to which travelers may resort thereby surrenders some of the rights which he would otherwise have over it. 78 He, according to Lord Holt, "has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King's subjects that will employ him." 78 By becoming, in a sense, a public servant, the innkeeper acquires certain unique " The ground upon which these restrictions are imposed is that persons engaged in this vocation are in some sense servants of the public, and in conducting their business they exercise a privilege conferred upon them by the public, and they have secured to them by the law certain privileges and rights which are not enjoyed by the members of the public generally. Bow- lin v. Lyon, 67 Iowa, 536, 25 N. W. 766, 56 Am. Rep. 355. And cf. Beale v. Posey, 72 Ala. 323, 330 ; De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969. " Lane v. Cotton, 12 Mod. (Eng.) 472. 260 INNKEEPERS (Ch. 8 privileges, and owes to the public unique duties. Holding out the inn as a public place of entertainment for travelers, he cannot re- fuse to serve proper persons who come under. that character, in a proper manner, and at suitable times, so long as he has the means of accommodation for them. 80 Subject to the limitations about to be discussed, as was said in a leading English case: 81 "The innkeeper is not to select his guests. He has no right to say to one, You shall come into my inn, and to another, You shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants." The innkeeper, therefore, holding him- self out to serve the public indifferently, must, in the absence of a good excuse, live up to his holding out. This duty to receive as guests all proper persons who apply is imposed by law, and for any violation of it by the innkeeper there are remedies both criminal and civil. For a wrongful re- fusal to receive a person as a guest, it is held that the innkeeper may be indicted and held criminally liable. 82 The person whom he wrongfully declined to receive may bring a civil action " against the innkeeper and recover such damages as he suffered in consequence of the wrong. In exceptional cases, even puni- tive damages 84 may sometimes be recovered . Excuses for Refusal to Receive Guests Of course, the innkeeper's duty is commensurate with his fa- cilities and he is not liable for refusal to accept a guest, when so Cornell v. Huber, 102 App. Div. 293, 92 N. T. Supp. 434; Willis v. Mo- Mahon, 89 Cal. 156, 26 Pac. 649 ; Watkins v. Cope, 84 N. J. Law, 143, 86 Atl. 545 ; Kirkman v. Shawcross, 6 Term R. (Eng.) 14, 17 ; Rex v. Ivens, 7 Car. & P. (Eng.) 213. That he cannot refuse accommodation to an infant or a married woman traveling alone, see Watson v. Cross, 2 Duv. (Ky.) 147. An innkeeper is not bound to receive and keep horses or other property of a person who is neither a traveler nor a guest. Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. ei Rex v. Ivens, 7 Car. & P. (Eng.) 213. 8 2 Commonwealth v. Mitchell, 2 Pars. Eq. Cas. (Pa.) 431; Id., 1 Phila. (Pa.) 63 ; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416 ; Rex v. Ivens, 7 Car. & P. (Eng.) 213. See admirable summing up of Coleridge, J., in this last case. as Watson v. Cross, 2 Duv. (Ky.) 147, 148; Hawthorn v. Hammond, 1 Car. & K. (Eng.) 404 ; Cornell v. Huber, 102 App. Div. 293, 92 N. Y. Supp. 434 ; Wil- lis v. McMahon, 89 Cal. 156, 26 Pac. 649 ; McHugh v. Schlosser, 159 Pa. 480. 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699. The last two cases cited are also interesting as to the elements of damages recoverable against the inn- keeper. See, also, on that subject, Malin & Browder v. McCutcheon, 33 Tex. Civ. App. 387, 76 S. W. 586. s* McCarthy v. Nlskern, 22 Minn. 90 (person turned away with abusive and Insulting language). § 94) THE DUTY TO RECEIVE GUESTS 261 his inn is full and his accommodations are exhausted." Again, he is not obliged to receive one who is not able and willing to pay for his entertainment, 88 and such payment may be demand- ed in advance. 87 Even his public profession does not demand that he make the inn a common receptacle for all comers, 're- gardless of their character and condition. And, by virtue of his duty properly to care for and protect his guests, it is imperative that certain persons should be excluded from the inn. The inn- keeper violates no duty, unless the one he declined to receive was a proper person. Accordingly it has been held that the innkeeper is justified in refusing to receive one who is drunk, 88 or disorderly, 89 or suf- fering from a contagious disease, 90 or filthy, 91 persons of evil reputation, 92 thieves or common brawlers, 98 persons coming to the inn for an illegal purpose, 94 and prizefighters, 90 who violate the criminal laws against prizefighting. But it has been held that an innkeeper cannot refuse to accept a person because he lives in the same town, if he is a traveler, 96 one whose costume is uncon- 86 Browne v. Brandt, [1902] 1 K. B. (Bng.) 696, 71 L. J. K. B. 367. Gordon v. Sieber, 25 Q. B. D. (Eng.) 491. Commonwealth v. Mitchell, 2 Pars. Bq. Cas. (Pa.) 431; Id., 1 Phila. (Pa.) 63. se Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Thompson v. Lacy, 3 Barn. & Aid. (Eng.) 283, 286 ; Watson v. Cross, 2 Duv. (Ky.) 147 ; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657 ; Grlnnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. The price of accommodation need not be tendered un- less it is demanded or the refusal to receive is on that ground. Rex v. Ivens, 7 Car. & P. (Eng.) 213. But see Fell v. Knight, 8 Mees. & W. (Eng.) 269, 276. st Bac. Abr. "Inns and Innkeepers," C; Beale, Innkeepers, § 244; Mulliner v. Florence, 3 Q. B. D. (Eng.) 484, 47 L. J. Q. B. 700; Fell v. Knight, 8 M. & W. (Eng.) 276. as Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Rex v. Ivens, 7 Car. & P. (Eng.) 213. 8» Beale v. Posey, 72 Ala. 323; Goodenow v. Travis, 3 Johns. (N. Y.) 427. »o Beale, Innkeepers, § 93; Levy v. Corey, 1 City Ct. R. Supp. (N. Y.) 57. »i State v. Steele, 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516, 19 Am. St. Rep. 573 ; Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209. »2 Goodenow v. Travis, 3 Johns (N. Y.) 427. 83 Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Bac. Abr. "Inns," A; 1 Hawk. P. C. c. 78, § X. »* Markham v. Brown, 8 N. H. 523, 528, 31 Am. Dec. 209. »rotect the goods from the act of God, he is liable. Scheffer v. Corson, 5 S. D. !33, 58 N. W. 555. sb Howe Machine Co. v. Pease, 49 Vt. 477; METCALF v. HESS, 14 111. 129, )obie Cas. Bailments and Carriers, 160. so This principle is applicable to bailments in general (as we have seen), nd (as we shall see) even forms an exception to the rigid insuring liability f the common carrier of goods. See ante,- § 16 ; post, p. 338. 87 Watson .v. Loughran, 112 Ga. 837, 38 S. E. 82; Purvis v. Coleman, 21 I. Y. Ill; Fowler v. Dorlon, 24 Barb. (N. Y.) 384; LANIER v. YOUNG- 8 8 Houser v. Tully, 62 Pa. 92, 1 Am. Rep. 390; Calye's Case, 8 Coke (Eng.) 32. § 96) LIABILITY FOB THE GOODS OF THE GUEST 271 necessary display of money or valuables, or leaving them where they would tempt thieves, may be such negligence. 39 But failure to lock or bolt his door is not. necessarily negligence on the part of the guest. 40 It is evidence, however, from which a jury under varying circumstances either may or may not find the guest guilty of negligence. 41 Nor is the innkeeper exonerated because a theft is committed by a fellow guest, with whom the owner of the stolen goods had consented to occupy the same room. 42 As usually invoked, the rule is simply an application of the great doctrine of contributory negligence. Accordingly, there BLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Kep. 451; Walsh v. Porterfield, 87 Pa. 376 ; Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471 ; Berk- shire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417; Jalie v. Cardinal, 35 Wis. 118, 130 ; Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654 ; Burrows v. Trie- ber, 21 Md. 320, 83 Am. Dec. 590 ; Elcox v. Hill, 98 U. S. 218, 25 L. Ed. 103 ; Morgan v. Ravey, 6 Hurl. & N. (Eng.) 265; Cashill v. Wright, 6 El. & Bl. (Eng.) 891 ; Oppenheim v. Hotel Co., L. R. 6 C. P. (Eng.) 515. But see Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N. W. 954, 52 Am. Rep. 806. An innkeeper is liable for the safe-keeping of the valise and box of a peddler, his guest, al- though he was not notified of the nature and value of their contents, and the peddler was too drunk to take proper care of it. Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N. W. 954, 52 Am. Rep. 806. Evidence of gross neglect of the owner of property, to exempt the innkeeper from liability for its loss, must be confined to the period while he was a guest at the innkeeper's house. Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590. so Cunningham v. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 850, 57 Am. St. Rep. 878; Armistead v. Wilde, 17 Q. B. (Eng.) 261 ; Cashill v. Wright, 6 El. & Bl. (Eng.) 891. Whether or not this is negligence would depend on the circumstances of the particular case. *o Puller v. Coats, 18 Ohio St. 343 ; Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669 ; Buddenburg v. Benner, 1 Hilt. (N. Y.) 84 ; Classen v. Leopold, 2 Sweeney (N. Y.) 705 ; Gile v. Libby, 36 Barb. (N. Y.) 70; Murchi- son v. Sergent, 69 Ga. 206, 47 Am. Rep. 754; Bonier v. Owens, 60 Ga. 185; LANIER v. YOUNGBLOOD, 73 Ala. 587, 594, Dobie Cas. Bailments and Car- riers, 162; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Rep. 451; Batterson v. Vogel, 10 Mo. App. 235; Profilet v. Hall, 14 La. Ann. 524; Spice v. Bacon, 36 Law T. N. S. (Eng.) 896; Herbert v. Markwell, 45 Law T. N. S. (Eng.) 649; Morgan v. Ravey, 2 Fost. & F. (Eng.) 283, 6 Hurl. & N. 265; Op- penheim v. Hotel Co., L. R. 6 C. P. (Eng.) 515; Mitchell v. Woods, 16 Law T. N. S. (Eng.) 676. 4i Bohler v. Owens, 60 Ga. 185 ; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Rep. 451; Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754; Oppenheim v. Hotel Co., L. R. 6 C. P. (Eng.) 515; Spice v. Bacon, 36 Law T. N. S. (Eng.) 896 ; Herbert v. Markwell, 45 Law T. N. S. (Eng.) 649. 42 Olson v. Crossman, 31 Minn. 222, 17 N. W. 375 ; Gile v. Libby, 36 Barb. (N. Y.) 70; Buddenburg v. Benner, 1 Hilt. (N. Y.) 84. If the fellow guest be the companion of the guest, and shares the room at the instance of the guest, then the innkeeper is not liable. See Calye's Case, 8 Coke (Eng.) 32 ; Horslow's Case, Y. B. 22 Hen. VI, 21, pi. 38. 172 INNKEEPERS (Ch. 8 must first be fault or negligence on the part of the guest, or ome one whose conduct is chargeable to him, and next this must Lave contributed to the loss.* 3 Thus, when the guest gave de- ailed instructions to the innkeeper as to the method of caring or the goods, and loss occurs as a result of following such in- tructions, there can be no recovery. 44 The question of what acts on the part of the guest constitute tegligence, and whether they contributed to the loss, is one of act for the jury, to be determined by the facts of each case,* 5 inless both the facts and the inference to be drawn from the facts re so clear that the judge can take the question from the jury .nd decide it himself as a matter of law.* 8 The case probably nost frequently before the courts is the guest's failure to lock or lolt the door of his room.* 7 It is impossible to say this is, or is not, legligent, without stating the facts of the individual case. Thus he value of the property kept in the room, knowledge of such value >y persons about the inn, the character of such persons, the loca- ion of the room rendering unobserved access to it easy or difficult, .nd many other considerations, might enter into the problem. The same might be said as to a guest's publicly exhibiting his noney or other valuables.* 8 In the absence of statute or unique ircumstances, it is ordinarily held that the guest's retention of r aluables in his possession,* 8 or the failure of the guest to inform he innkeeper of the value of a package deposited with him, 60 is lot of itself such negligence as will bar a recovery by the guest or loss of, or damage to, the goods. 43 LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Car- ters, 162; Armistead v. Wilde, 7 Q. B. (Eng.) 261. ** Owens v. Geiger, 2 Mo. 39, 22 Am. Dec. 435. *b Jefferson Hotel Co. v. Warren, 128 Fed. 565, 63 C. C. A. 193; Hadley v. Fpshaw, 27 Tex. 547, 86 Am. Dec. 654. The burden of proving this rests on lie innkeeper. If, in spite of such negligence on the guest's part, the inn- eeper might, by the exercise of reasonable care, still have averted the loss, le innkeeper is liable. Watson v. Loughran, 112 Ga. 837, 38 S. E. 82. As 3 what is contributory negligence on the part of the guest, see Eden v. Drey, 5 111. App. 102; Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. St Lep. 444. *e LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Car- ters, 162. *i See cases in notes 40 and 41, 4s See cases cited in note 39. 48 Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669; Murchl- >n v. Sergent, 69 Ga. 206, 47 Am. Rep. 754. oo Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. St. Kep. 444; owell v. De Wald, 2 Ind. App. 303, 28 N. B. 430, 50 Am. St. Rep. 240; oskery v. Nagle, 83 Ga. 696, 10 S. H. 491, 6 L. R. A. 483, 20 Am. St Rep. 333. § 96) LIABILITY FOE THE GOODS OP THE GUEST 273 Reasonable Regulations of the Innkeeper To enable the innkeeper duly to discharge his duty to the public and to safeguard the goods of the traveler from loss, while in a house ever open to the public, it may become necessary for the innkeeper to provide special means, and to make necessary regu- lations and requirements to be observed by the guest. When such means are proper and such regulations are reasonable, and when they are brought to the actual notice of the guest, the innkeeper will not be responsible for any loss due to a failure on the part of a guest to comply with such regulations. 61 It should be noted that the innkeeper cannot reduce his respon- sibility simply by a regulation to that effect, though he may require certain conduct on the part of the guest with a penalty of exemption of the innkeeper irom liability for loss resulting from the guest's failure to conduct himself as directed. 62 The validity of the regula- tion is first dependent upon its reasonableness, 68 and next, to be binding on a particular guest, it must be brought to his notice. 64 Thus a regulation requiring guests to deposit clothing at the office would be clearly unreasonable. 66 Posting the notice in the guest's room, on the question of bringing the notice to the attention of the guest, is not conclusive. 66 Such notices, too, are to be construed strictly against the innkeeper. 67 The particular regulation most frequently before the courts re- quires that property of small bulk and great value be left at th? office of the inn for deposit in the safe. 68 In most states statutes have been passed (which will subsequently be discussed) imposing this same duty on the guest. 68 « Fuller v. Coats, 18 Ohio St. 343; Purvis v. Coleman, 21 N. T. Ill; Berk- shire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417 ; Cashill v. Wright, 6 EL & Bl. (Eng.) 891. 02 Stanton v. Leland, 4 E. D. Smith (N. Y.) 88. "Fuller v. Coats, 18 Ohio St. 343; Watson v. Loughran, 112 Ga. 837, 88 S. E. 82. '« Van Wyck v. Howard, 12 How. Prac. (N. Y.) 147. oo Stanton v. Leland, 4 E. D. Smith (N. Y.) 88. »« Bodwell v. Bragg, 29 Iowa, 232. of Pope v. Hall, 14 La. Ann. 324; Milford v. Wesley, Wils. (Ind.) 119; Brown Hotel Co. v. Burckhardt, 13 Colo. App. 59, 56 Pac. 188. os Fuller v. Coats, 18 Ohio St, 343; Stanton v. Leland, 4 E. D. Smith (N. Y.) 88; Profllet v. Hall, 14 La. Ann. 524; Milford t. Wesley, 2 Wils. (Ind.> 119. «» Post, § 98. Dob.Bailm. — 18 274 INNKBEPEBS (Ch. 8 SAME— SAME— TO WHAT GOODS THE INNKEEPER'S LIABILITY EXTENDS 97. The innkeeper's liability as such extends to all the goods of the guest brought within the inn, except — EXCEPTIONS : (a) Goods for show or for sale. (b) Goods retained in the exclusive custody of the guest. Goods of Guests Only Innkeepers are liable as such for goods deposited with them only by guests of their inns. 60 The keeper of an inn may, of course, incur a liability as bailee for the safe-keeping of goods which he has voluntarily undertaken to keep for others than guests, and the extent of this liability is subsequently considered. 61 The excep- tional liability, however, imposed by law on the innkeeper, is lim- ited to the goods of those who are technically guests. It is suffi- cient, though, if the guest have a special property, or even a pos- sessory interest, in the goods, such as that of a bailee or an agent. He need not be the owner of the goods to impose the exceptional responsibility on the innkeeper. 62 More Than is Necessary for Traveling The liability of an innkeeper for a loss by his guest ordinarily extends to all the movable goods and money which are placed «o In Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113, 105 Am. St Rep. 930, 2 Ann. Cas. 345, where the goods were received on the pre- sumption that one would become a guest, but he did not, it was held that the technical innkeeping responsibility did not arise. See, also, Slrauss v. County Hotel Co., 12 Q. B. D. (Eng.) 27; Miles v. International Hotel Co., 167 111. App. 440; Towson v. Havre de Grace Bank, 6 Har. & J. (Md.) 47, 14 Am. Dec. 254; McDaniels v. Robinson, 28 Vt. 387, 67 Am. Dec. 720; Grin- nell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. If a servant is robb°d of his master's money or goods while a guest at an inn, the master may main- tain an action against the innkeeper. Towson v. Havre de Grace Bank, supra. This principle applies to one who hires a horse and chaise from the owner, and intrusts them to an Innkeeper. Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471. A guest who is a mere depositary of the goods he brings with him may maintain an action against the innkeeper for their loss. Kel logg v. Sweeney, 1 Lans. (N. Y.) 397. Plaintiff's stallion stood at defendant's inn certain days each week, under an agreement, made for the season, for serving mares. Plaintiff had the key to the stall, and fed and cared for the horse. Defendant furnished the oats for the horse, and meals for the plain- tiff, at a price less than the ordinary rates to travelers. Held, that defend- ant's custody was not that of innkeeper, and that, therefore, he was not liable for the destruction of the barn and horse by fire without negligence on his part. Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244. oi See post, § 103. aa Kellogg v. Sweeney, 1 Lans. (N. Y.) 397. § 97) TO WHAT GOODS THE INNKEEPER'S LIABILITY EXTENDS 275 within the inn. 88 It is sometimes claimed that an innkeeper is liable only for such an amount of money as is necessary for the reasonable expenses of the guest, and for such goods as are neces- sary for the journey in question. 64 This distinction is sought to be maintained upon the analogy to the case of a carrier of pas- sengers, who is liable only for money or articles convenient to the traveler on his journey as these alone come within the techni- cal definition of baggage, and not for goods or merchandise, as such. 68 A brief consideration of the nature of the passenger's baggage, the methods of handling it on fast trains, and its rela- tion to freight, will show that the analogy is not a happy one. Ac- cordingly this contention is not supported by the cases, and inn- keepers have frequently been held liable both for goods and money, which could not be included within the technical definition of baggage. 66 But as to the amount of goods or money for which an innkeeper may be held liabfe, it would seem that, though this is not confined to baggage, there must be some limit, and that the innkeeper can- not be held liable as such for any very extraordinary amount of goods or any extremely unusual sum of money that the guest may see fit to bring to the inn. It is not clear just what such limit would be, but this would probably be governed by consider- «» Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669; Eden v. Drey, 75 111. App. 102; Berkshire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417 ; Towson v. Havre de Grace Bank, 6 Har. & J. (Md.) 47, 14 Am. Dec. 254 ; Wilkins v. Earle, 44 N. Y. 172, 4 Am. Bep. 655; Johnson v. Richardson, 17 111. 302, 305, 63 Am. Dec. 369. Cf. Simon v. Miller, 7 La. Ann. 360 ; Weisenger v. Taylor, 1 Bush (Ky.) 275, 89 Am. Dec. 626. But it is otherwise by statute in Maine. See Noble v. Milliken, 74 Me. 225, 43 Am. Rep. 581. 84 This limitation is held proper in the following cases: Profllet v. Hall, 14 La. Ann. 524; Treiber v. Burrows, 27 Md. 130; Pettigrew v. Barnum, 11 Md. 434, 69 Am. Dec. 212; Sasseen v. Clark, 37 Ga. 242. 05 See post, § 197. oe Eden v. Drey, 75 111. App. 102; Taylor v. Monnot, 4 Duer (N. Y.) 116; Kellogg v. Sweeney, 1 Lans. (N. Y.) 397; Wilkins v. Earle, 44 N. Y. 172, 4 Am. Rep. 655; Needles v. Howard, 1 E. D. Smith (N. Y.) 54; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Berkshire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417; Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N. W. 954, 52 Am. Rep. 806; Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669; Quinton v. Courtney, 2 N. C. 40; Sasseen v. Clark, 37 Ga. 242; Kent v. Shuckard, 2 Barn. & Adol. (Eng.) 803; Armistead v. White, 6 Eng. Law & Eq. 349. In Clute v. Wiggins, 14 Johns. (N. Y.) 175, 7 Am. Dec. 448, the guest recovered for certain bags of wheat and barley. In Piper v. Manny, 21 Wend. (N. Y.) 282, the recovery was for a tub of butter. In Sneider v. Geiss, 1 Yeates (Pa.) 34, the innkeeper was held liable for 230 Spanish milled dollars. In Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405, the" plaintiff re- covered the value of his horses, wagon, and a load of buckskin goods. 276 INNKEEPERS (Cll. 8 ations of practical common sense, and would be a question for the jury under proper instructions from the court." Goods Arriving Before or After the Guest If the innkeeping relation be actually established, the high responsibility of the innkeeper is the same, whether the goods be in the possession of the guest when he arrives at the inn, whether the property be conveyed to the inn before his arrival, or at a subsequent time during his stay at the inn. 88 Indeed, the same responsibility attaches to the innkeeper, even if the guest did not own the goods when he arrived, but purchased them and had them sent to the inn after his arrival. Provided the goods are brought to the inn, or accepted outside the inn, by the inn- keeper or his servants, as the goods of a guest, the innkeeper's unusual liability is in no way affected by the relation in time which the arrival of the goods bears to the arrival of the guest. Of course, this particular responsibility continues only so long as the relation of innkeeper and guest actually exists. Goods Received within the Inn The liability of the innkeeper does not attach, unless the goods are brought within the inn (infra hospitium), or otherwise placed within his control or custody. 89 It is not necessary, though, that the goods should be placed in his special keeping; but it is suffi- cient if they are properly deposited in the inn or intrusted to the ]care of his servants. 70 The innkeeper's liability, however, ex- tends to goods in all parts of the inn, and even to the outbuildings connected with the inn. 71 «7 Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303. as Flint v. Illinois Hotel Co., 149 111. App. 404; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dee. 657; Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303. But see Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113, 105 Am. St Rep. 930, 2 Ann. Cas. 345, where the owner sent the goods to the inn, but did not himself go to the inn. 6» Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471; Piper v. Man- ny, 21 Wend. (N. Y.) 282 ; Albin v. Presby, 8 N. H. 408, 29 Am. Dec. 679; Minor v: Staples, 71 Me. 316, 36 Am. Rep. 318; Norcross v. Norcross, 53 Me. 163; Bennet v. Mellor, 5 Term R. (Bng.) 273; Kent v. Shuckard, 2 Barn. & Adol. (Eng.) 803; Vance v. Throckmorton, 5 Bush (Ky.) 41, 96 Am. Dec. 327; Wind- ham v. Mead, 4 Leon. (Eng.) 96; Hawley v. Smith, 25 Wend. (N. Y.) 642; Maloney v. Bacon, 33 Mo. App. 501. to Labold v. Southern Hotel Co., 54 Mo. App. 567; Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242; 2 Kent, Comm. 593; Story, Bailm. § 479; McDonald v. Edgerton, 5 Barb. (N. Y.) 560; Rockwell v. Proctor, 39 Ga. 105. ti Albin v. Presby, 8 N. H. 408, 410, 29 Am. Dec. 679; Burrows v. Trieber, 21 Md. 320/83 Am. Dec. 590; McDonald v. Edgerton, 5 Barb. (N. Y.) 560' Bennet v. Mellor, 5 Term R. (Eng.) 273; Richmond v. Smith, 8 Barn. & C § 97) TO WHAT GOODS THE INNKEEPER'S LIABILITY EXTENDS 277 When the goods of the guest come into the control of the inn- keeper or his servants outside the inn, his high responsibility begins immediately upon such control, even before the goods reach the inn. Thus, as we have seen, when the innkeeper sends his porter to the station to receive the baggage of travelers, the innkeeping liability dates from such delivery to the porter. 72 If the goods are once intrusted to the. innkeeper or his servants, or properly de- posited within the inn, the innkeeper, of course, remains liable as such, if, on his own initiative, the goods are kept outside the inn. 73 A different result would follow, though, if the goods were put out- side the inn, either by the guest himself or by virtue of his in- structions. 7 * An innkeeper who also keeps a sea-bathing house, separate from the inn, is not liable as an innkeeper for goods and clothes of his guests, left there while the guests were bathing; re but he is in such (Bng.) 9. But see Sanders v. Spencer, 3 Dyer (Eng.) 266b. In Clute v. Wiggins, 14 Johns. (N. X.) 175, 7 Am. Dec. 448, the guest put his sleigh, loaded with wheat, into an outhouse appurtenant to the inn, where loads of the kind were usually received, but without specially committing it to the inn- keeper. The grain was stolen in the night, and the innkeeper was held liable for the loss. It would be otherwise if a traveler, on arriving at an inn, should place his loaded wagon under an open shed, not appurtenant to the inn, and near the highway, and make no request to the innkeeper to take it into his custody. '2 Ante, p. ; Sasseen v. Clark, 37 6a. 242; Dickinson v. Winchester, 4 Cush. (Mass.) 114, 50 Am. Dec. 760. An innkeeper employing a transportation company to furnish an omnibus and wagon to receive guests of the hotel at a railway depot, and to transport them and their baggage to the hotel, is lia- ble if the baggage of a guest delivered to such company is by it lost before reaching the hotel. Coskery v. Nagle, 83 Ga. 696, 10 S. E. 491, 6 L. R A. 483, 20 Am. St. Rep. 333. »« Piper v. Manny, 21 Wend. (N. Y.) 282; Cohen v. Manuel, 91 Me. 274, 39 Atl. 1030, 40 L. R. A. 491, 64 Am. St. Rep. 225. An innkeeper is responsible for the safe-keeping of a load of goods belonging to a traveler who stops at his inn for the night, if the carriage containing the goods be deposited in a place designated by the servant of the innkeeper, although such place be an open uninclosed space near the public highway. Hilton v. Adams, 71 Me. 19. But see Albin v Presby, 8 N. H. 408, 29 Am. Dec. 679. So, an innkeeper, on a fair day, upon being asked by a traveler, then driving a gig, of which he was the owner, "whether he had room for the horse," put the horse into the stable of the inn, received the traveler, with some goods, into the inn, and placed the gig in the open street, without the inn yard, where he was accus- tomed to place the carriages of his guests on fair days. The gig having been stolen from thence, held, that the innkeeper was answerable. Jones v. Tyler 28 E. C. L. (Eng.) 138. '* Windham v. Mead, 4 Leon (Eng.) 96; Hawley v. Smith, 25 Wend. (N. Y.) 642. " Minor v. Staples, 71 Me. 316, 36 Am. Rep. 318. 278 INNKEEPERS (Ch. 8 case a mere bailee, and responsible accordingly.™ One may be an innkeeper without being a bath-house keeper, or he may be a bath- house keeper without being an innkeeper, or the same person may engage in both employments, without incurring the liability of an innkeeper in transactions falling within his employment as the keeper of a bath-house. In like manner, a livery stable keeper may also be a common carrier of passengers ; but by so doing he does not become responsible in the one capacity for liabilities incurred in the other. This does not apply to bathrooms attached to or kept within hotels, but to separate buildings, erected upon the seashore, and used solely as places in which those who bathe in the sea change their garments, and leave their clothes and other valuables while so bathing. Exceptions to Innkeeper's Extraordinary Liability — Goods for Show or for Sale A well-defined exception to the innkeeper's extraordinary lia- bility exists when the guest applies for a room for the purpose of displaying goods for show or for sale. 77 Thus, when the guest takes to his room, not merely goods for safe-keeping and articles for his personal use* but merchandise, such as watches and jewelry, for the purpose of show or sale, he is then using the inn, not only as an inn, but also as a showroom or salesroom. It is accordingly not contemplated that the exceptional responsibility imposed on the innkeeper by the common law should be stretched to cover such cases. The guest here, by becoming an active seller or exhibitor, and inviting the public to come and go in the room in which the goods are exhibited, materially increases the risk of their loss, and the innkeeper is therefore, as to such goods, properly absolved from his special liability. 78 Same — Goods in Exclusive Possession of Guest An innkeeper may be relieved from responsibility by showing that the guest whose goods have been lost or injured took them 'o Tombler v. Koelling, 60 Ark. 62, 28 S. W. 795. 27 L. R. A. B02, 46 Am. St. Rep. 146 ; Bird v. Everard, 4 Mdsc. Rep. 104, 23 N. Y. Supp. 1008. 7T 2 Kent, Comm. 596; Story, Bailm. § 476; Fisher v. Kelsey, 121 V. S. 383, 7 Sup. Ct. 929, 30 L. Ed. 930, affirming (O. C.) 16 Fed. 71; Myers v. Cot- trill, 5 Biss. 465, Fed. Cas. No. 9,985; Burgess v. Clements, 4 Maule & S. (Eng.) 306; Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244; Becker v. Haynes (C. C.) 29 Fed. 441. Nor is the rule changed by the fact that the guest sleeps in the room with the articles. Myers v. Cottrill, supra. But for personal goods of the guest (not for show or sale) in the same room the innkeeper is liable as such. 7 8 Scheffer v. Corson, 5 S. D. 233, 58 N. W. 555; Carter v. Hobbs, 12 Mich- 52, 83 Am. Dec. 762; Farnsworth v. Packwood, 1 Starkie (Eng.) 249. § 98) LIMITATION OP THE INNKEEPEB'S LIABILITY 279 into his exclusive custody; for the innkeeper's responsibility is co- extensive only with his control of the goods. 79 The ruie is, of course, the same when the guest intrusts his goods to another guest or inmate, 80 or excludes the innkeeper completely from control of the goods by any special arrangement inconsistent with such con- trol. 81 As we have already seen, however, it is not necessary, in order to impose liability on the innkeeper as such, that the goods be actually delivered to the innkeeper, so that a bailment is created. All that the law requires is that they be in his general control. 82 A strong showing must therefore be made as to the guest's ex- clusive custody, in order that the innkeeper may escape from his high responsibility; and a large measure of personal control over the goods may be exercised by the guest, provided it be not ex- clusive of the innkeeper's general control, without abating the lat- ter's liability. Thus the retention of needed money or valuables on the person of the guest is not ordinarily such exclusive possession as will excuse the innkeeper, 83 nor is the fact that the guest directs his goods to be kept in a certain part of the inn, 84 or that he ordered them taken for his personal use to his bedroom. 85 SAME— SAME— LIMITATION OF THE INNKEEPER'S LIABILITY 98. The liability of the innkeeper as to the goods of the guest may be limited: (a) By contract. (b) By statutes, which usually limit his liability: (1) In some states, for losses above a certain amount. (2) In a great many states, on his giving notice, for goods not delivered to the innkeeper to be put in his safe. " Vance v. Throckmorton, 5 Bush (Ky.) 41, 96 Am. Dec. 327; Weisenger v. Taylor, 1 Bush (Ky.) 275, 276, 89 Am. Dec. 626. «o Sneider v. Geiss, 1 Teates (Pa.) 34; Houser v. Tully, 62 Pa. 92, 1 Am. Rep. 390. si Vance v. Throckmorton, 5 Bush (Ky.) 41, 96 Am. Dec. 327. 82 FAY v. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198, Dobie Cas. Bailments and Carriers, 146; Read v. Amldon, 41 Vt. 15, 98 Am. Dec. 560; Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590. as Jalle v. Cardinal, 35 Wis. 118; Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669. si Fuller v. Coats, 18 Ohio St. 343 ; Packard v. Northcraft, 2 Mete. (Ky.) 439. s b Fuller v. Coats, 18 Ohio St. 343; Epps v. Hinds, 27 Miss. 657, 61 Am. Dec. 528; Shaw v. Ray, 1 Cr. & Dix, C. C. (Ireland) 84. 280 INNKEEPERS (Ch. 8 By Contract The exceptional liability of the innkeeper, like that of the com- mon carrier may, no doubt, be restricted, in a measure at least, by an express contract with the guest. 86 Though there are few cases on the subject, it would seem -that such contracts should be valid, provided they do not contravene a sound public policy. On prin- ciple, he should be permitted to reduce his liability by express con- tract to that of an ordinary bailee for hire. 87 But, by virtue of his public profession and calling, he would hardly be permitted, if the analogy of the common carrier counts for anything, to exempt him- self from the consequences of his negligence ; and surely he could not contract away his liability arising out of his own fraud or active wrongdoing. Nor could he thus relieve himself from all respon- sibility for the acts of his servants. The innkeeper, though, cannot reduce his liability, on the theory of an implied contract, by merely posting notices in a room, even though the guest occupy the room. 88 Nor could he limit his re- sponsibility by a mere printed heading in the register of an inn, even though the guest sign this register, unless the attention of the guest is directed to such heading or notice and he indicates his assent thereto. 89 se On this point, Mr. Schouler says: "The right of mitigating this respon- sibility by special contract with the particular guest receives, thus far, but slight attention from our courts; yet, if analogies can serve us, they tend plainly to the conclusion that any innkeeper may make a qualified or limited acceptance of his guest's property, though not, in America at least, to the extent of divesting himself of all responsibility for the acts of servants, fel- low lodgers, or others about the inn, nor certainly so as to excuse misconduct or the want of ordinary care on his own part." Schouler, Bailm. (2d Ed.) § 309. The right is also recognized by Kent (2 Oomm. 594), Van Zile (Bailm. & Carr. § 372), and Goddard (Bailm. & Carr. § 186). Mr. Beale, however (Beale, Innkeepers, § 211), seems to question the right; and though the ques- tion was not involved in Lane v. Cotton, 1 Salk. (Bng.) 17, Holt, C. J., said that innkeepers are "bound to keep safely, and answer all neglects of those that act under them; and so they would be, though they expressly caution against it." s? See the following cases, bearing on the right of the innkeeper thus to limit his liability by contract: Sanders v. Spencer, 3 Dyer (Eng.) 266b; Richmond v. Smith, 8 B. & O. (Eng.) 9, 15 E. C. L. 144; Van Wyck v. Howard, 12 How. Prac. (N. Y.) 147; Fuller v. Coats, 18 Ohio St. 343; McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657. se Bodwell v. Bragg, 29 Iowa, 232. And see Burbank v. Chapln, 140 Mass. 123, 2 N. E. 934. se Remaley v. Leland, 29 N. T. Super. Ct. 358 ; Bernstein v. Sweeny, 33 N. V. Super. Ct. 271 ; Olson v. Crossman, 31 Minn. 222, 17 N. W. 375. And see Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754. § 98) LIMITATION OP THE INNKEEPEB'S LIABILITY 281 We have already seen that the guest must conform to the regula- tions of the innkeeper, provided these are reasonable and are brought to the actual notice of the guest. 90 This, however, is not on the theory of an implied contract, but rather on the score that the failure of the guest to comply with the regulations, resulting in loss or injury as to the goods, constitutes such contributory negligence on his part as to bar a recovery against the innkeeper. Though it is sometimes said that an innkeeper's liability may be limited by custom, 61 yet this can be true only on the theory of an implied contract. Therefore a guest is not bound by a custom of which he was ignorant, for his assent thereto cannot properly be presumed. 92 By Statute — Losses Above a Certain Amount By statutes in a few states, the liability of innkeepers is limited to a specific amount, 98 or to such things as is usual and prudent for a guest to retain on his person or in his room, 9 * or to such goods as are needed by the guest for present use. 95 These statutes simply prescribe a maximum, either in money or in restrictive classes of goods, beyond which the innkeeper's liability does not extend. Same — Posting Notices Requiring Delivery of Certain Property to Innkeeper In most states, the statutes limiting the responsibility of the inn- keeper provide that an innkeeper may avoid liability as such for the loss of goods not intrusted to his special care by posting notices, in the manner prescribed by the statutes, stating that he has a safe for the deposit of money and valuables and will not be responsible for goods falling within these classes unless they are deposited 06 Ante, p. 273. »i Albin v. Presby, 8 N. H. 408, 29 Am. Dec. 679. »2 Berkshire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417. When the pro- prietor of an hotel employs a servant to receive and keep the property of ■ guests while at meals, his liability for the default of this servant in the cus- tody of property so received is not affected by the fact that he has also pro- vided a check room for the safe-keeping of such property. Labold v. South- ern Hotel Co., 54 Mo. App. 567. »a See Rev. Laws Mass. 1902, c. 102, § 10; Pub. Acts Mich. 1905, No. 42, § 1; Stimson, Am. St. Law, § 4392 ; Civ. Code Cal. § 1859. The subject of statu- tory limitations on the innkeeper's liability by statute is admirably discussed in Beale, Innkeepers, c. 31, on which the above treatment is largely based. In an appendix to this work, the statutes of the various states affecting inn- keepers are reproduced in full. »« Such statutes are frequently qualifications of statutes of the type dis- cussed below. See, for example, Starr & O. Ann. St. 111. 1896, c. 71, par. 2 ; Code Iowa 1897, I 3138. »o See Rev. St. Me. 1903, c. 29, § 5 ; Stimson, Am. St. Law, § 4392. 282 INNKEEPEBS (Ch. 8 with him. 96 As these statutes differ greatly in their wording, and in the construction placed on them by the courts of the various states, the particular statute and the decisions construing it should always be consulted. A few general observations on these stat- utes, however, may not be amiss. Such statutes, being in derogation of the common law, must be strictly construed. 87 The requirements of the particular statute as to the posting of the notice (such as the nature of the notice, type in which it is to be printed, method of posting, etc.) must be strictly complied with by the innkeeper, or he cannot claim the exemption or limitation granted by the statute. 88 Thus, by the better rule (though there are cases to the contrary), 98 even actual notice to the guest is not sufficient if the required statutory notice has not been posted. 1 Again, when the statute requires the innkeeper to have a safe or vault for the deposit of valuables, the innkeeper must pro- vide one or else no advantage accrues to him from the statute. 2 Under most of the ^statutes, even if the innkeeper has complied with all the statutory provisions, the innkeeper is not relieved of all liability as to goods not deposited with him. He is not an in- surer as to such goods, however, but is liable for loss or damage only as an ordinary bailee for hire ; that is, when such loss or dam- age is due to his negligence or that of his servants. 8 But the effect of such statutes, it is usually held, is to place upon the guest the burden of proving such negligence. 4 For goods deposited with the innkeeper he remains responsible, just as at common law. 6 »« For specimens of these statutes, see Code Ala. 1896, §§ 2541, 2542; Eev. Code Del. 1852, amended 1893, p. 409 (14 Del. Laws. e. 417, p. 390, § 1); Comp. St. Ky. 1894, § 2176; Rev. Laws Minn. 1905, § 2810. See, also, 1 Stim. Am. St. Law, § 4392. "7 Eamaley v. Leland, 43 N. Y. 539, 3 Am. Rep. 728; LANIER v. YOUNG- BLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162 ; Briggs v. Toad, 28 Misc. Rep. 208, 59 N. Y. Supp. 23. as Porter v. Gilkey, 57 Mo. 235 (size of type); CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Dobie Cas. Bailments and Carriers, 59; Olson v. Crossman, 31 Minn. 222, 17 N. W. 375; LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Beale v. Posey, 72 Ala. 323; Spice v. Bacon, 36 Law T. N. S. (Eng.) 896, 2 Ex. D. 463. »9 Purvis v. Coleman, 21 N. Y. 111. Cf. Shultz v. Wall, 134 Pa. 262, 19 Atl. 742, 8 L. R. A. 97, 19 Am. St. Rep. 686. i Batterson v. Vogel, 8 Mo. App. 24 ; LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Porter v. Gilkey, 57 Mo. 235. 2 Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772. » Medewar v. Hotel Co., [1891] 2 Q. B. (Eng.) 11, 64 L. T. 851 ; Faucett t. Nichols, 4 Thomp. & C. (N. Y.) 597; Beale v. Posey, 72 Ala. 323, 331. * Elcox v. Hill, 98 U. S. 218, 25 L. Ed. 103; Burnham v. Young, 72 Me. 273. b Wflkins v. Earle, 44 N. Y. 172, 4 Am. Rep. 655. The same is true, though the deposit is not made, if this is waived by the innkeeper. Friedman v. Breslin, 169 N. Y. 574, 61 N. E. 1129. § 99) THE BIGHT OF COMPENSATION AND LIEN 283 The question of what goods must be deposited' with the inn- keeper is one of no little difficulty. By some statutes, goods needed for the personal use of the guest need not be deposited, but may be retained in the guest's room, or on his person, without diminishing the innkeeper's responsibility. 8 Other statutes enumerate the class- es of goods to be deposited, which are usually of small bulk and rela- tively large value. 7 When this enumeration does not include arti- cles of personal use, of course no deposit of such articles is neces- sary to fix the common-law liability of the innkeeper. 8 When the enumeration does include such articles, however, the decisions are in conflict. Some cases hold that money for current expenses and personal articles are still impliedly exempted, and the innkeeper remains responsible as at common law. 9 Other cases, probably the greater number, insist that there is no such implied exception, and that the guest has his choice of depositing the goods and insisting on the technical innkeeping liability, or of not depositing them, in which case the innkeeper is, like an ordinary bailee, liable only for negligence. 10 Perhaps the wording of the individual statutes may account in a measure for much of this conflict. SAME— THE RIGHT OF COMPENSATION AND LIEN— THE COMPENSATION OF THE INNKEEPER 99. The innkeeper is entitled to his compensation and may require payment in advance. His charges, however, must be rea- sonable. The innkeeper is, of course, entitled to his proper compensation, as this is the sole advantage that he derives from the innkeeping relation. 11 Owing to his intimate association with, and his im- e See, for example, Rev. Code Del. 1852, amended 1893, p. 409 (14 Del. Laws, c. 417, p. 390, § 1) ; Code Iowa 1897, § 3138; Laws Neb. 1905, c. 81, § 2. i See, for example, Comp. St. Ky. 1894, § 2176; Voorhies' Rev. Civ. Code La. 1889, art. 2969; Rev. Laws Minn. 1905, § 2810. For cases construing such provisions, see Rains v. Maxwell House Co., 112 Tenn. 219, 79 S. W. 114, 64 L. E. A. 470, 2 Ann. Cas. 488; Briggs v. Todd, 28 Misc. Rep. 208, 59 N. Y. Supp. 23. s Treiber v. Burrows, 27 Md. 130. » Maltby v. Chapman, 25 Md. 310 ; Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754. i° Hyatt v. Taylor, 42 N. T. 258; Rains v. Maxwell House Co., 112 Tenn. 219, 79 S. W. 114, 64 L. R. A. 470, 2 Ann. Cas. 488; Lang v. Arcade Hotel Co., 9 Ohio Dec. 372. ii Newton v. Trigg, 1 Shower (Eng.) 268; Baldwin v. Webb, 121 Ga. 416, 49 S. E. 265. See, also, Roche v. Road Driver's Ass'n of New York (Sup.) 96 N. Y. Supp. 205. 284 innkeepers • (Ch. 8 portance to, th'e public, the law requires of the innkeeper, as it does of the common carrier, that his charges be reasonable." Were it not for this qualification, the innkeeper might also evade his duty to receive as guests all proper persons who apply by fixing his com- pensation so high that the intending guest could not possibly pay it. In the absence of statutes, 18 which are rare in this country, regulating his compensation, the innkeeper may fix his charges as he sees fit, provided that they are reasonable. In determining whether the charges are reasonable in a particular case, the charac- ter of the accommodations furnished, the locality of the inn, and various other considerations apply, 14 while evidence as to the charges made for similar accommodations at neighboring inns is relevant and important. 16 Compelled by law to serve indifferently all proper persons who apply, the innkeeper, like the common carrier, is permitted by law to require payment of his charges in advance. 16 He can therefore demand his compensation as soon as the relation of innkeeper and guest is established. 17 This right, however, is not as a rule exer- cised by the innkeeper, though many make a practice of enforcing it as to guests who come to the inn without baggage. Criminal Statutes Protecting Innkeeper's Compensation The innkeeper is further protected as to his compensation by criminal statutes in most of the states, designed to deter un- scrupulous persons from securing entertainment at an inn without payment therefor. 18 Even under these statutes, however, the mere failure to pay the charges of the innkeeper is not made crim- inal unless it is in some way connected with fraud. 18 Under most of the statutes, it is made a crime to obtain the entertainment with intent to defraud the innkeeper of his charges, in connection with 12 Roche v. Road Driver's Ass'n of New York (Sup.) 96 N. Y. Supp. 205; Newton v. Trigg, 1 Shower (Eng.) 268; Baldwin v. Webb, 121 Ga. 416, 49 S. E. 265. is See Banks v. Oden, 1 A. K. Marsh. (Ky.). 546; Com. v. Shortridge, 3 J. J. Marsh. (Ky.) 638. i* Proctor v. Nicholson, 7 O. & P. (Eng.) 67. iB Cross v. Wilkins, 43 N. H. 332. ie Fell v. Knight, 8 M. & W. (Eng.) 276; Mulliner v. Florence, 3 Q. B. D. (Eng.) 484, 47 L. J. Q. B. 700. it Medawar v. Grand Hotel Co., [1891] 2 Q. B. (Eng.) 11, 60 L. J. Q. B. 209. is See Beale, Innkeepers, c. 32. The constitutionality of such statutes is now well established. State v. Benson, 28 Minn. 424, 10 N. W. 471; State v. Tardley, 95 Tenn. 546, 32 S. W. 481, 34 L. R. A. 656. As penal statutes, they are to be strictly construed. Hutchinson v. Davis, 58 111. App. 358. is People v. Nicholson, 25 Misc. Rep. 266, 55 N. Y. Supp. 447; People V. Klas, 79 Misc. Rep. 452, 141 N. X. Supp. 212. § 100) THE INNKEEPER'S LIEN — ITS NATURE AND EXTENT 285 some false pretence. 20 Many statutes also make it a crime for the guest, who has not paid the innkeeper, to remove his baggage sur- reptitiously from the inn, either apart from, or in connection with, obtaining the entertainment with fraudulent intent. 21 The in- dividual statutes should in all cases be carefully consulted. Usual- ly the statutes include keepers of boarding houses and lodging houses. 22 SAME— SAME— THE INNKEEPER'S LIEN— ITS NATURE AND EXTENT 100. The innkeeper has a lien, to secure his proper compensation, on all the property within the inn belonging to the guest. In General As a further incident of his duty to entertain the public, the common law gives to the innkeeper a lien on the goods of the guest within the inn to secure the payment of his proper charg- es. 23 / The innkeeper can thus retain (until his compensation is paid) the goods brought by the guest to the inn ; but he cannot detain the person of the guest, nor could he "strip the guest of his clothes." 24 Since the innkeeper is compelled to receive even persons incompetent to contract, such as married women and in- fants, his lien is valid in such cases. 26 The lien is similar in its various legal incidents to other common-law liens; but the lien arises on goods brought to the inn by the guest, even though they are never actually delivered to the innkeeper, but are retained by the guest in his own possession. Even property which is exempt from execution and attachment, if brought to the inn, is subject to the innkeeper's lien. 26 As a general rule, then, if the goods 20 State v. Kingsley, 108 Mo. 135, 18 S. W. 994; Chauncey ▼. State, 130 Ala. 71, 30 South. 403, 89 Am. St. Eep. 17; Ex parte Williams, 121 Cal. 328, 53 Pac. 706; State v. Black, 75 Wis. 490, 44 N. W. 635. 2i State v. Engle, 156 Ind. 339, 58 N. E. 698; Commonwealth v. Morton, 6 Luz. Leg. Reg. (Pa.) 207; Commonwealth v. Billig, 25 Pa. Super. Ct. 477. 22 Commonwealth v. Gough, 3 Kulp. (Pa.) 148. 2» Horace Waters & Co. v. Gerard, 189 N. T. 302, 82 N. E. 143, 24 L. R. A. (N. S.) 958, 121 Am. St. Rep. 886, 12 Ann. Cas. 397; R. L. Polk & Co. v. Melenbacker, 136 Mich. 611, 99 N. W. 867; Nance v. O. K. Houck Piano Co. (Tenn.) 155 S. W. 1172; Murray v. Marshall, 9 Colo. 482, 13 Pac. 589, 59 Am. Rep. 152; Manning v. Hollenbeck, 27 Wis. 202; COOK v. KANE, 13 Or. 482, 11 Pac. 226, 57 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 166. " Sunbolf V. Alford, 3 M. & W. (Eng.) 248, 7 L. J. Ex. 60. « Watson v. Cross, 2 Duv. (Ky.) 147. *« Swan v. Bournes, 47 Iowa, 501, 29 Am. Rep. 492. 286 INNKEEPERS (Ctl. 8 are brought to the inn and are owned by the guest, the innkeeper can detain them as security for his unpaid charges. In most of the states, provision is made by statute for the lien of the inn- keeper. 27 Goods Not Owned by the Guest There is grave conflict among the courts as to whether the inn- keeper has a lien on goods brought to the inn by a guest who is not the owner. 28 .- When the guest has no actual or apparent right to deposit the goods at the inn, and the innkeeper knows that the guest's possession is wrongful, then clearly it would seem that there is no lien. 29 On the other hand, it seems only fair that the lien should exist, when the guest in charge of the goods is the servant, agent, or bailee of the owner, using the goods about the owner's business, -so that authority from the owner to subject the goods to the lien might reasonably be presumed. 30 The lien should also exist, even when no such actual authority on the part ot the guest exists, if the owner has so clothed the guest in posses- sion of the goods with the indicia of ownership, that the doctrine of estoppel can be invoked against the owner. 31 The English courts, 32 however, and in general the American *i For specimens of such statutes, see Pub. Acts Mich. 1897, No. 145; Comp. Laws Mich. 1897, §§ 5317-5323; Ballinger's Ann. Codes & St. Wash. § 5975; Rev. St. Tex. 1895, art. 3318; Laws S. D. 1893, c. 102, amending Civ. Code 1887, '§ 3686. 28 The question is discussed at some length, with analyses of the cases, in Beale, Innkeepers, §§ 261-265; Van Zile, Bailm. & Carr. §§ 379-383. See, also, the notes in 3 Ann. Cas. 626, and 12 Ann. Cas. 404. 2» Beale, Innkeepers, § 262, "where the possession of the guest is wrong- ful, and is known to the innkeeper to be so; and to this extent the doctrine [that the innkeeper has no lien on knowledge that the guest has no title to the goods] is undoubtedly correct." In Gump v. Showalter, 43 Pa. 507, the court denied the right of the innkeeper as to a statutory lien and right of sale on a horse stolen by the guest, but it did not appear that the innkeeper had notice of the theft. In Johnson v. Hill, 3 Stark (Eng.) 172, 3 B. C. L. Rep. 641, the innkeeper's lien was made to depend on "whether the defendant [innkeeper] knew, at the time when the horse was delivered into his custody, that P. [the guest] was not the owner of the property, but a mere wrongdoer." In Black v. Brennan, 5 Dana (Ky.) 311, the innkeeper was given a lien on a stolen horse, when he had. no knowledge of this fact. so ROBINS & CO. v. GRAY, [1895] 2 Q. B. (Eng.) 501, Dobie Cas. Bailments and Carriers, 164, a leading case on the whole subject ; Manning v. Hollenbeck, 27 Wis. 202 ; R. L. Polk & Co. v. Melenbacker, 136 Mich. 611, 99 N. W. 867. si This seems to follow from the application of the general principle of estoppel. See, also, R. D. Polk & Co. v. Melenbacker, 136 Mich. 611, 99 N. W. 867. sa ROBINS & CO. v. GRAY, [1895] 2 Q. B. (Eng.) 501, Dobie Cas. Bailments and Carriers, 164; Robinson v. Walter, 3 Bulst. 269; Snead v. Watkins, 1 0. B. N. S. 267 ; Gordon v. Selber, 25 Q. B. D. 491. § 100) THE INNKEEPER'S LIEN — ITS NATUKE AND EXTENT 287 courts, 83 hold that the innkeeper can claim his lie n o n wh atever goods are "brought to the inn by the guest, regardless of the ques- tion o f actual ownership f if the goods are honestly recei ved by the innkeep er on the strength of the innkeenin^Telation : and this, evea though the guest may have stolen the goods, provid ed, of course, t hat the innkeeper is ignorant of this- fact. 8 * ' This unusual rule is put on the ground that, since the ^ innkeeper is obliged to receive all persons, w ith the ir goods i _withoui inquiries as to the guest's title tojj he fronds, infe rring also an exceptional liability as to such goods, he should, as a compensation for the burden thus imposed on him, have a lien on'alTthe goods that come into his control in his character of innkeeper, as belonging to the guest, regardless of the question of the real ownership of the goods. The American cases, as indicated, have, in general, accepted the English rule, i n .the absence qf _statute. ! " > though individual judges have protested that the innkeeper should have no such lien on the goods of a third person merely because brought by the guest to as Black v. Brennan, 5 Dana (Ky.) 310; Grinnell v. Cook, 3 Hill (N. Y.) 485, 488, 38 Am. Dec. 663. si The English rule established by ROBINS & CO. v. GRAY, [1895] 2 Q. B. 501, Dobie Cas. Bailments and Carriers, 164 (when guest is not known by the innkeeper to be unlawfully in possession of the goods) gives the innkeeper his lien, even though he knows that the guest is not the owner of the goods. A number of the American cases giving the innkeeper a lien on the goods of another brought by the guest to the inn qualify the rule by requiring that the innkeeper (to have his lien) must have no notice of the ownership of such other person. Singer Mfg. Co. v. Miller, 52 Minn. 516, 518, 55 N. W. 56, 21 L. R. A. 229, 38 Am. St. Rep. 568; COOK v. KANE, 13 Or. 482, 11 Pac. • 226, 57 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 166; Covington v. Newberger, 99 N. C. 523, 6 S. E. 205. » B See Beale, Innkeepers, § 265. Under statutes the American courts have shown a decided tendency to limit the statutory lien, and to hold that it does not extend to the goods of third persons in the possession of the guest, even when the language of the statute seemed merely to be declaratory of the common law. WERTHEIMER-SWARTS SHOE CO. v. HOTEL STEVENS CO., 38 Wash. 409, 80 Pac. 563, 107 Am. St Rep. 864, 3 Ann. Cas. 625, Dobie Cas. Bailments and Carriers, 169; Torrey v. McClellan, 17 Tex. Civ. App. 371, 43 S. W. 64; McClain v. Williams, 11 S. D. 227, 76 N. W. 930, 49 L. R. A. 610, 74 Am. St. Rep. 791; WYCKOFF v. SOUTHERN HOTEL CO., 24 Mo. App. 382, Dobie Cas. Bailments and Carriers, 168. The language of the statute was so broad, "belonging to or under the control of their guests," that the statutory lien was held, in Brown Shoe Co. v. Hunt, 103 Iowa, 586, 72 N. W. 765, 39 L. R. A. 291, 64 Am. St. Rep. 198, to cover goods of a third person in the control and possession of the guest. See, also, Lurch v. Wilson, 62 Misc. Rep. 259, 114 N. Y. Supp. 789, awarding the statutory lien to the inn- keeper, when the innkeeper had no notice that the property was that of a third person until aftei the property had been put within the inn. 288 INNKEEPERS (Ch. 8 the inn." This protest certainly seems more in keeping with the analogies of our law, for there is something foreign to the spirit of our jurisprudence in the idea that a mere thief can create in stolen goods, as to which he has no interest whatsoever, a lien in favor of the innkeeper, which shall be paramount to the title of the rightful and innocent owner of the goods. Another answer to the English rule is that the innkeeper has a means of protecting himself, in that he can always demand his compensation in ad- vance. It is worthy of note, too, in the substantially similar case of the common carrier, no lien exists against the lawful owner, when the wrongdoer makes an unauthorized shipment of the goods." For What Charges An innkeeper's lien covers all proper charges for the guest's entertainment, including extras, such as wines furnished a guest, as well as the amounts due for board and lodging. 38 The lien is not a general one, as that term is technically used, though each article belonging to the guest is liable for the whole amount due. Thus, there is a lien on a guest's horse, not only for the charges incurred for the horse itself, but for the entertainment of the guest, as well. 39 The innkeeper, since his lien is not a general one, cannot hold the goods of the guest brought to the inn at a subsequent visit for unpaid charges incurred by the guest on a previous stay at the inn. 40 Boarding House Keepers This lien was limited at common law to the innkeeper, and did not exist in favor of the keeper of a boarding house.* 1 There are statutes, however, in most of the states, giving this lien to the «« Opinion of Thompson, J., in WYCKOFF v. SOUTHERN HOTEL CO., 24 Mo. App. 382, 390, 391, Dobie Cas. Bailments and Carriers, 168; dissenting opinion of Thayer, J., in COOK v. KANE, 13 Or. 482, page 491, 11 Pac 226, 57 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 166. In Domestic Sew- ing-Machine Co. v. Watters, 50 Ga. 573, it was held, in order that the inn- keeper may have a lien on the goods of a third person, that services must be performed about the specific article to which the lien attaches. « See post, p. 476. See, also, Fitch v. Newberry, 1 Doug. (Mich^ 1, 40 Am. Dec. 33 ; Clark v. Lowell & L. R. Co., 9 Gray (Mass.) 231. 8 8 Proctor v. Nicholson, 7 Car. & P. (Eng.) 67; Watson v. Cross, 2 Duv. (Ky.) 147. a» Mulliner v. Florence, L. R. 3 Q. B. Div. (Eng.) 484. *o Jones v. Thurloe, 8 Mod. (Eng.) 172. « Singer Mfg. Co. v. Miller, 52 Minn. 516, 55 N, W. 56, 21 L. R. A. 229, 88 Am? St. Rep. 568; Pollock v. Landis, 36 Iowa, 651; Hursh v. Byers, 29 Mo. 469 ; Nance v. O. K. Houck Piano Co. (Tenn.) 155 S. W. 1172. § 101) THE WAIVEB OF THE LIEN 289 boarding house keeper, thus placing him, in this respect, on an equality with the innkeeper. 42 When the keeper of an inn has in the inn both guests and boarders, the lien exists, in the absence of statute, only against the guests, 48 for as to the boarders the relation of the keeper of the inn is legally that of a boarding house keeper. SAME— SAME— SAME— THE WAIVER OF THE LIEN 101. The innkeeper may waive his lien by voluntarily parting with possession of the goods, or by any other conduct incon- sistent with the continuance of the lien. Waiver of the Lien The principles of law governing the waiver of the lien of the ordinary bailee for hire, which have already been discussed, 44 are also in general applicable to the lien of the innkeeper. Thus, as a lien exists only by virtue of possession, when an innkeeper per- mits his guest to take the goods away, the lien is gone. A sur- render of the possession of the goods by the innkeeper to the guest, save for a mere temporary purpose, 45 is an effective waiver of the lien ; 46 and, once waived, the lien is not revived by the innkeeper subsequently again securing possession of the goods. 4 ' But, where the innkeeper is induced to part with the possession of the goods through false and fraudulent representations made by the guest, he does not thereby waive his lien. 48 In such case, the innkeeper can reassert his lien by again assuming possession of the goods, subject, however (it would seem), to the intervening rights of any innocent third parties. Just as other common-law liens, that of the innkeeper may be waived by any conduct inconsistent with its continuance. There is no lien when credit 49 is extended to the guest for the charges ; while the lien is, of course, extinguished by payment, or even *2Barnett v. Walker, 39 Misc. Rep. 323, 79 N. Y. Supp. 859; Cady v. Mc- Dowell, 1 Lans. (N. Y.) 484; Cross v. Wilkins, 43 N. H. 332; Smith v. Colcord, 115 Mass. 70 ; Nance v. O. K. Houck Piano Co. (Tenn.) 155 S. W. 1172. *3 Singer Mfg. Co. v. Miller, 52 Minn. 516, 55 N. W. 56, 21 L. R. A. 229, 38 Am. St. Rep. 568. « Ante, p. 151. See, also, post, p. 478. « Allen v. Smith, 12 C. B. N. S. (Eng.) 638, 6 L. T. 459; Caldwell v. Tutt, 10 Lea (Tenn.) 258, 43 Am. Rep. 307. *6Danforth v. Pratt, 42 Me. 50; GrinneU v. Cook, 3 Hill (N. Y) 486, 38 Am. Dec. 663. *? Manning v Hollenbeck, 27 Wis. 202. *« Manning v. Hollenbeck, 27 Wis. 202. 4» Jones v. Thurloe, 8 Mod. (Eng.) 172. Dob.Bailm. — 19 290 . INNKEEPERS (Ch. 8 tender B0 of the amount of the compensation. The innkeeper does not lose his lien, however, by merely taking security 61 for the payment of the guest's bill, nor by levying an execution or attach- ment ™ on the goods covered by the lien. SAME— SAME— SAME— THE ENFORCEMENT OF THE LIEN 102. At common law, the innkeeper had by virtue of his lien no right to sell the goods, but this right is now very generally given by statute. Though the innkeeper could hold the goods under his lien until his proper charges were paid, the lien, like other common-law liens, conferred on him no right to sell the goods in order to make the lien effective. 08 Besides holding the goods, his only remedy, in the absence of statute, was to obtain from a court of equity an order to sell the goods by a proceeding in equity to fore- close the lien. 64 By statutes, however, the right to sell the goods under his lien is very generally given, either by statutes specially affecting the innkeeper or those applying to lienholders in gen- eral. 56 Any excess, over and above his compensation and the expenses of the sale, remaining in the innkeeper's hands is held in trust for the guest. SAME— THE LIABILITY OF THE INNKEEPER AS AN ORDINARY BAILEE 103. An innkeeper may under certain circumstances be an ordi- nary bailee of goods in his charge. His liability is that (1) Of an ordinary bailee for hire: (a) For goods of a guest kept for" show or sale. bo Gordon v. Cox, 7 Car. & P. (Eng.) 172. And see Allen v. Smith, 12 0. B. N. S. (Eng) 644, where it is said that an innkeeper, by demanding mord than is due, makes a tender unnecessary. Where an innkeeper owes his guest for labor more than she owes for board, he has no lien upon her trunk. Hanlin v. Walters, 3 Colo. App. 519, 34 Pac. 686. oi Angus v. McLachlan, L. R. 23 Ch. Div. (Eng.) 330. B2 Lambert v. Niklass, 45 W. Va. 527, 31 S. E. 951, 44 L. K. A. 561, 72 Am. St. Rep. 828. os Case v. Fogg, 46 Mo. 44; Fox v. McGregor, 11 Barb. (N. Y.) 41, 43; Jonea v. Pearle, 1 Strange (Eng.) 556. 0* Fox v. McGregor, 11 Barb. (N. Y.) 41, 43; Black v. Brennan, 5 Dana (Ky.) 310. oo l Stimson, Am. Statute Law, § 4393. See, also, Brooks v. Harrison, 41 Conn. 184 ; Coates v. Acheson, 23 Mo. App. 255. § 103) LIABILITY OF INNKEEPEB AS AN OEDINART BAILEE 291 (b) For goods held under his lien for charges. (c) For goods of boarders. (2) Of a gratuitous bailee : (a) For goods left at the inn for an unreasonable time by a departing guest. (b) For goods deposited by one not a guest, to be kept without compensation. In General An innkeeper may be an ordinary bailee of goods, and liable only as such, without being subject to the exceptional liability of an innkeeper as such. This is generally the case whenever goods in his possession are not being kept by him in his technical inn- keeping relation. His rights and liabilities are then measured by the rules applicable to the different classes of ordinary bailments. The cases most frequently arising in this connection have been enumerated in the black letter text. As an Ordinary Bailee for Hire As to goods kept by the guest for show or sale, 68 as to goods retained by the keeper of the inn under his lien, 67 and as to the goods of those who reside at the inn as boarders, rather than as guests, 68 it will readily be seen that the keeper of the inn is not «« Scheffer v. Corson, 5 S. D. 233, 58 N. W. 555 ; Williams v. Norvell- Shapleigh Hardware Co., 29 Okl. 331, 116 Pac. 786, 35 L. E. A. (N. S ) 350, Ann. Cas. 1913A, 448; Fisher v. Kelsey, 121 V. S. 383, 7 Sup. Ct. 929, 30 L. Ed. 930; Myers v. Cottrill, 5 Biss. 465, Fed. Cas. No. 9,985; Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244 ; Needles v. Howard, 1 B. D. Smith, (N. Y.) 54, 61; Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762; Neal v. Wil- cox, 49 N. C. 146, 67 Am. Dec. 266. " Murray v. Marshall, 9 Colo. 482, 13 Pae. 589, 59 Am. Rep. 152; Giles v. Fauntleroy, 13 Md. 126 ; Murray v. Clarke, 2 Daly (N. Y.) 102 ; Angus v. Mac- lachlan, 23 Ch. D. (Eng.) 330, 52 L. J. Ch. 587. BSHafC v. Adams, 6 Ariz. 395, 59 Pac. Ill; Hutchinson v. Donovan, 76 Mo. App. 391; LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148 ; Lawrence v. Howard, 1 Utah, 143. And see Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244. So, as to person receiving entertainment at a ball. Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762. An hotel keeper in whose safe a regular boarder deposits money for safe-keeping is, at most, a bailee for hire, and is not liable therefor where his night clerk steals the money from the safe, in the absence of any proof of want of ordinary care in employing him. Taylor v. Downey, 104 Mich. 532, 62 N. W. 716, 29 L. R. A. 92, 53 Am. St. Rep. 472. An innkeeper is not liable for loss of boarder's baggage and other valuables by fire, not shown to have been caused by the negligence of the innkeeper or his servants. Moore v. Long Beach Develop- ment Co., 87 Cal. 483, 26 Pac. 92, 22 Am. St. Rep. 265. He is not responsible, except as an ordinary bailee for hire, for the safe-keeping of a horse left in his stable for the night by one who is neither a lodger nor a guest, the stable having been consumed by fire, without negligence on his part. Ingallsbee v. 292 INNKEEPERS (Ch. 8 technically an innkeeper. But in all these cases the innkeeper receives a compensation for his custody or control. The standard by which his liability is measured is therefore that of an ordinary bailee for hire, and, in such cases, the keeper of the inn owes merely the duty of ordinary care and is responsible for loss or in- jury only for his negligence, which is here his failure to live up to his duty by exercising less than that degree of diligence./ 9 As a Gratuitous Bailee When the custody of the keeper of the inn is outside of his technical relation as innkeeper, and when he receives no recom- pense, either express or implied, he is in the position of a mere gratuitous bailee, and as such bound to use only slight care. 80 The most important class of these cases is that of a guest leaving goods, with the innkeeper for more than a reasonable length of time after his departure from the inn. Until the lapse of such reasonable time, as we shall see, the exceptional responsibility of the innkeeper continues ; 61 but, after the expiration of such time, the keeper of the inn is a mere gratuitous bailee and liable ac- cordingly. 62 The innkeeper is also liable merely as a gratuitous bailee when goods are left in his charge by one who does not be- come a guest at all, and when there is no agreement, either ex- press or implied, that the innkeeper shall receive any compensation for the care of such goods. 63 Wood, 33 N. T. 577, 88 Am. Dec. 409. An innkeeper is not an insurer of the safety of baggage delivered to him to be held as a pledge for money loaned, or for accommodation, by a guest, after he has severed his personal connec- tion with the hotel by surrendering his room and paying his bill. Wear v. Gleason, 52 Ark. 364, 12 S. W. 756, 20 Am. St. Rep. 186. "so See cases cited in notes 56-58. eo Doorman v. Jenkins, 2 A. & E. (Eng.) 256, 4 L. J. K. B. 29. si Post, § 104. 82 Johnson v. Reynolds, 3 Kan. 257 ; Miller v. Peeples, 60 Miss. 819, 45 Am. Rep. 423; O'Brien v. Vaill, 22 Fla. 627, 1 South. 137, 1 Am. St Rep. 219; Whitemore v. Haroldson, 2 Lea (Tenn.) 312. But see Murray v. Marshall, 9 Colo. 482, 13 Pac. 589, 59 Am. Rep. 152 ; Adams v. Clem, 41 Ga. 65, 5 Am. Rep. 524 ; George v. Depierris, 17 Misc. Rep. 400, 39 N. Y. Supp. 1082. 01 course, if there is a compensation, express or implied, for such keeping of the goods by the keeper of the inn, he is a bailee for hire, and as such bound to exercise ordinary care. os Wiser v. Chesley, 53 Mo. 547; Stewart v. Head, 70 Ga. 449; Lawrence t. Howard, 1 Utah, 142; Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. B. A. (N. S.) 1085. It is usually held that a clerk at a hotel has no authority as such to receive deposits, so as to impose the liability of a gratuitous bailee on the innkeeper. Booth v. Litchfield, 201 N. T. 466, 94 N. E. 1078, 35 L R. A. (N. S.) 710; Oxford Hotel Co. v. Lind, 47 Colo. 57, 107 Pac. 222, 28 L. R. A. (N. S.) 495, and note, 18 Ann. Cas. 983. § 104) THE TERMINATION OF THE RELATION 293 THE TERMINATION OF THE RELATION 104. The relation of innkeeper and guest may be terminated — (a) By the innkeeper for the guest's misconduct or default in payment of reasonable charges for his entertainment. (b) By the guest at any time, by signifying an intention to do so. When the relation is terminated, the innkeeper's exceptional liability for the guest's goods is at an end, except that it continues for a reasonable time thereafter to enable the guest to remove his goods. Termination of the Relation An innkeeper has no right to terminate his relation as such to his guest except for misconduct on the part of the guest, 64 or for the guest's failure to pay the innkeeper his reasonable charg- es. 65 It will thus be seen that the innkeeper's obligation is not limited to receiving guests, but he must also continue to keep them until the guest forfeits his right to remain such either by misconduct or default in paying the innkeeper. Such misconduct must in general be of a nature that would have justified the innkeeper in originally refusing to receive the guest. Thus the innkeeper can terminate the relation as to a guest who is drunk and disorderly and eject the latter from the inn. 66 The innkeeper, too, would be justified in sending from the inn one who becomes affected with a contagious disease, if this can be safely and properly done. 67 This is not strictly speaking misconduct, but the innkeeper finds his justification in the duty of protection which he owes to all his guests. The right of the guest to con- tinue as such is, of course, conditioned on his fulfilling his duty of paying the innkeeper's reasonable compensation. For any de- fault, therefore, in this respect, the innkeeper can immediately ter- " Commonwealth v. Mitchel, 2 Pars. Eq. Cas. (Pa.) 431; Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Howell v. Jackson, 6 Car. & P. (Eng.) 723; Moriarty v. Brooks, Id. 684; State v. Steele, 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516, 19 Am. St. Rep. 573; The Six Carpenters' Case, 8 Coke (Eng.) 290. 66 Lawrence v. Howard, 1 Utah, 142. See Schouler, Bailm. (2d Ed.) § 326; Doyle v. Walker, 26 Dp. Can. (Canada) Q. B. 502. es McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699. e' Levy v. Corey, 1 City Ct. R. Supp. (N. T.) 57; McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699. Such removal must be in an appropriate and becoming manner, that does not endanger the life or health of the sick guest. 294 INNKEEPERS (Ql. 8 minate the relation. 98 When the guest ceases to be a transient, he necessarily ceases to be a guest, and in such case the innkeeper need not keep the guest, just as he would not be bound to receive him as a guest. 69 The guest can terminate the relation whenever he chooses. 70 Of course, if in so doing he breaks a contract with the innkeeper, he would thereby become liable to the innkeeper for any damages flow- ing from the breach. 71 But if he does not notify the innkeeper of his intention to terminate the relation, he continues liable for any reasonable charges which accrue. 72 The mere temporary absence, however, of a guest from the inn does not terminate the relation of innkeeper and guest. 73 But the relation is terminated when the guest pays his bill, and his name is stricken from the register of guests, thus freeing him from liability as a guest, and he can- not thereafter, and while he is not a guest, claim the rights of one. 7 * The expectation to become a guest at a later date does not continue the relation, 75 terminated at his instance, and for his advantage, by settling his account for entertainment. An inn- keeper is chargeable as such because of the profit derived from the entertainment of the guest ; so that the right to charge is ordi- narily the criterion of the innkeeper's liability. Therefore, when the liability of the guest to be charged as such ceases, his claim on » 8 See cases cited in note 65. so Lamond v. Richard, [1897] 1 Q. B. (Eng.) 541, 66 L. J. Q. B. 315, 76 h. T. 141 ; Whiting v. Mills, 7 Up. Can. Q. B. (Canada) 450. to O'Brien v. Vaill, 22 Fla. 627, 1 South. 137, 1 Am. St. Rep. 219; Glenn v. Jackson, 93 Ala. 342, 9 South. 259, 12 L.. R. A. 382 ; Hays v. Turner, 23 Iowa, 214. 7i Sonneborn v. Steinan (Sup.) 85 N. Y. Supp. 334 (this was a case in- volving a boarding house keeper, but the same principle is equally applicable to innkeepers). This is merely saying that one may sue for the breach of a valid contract and recover compensatory damages. 72 Miller v. Peeples, 60 Miss. 819, 45 Am. Bep. 423. 7 3 Towson v. Havre de Grace Bank, 6 Har. & J. (Md.) 47, 14 Am. Dec. 254; Whitemore v. Haroldson, 2 Lea (Tenn.) 312; McDonald v. Edgerton, 5 Barb. (N. Y.) 560; Allen v. Smith, 12 C. B. N. S. (Eng.) 638. One does not cease to be a guest of an innkeeper by going out to dine or lodge with a friend, or by any other temporary absence. Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. Where a person takes a room at an inn and leaves his effects there, and makes the inn his principal abiding place, he does not cease to be a guest merely because he is occasionally absent from the inn and sometimes takes his meals elsewhere. McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Id., 28 Vt. 387, 67 Am. Dec. 720. 7* Miller v. Peeples, 60 Miss. 819, 45 Am. Rep. 423; O'Brien v. Vaill, 22 Fla. 627, 1 South. 137, 1 Am. St. Rep. 219. 75 Miller v. Peeples, 60 Miss. 819, 45 Am. Rep. 423; Glenn v. Jackson, 93 Ala. 342, 9 South. 259, 12 L. R. A. 382. § 104) THE TERMINATION OF THE RELATION 295 the innkeeper as such expires, subject only to the guest's right (as indicated in the next paragraph) to hold the innkeeper responsible as such for the baggage of the guest for such time as may be rea- sonable to enable the guest to effect its removal. What consti- tutes such a reasonable time is a question to be determined by the circumstances of each particular case. 76 Innkeeper's Liability for the Guest's Goods after the Innkeeping Re- lation is Terminated The innkeeper's exceptional liability for the baggage of his guest does not cease immediately on the latter's leaving the inn, but this continues until the guest has had a reasonable time to effect a re- moval of the baggage. 77 This is in accord with the rule obtaining in the case of the common carrier and the passenger. 78 Here, too, as there, a reasonable time is usually a short time, for the guest (or ex-guest) as well as the passenger must act with suitable dispatch. 79 After the lapse of such reasonable time, the innkeeper becomes (as we have just seen) a mere gratuitous bailee and lia- ble only as such. But if a guest, intending to leave the inn, in- trusts his baggage to the porter of the inn, whose duty it is to de- liver the baggage at the depot, the relationship of innkeeper and guest, as to such baggage, continues until its delivery at the designated place. 80 7« Miller v. Peeples, 60 Miss. 819, 45 Am. Rep. 423; Maxwell v. Gerard, 84 Hun, 537, 32 N. Y. Supp. 849. By leaving a horse with an innkeeper after the guest has departed, the relation of innkeeper and guest is not continued so as to render the former liable as such for a sum of money left with him by the latter while stopping at his house. McDaniels v. Robinson, 28 Vt. 387, 67 Am. Dec. 720. " Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. St. Rep. 444; Murray v. Marshall, 9 Colo. 482, 13 Pac. 589, 59 Am. Rep. 152; Kaplan v. Titus, 140 App. Div. 416, 125 N. Y. Supp. 397 ; Murray v. Clarke, 2 Daly (N, T.) 102; Adams v. Clem, 41 Ga. 65, 5 Am. Rep. 524. "Post, p. 639. ™ See Wharton, Negligence, § 687; Murray v. Marshall, 9 Colo. 482, 13 Pac. 589, 59 Am. Rep. 152. so Glenn v. Jackson, 93 Ala. 342, 9 South. 259, 12 L. R. A. 382 ; Sasseen v. Clark, 37 Ga. 242; Dickenson v. Winchester, 4 Cush. (Mass.) 114, 50 Am. Dec. 760. And so, where baggage is taken to the wrong boat by the inn- keeper's servant, and so lost. Giles v. Fauntleroy, 13 Md. 126. PART TWO CARRIERS CHAPTER IX PRIVATE AND COMMON CARRIERS OP GOODS 105. Carriers. 106. Private Carriers of Goods. 107. Common Carriers of Goods. CARRIERS 105. The carrier, by far the moslj important of bailees, is one who undertakes to transport goods or persons from one place to another. From modest beginnings, the carrier has experienced a tremen- dous development, until no other bailee can now compare with him in practical importance. Improved methods of transportation, making the world in a sense a single market, have been largely responsible, along with other civilizing factors, in making the car- rier's position so lofty and so dignified. Practical importance and commercial necessity, then, would alone justify an extended and detailed discussion of the legal incidents that attend the relation existing between the carrier and those with whom he deal's. The carrier is defined simply as one who undertakes to transport either goods or persons, or both, from place to place. 1 More sim- ply still, the carrier is one who undertakes to carry. Carriers have been variously classified according to many grounds of division. Thus carriers have been independently divided 2 into (a) carriers by land and carriers by water, according to the element in which their business is done; (b) carriers for hire and carriers without hire, according to the presence or absence of a compensation; (c) i Black, Law Diet. p. 172 ; Van Zile, Bailm. & Carr. § 392. "Any person who carries goods or passengers, for hire or gratuitously, by land or water, is a carrier." 4 Halsbury, Laws of England, p. 2. 2 The comparative importance of, and the distinctive legal incidents de- pending upon, these classifications, will appear as the subject is further de- veloped. (296) § JL06) PRIVATE 0ABEIEB8 OF GOODS 297 initial carriers and connecting carriers, according to whether they initiate or merely continue the transportation; (d) private carriers and common carriers, according to the private or public nature of their calling; and (e) carriers of goods and carriers of passengers, according to what they carry. Of these classifications, we are chiefly concerned with the last two. Carriers by land and carriers by water are governed in gen- eral by the same principles of law, though differences in the nature of their employment may be the occasion of practical differences in the application of these rules to concrete cases. 8 As all common carriers of goods are carriers for hire, and as private carriers for hire are very rare, resort is not frequently had to the classification based on the reward or its absence. Whether the carrier is an initial or connecting carrier is important in practice chiefly in determining which may be sued when loss or damage is suffered. The distinction between private and common carriers is highly important, though nearly all modern transportation is in the hands of the common carrier, to whom, practically, the whole treatment of carriers is devoted. Carriers of goods and carriers of passen- gers differ so widely that this analysis is the basis for the division of the treatment of the whole subject and the two are treated separately. Carriers of passengers are not bailees at all, but, for convenience sake, they are discussed in detail after carriers of goods. PRIVATE CARRIERS OF GOODS 106. The private carrier is one who, without engaging in such busi- ness as a public employment, undertakes by special con- tract to transport goods in particular instances from one place to another.* » Though, as is said here, the general principles of the law of carriers apply equally, whether the transportation is by land or water, there are many unique rules governing the transportation of goods and passengers by water. These rules form the body of law known as admiralty. The admiralty juris- diction of the federal government has resulted in the regulation of carriers by sea in ways that are unheard of as to carriers by land. The bulk of admiralty litigation is tried in the United States District Court. * 1 Hutch. Carr. § 35. And see Pennewill v. Cullen, 5 Har. (Del.) 238. See, also, 4 Halsbury, Laws of England, p. 4; Allen v. Sackridcr, 37 N. T. 341. One who is employed to tear down a house for another and deliver the brick and lumber at another place is simply a private carrier for hire. McBurnie v. Stelsly, 97 S. W. 42, 29 Ky. Law Rep. 1191. There are two kinds of car- riers, a common carrier and a private carrier; a private carrier being one who acts in a particular case for hire or reward. O'ROURKE v. BATES, 73 Misc. Rep. 414, 133 N. I. Supp. 392, Dobie Cas. Bailments and Carriers, 172. 298 PRIVATE AND COMMON CARRIERS OF GOODS (Ch.9 Private and Common Carriers of Goods The private carrier of goods bears substantially the same relation to the common carrier of goods that the boarding house keeper bears to the innkeeper. The nature of the business carried on by the private and common carrier may be the same ; but the former pursues it as a private, the latter as a public, calling. The private carrier, unlike the common carrier, does not hold himself out as ready and willing to serve indifferently all who apply. He is a carrier who carries, not by virtue of a public profession, but accord- ing to the special contracts which he makes in individual cases. He is therefore not obliged by law to accept and transport the goods of whatever persons may apply. He may pick and choose as to those with whom he will do business, and arbitrarily in specific instances may refuse to carry the goods which are offered B to him. Though formerly numerous, private carriers of goods are now comparatively rare. Private Carriers of Goods are Ordinary Bailees The private carrier of goods, making no public profession, is an ordinary bailee, and subject to the same rules governing other ordinary bailees. 6 He is vested with no exceptional rights and in- curs no extraordinary responsibilities. When the private carrier transports goods without a contem- plated reward, the bailment resulting from such gratuitous carriage is simply a mandatum. 7 The rights and duties of the bailor and the private carrier as bailee are governed by the rules applicable in general to bailments of that class. In chapter III, "Bailments for the Bailor's Sole Benefit," these rights and duties have been already sufficiently considered. Since a compensation, as we shall see, 8 is one of the essential elements in the relation of common car- rier, the mere fact alone that the carriage of the goods is gratuitous necessarily stamps the carrier, as to that particular transaction, as a private carrier. When there is an intended compensation for the carriage of the goods by the private carrier, the bailment is an ordinary one of the hiring of services about a chattel, or, as this particular bailment is called in the Roman terminology, "locatio operis mercium vehen- b Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353. e COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1 ; Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Rep. 435. i The private carrier being then a mere mandatary, carrying without a reward, is liable, just as other bailees in bailments for the bailor's sole ben- efit, only for his failure to exercise even slight care. Beauchamp v. Powley, 1 Moody & R. (Eng.) 38. « Post, § 107. § 106) PRIVATE OAKBIEE8 OF GOODS 299 darum." The principles discussed in chapter VI, "Bailments for Mutual Benefit — Hired Services About Things," are therefore ap- plicable here. Liability for Negligence As in other cases of bailments for hired services, a private car- rier for hire must exercise ordinary diligence in the performance of his undertaking. 9 By ordinary care or diligence is again meant such care or diligence as the man of ordinary prudence is accustom- ed to exercise in the conduct of his own affairs under similar cir- cumstances. 10 Ordinary care is here, as elsewhere, a purely rela- tive term, to be judged according to the peculiar circumstances of each individual case. Unlike the common carrier, the private carrier of goods for hire is not an insurer, unless he has made himself so by special con- tract, 11 or by his positive wrong; and he is therefore, like other ordinary bailees, liable for loss of, or damage to, the goods only when it is due to his negligence. 12 Though there is conflict on the point, it seems that, though this privilege is denied to the common carrier, the private carrier of goods, like other ordinary bailees, may by special contract stipu- late against liability for his negligence, but not against his active wrong doing or fraud. 13 The private carrier of goods may by con- • 1 Hutch. Carr. § 37; Story, Bailm, § 399; Ang. Carr. § 47; Ames v. Belden, 17 Barb. (N. Y.) 513, 517; Samms v. Stewart, 20 Ohio, 70, 73, 55 Am. Dec. 445; Wyld v. Pickford, 8 Mees. & W. (Eng.) 443; Jaminet v. American Storage & Moving Co., 109 Mo. App. 257, 84 S. W. 128; Central of Georgia R. Co. v. Glascock & Warfleld, 117 Ga. 938, 43 S. B. 981. io United States v. Power, 6 Mont. 271, 273, 12 Pac. 639. ii Wells v. Steam Nav. Co., 2 N. Y. 204. 12 White v. Bascom, 28 Vt. 268; Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Kep. 435; Pennewill v. Cullen, 5 Har. (Del.) 238; Forsythe v. Walker, 9 Pa. 148; Baird v. Daly, 57 N. Y. 236, 246, 15 Am. Kep. 488; Bush v. Miller, 13 Barb. (N. Y.) 481, 488; Stannard v. Prince, 64 N. Y. 300; Roberts v. Turner, 12 Johns. (N. Y.) 232, 7 Am. Dec. 311; Piatt v. Hibbard, 7 Cow. (N. Y.) 497; Brown v. Denison, 2 Wend. (N. Y.) 593; Holtzclaw v. Duff, 27 Mo. 392; Beck v. Evans, 16 East (Eng.) 244. is Cleveland, C, C. & St. L. R, Co. v. Henry, 170 Ind. 94, 83 N. E. 710; Wells v. Steam Nav. Co., 2 N. Y. 204; Alexander v. Greene, 3 Hill (N. Y.) 9. See ante, p. 19. In 1 Hutch. Carr. § 40, it is said: "Negligence being in the nature of an omission simply of that degree of care which, under all the cir- cumstances, is the bailee's duty, without any criminality of purpose, and being, at least within a certain degree, entirely consistent with good faith, the pri- vate carrier may, by contract with his employer, exonerate himself from liability on account of his inattention or want of diligence or skill in the execution of the trust. He may, stipulate that he shall In no event be liable, except for fraud or its equivalent." 300 PRIVATE AND COMMON CARRIERS OF GOODS (Ch. 9 tract increase his responsibility indefinitely. 14 Such private car j rier, however, cannot by contract make himself a common carrier. He may assume the liability of the common carrier, but he can- not by mere special agreement change the nature of his relation to the public. In spite of contracts enlarging his liability, the private carrier of goods remains a private carrier and should be sued in that character. 16 Lien '' Though authority on the subject is scant, the private carrier for hire should, on principle at least, have a lien on the goods carried for his compensation. 16 Whatever may have been the early rule on the subject, when only those pursuing a public calling and later those who conferred additional value in the goods had a lien, ac- cording to the modern doctrine, when the lien is given generally to bailees for hire, no satisfactory reason can be advanced for denying it to the private carrier for hire. .That there are expressions in the books denying him the lien, however, cannot be gainsaid. 17 COMMON CARRIERS OF GOODS 107. The common carrier of goods is one who holds himself out, in the exercise of a public calling, to carry goods, for hire, for whomsoever may employ him. jFrom this definition, it appears that the essential characteristics of the common carrier of goods are : (a) He must carry as a public employment by virtue of his general holding out. (b) He must carry for hire, and not gratuitously. « Wells v. Steam Nav. Co., 2 N. Y. 204 ; Robinson v. Dunmore, 2 Bos. & P. (Eng.) 416. ib 1 Hutch. Oarr. § 45; Robinson v. Dunmore, 2 Bos. & P. (Eng.) 416; Kim- ball v. Rutland & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567. i6 l Hutch. Carr. § 46. "Upon general principles, there seems to be no reason why a private carrier should not have a lien for performing services similar to those rendered by a public carrier." 1 Jones, Liens, § 276. Even if it be conceded that no such lien existed at common law, the private car- rier might well claim a lien by virtue of general provisions in modern stat- utes favoring and extending the liens of bailees in general. " See Fuller v. Bradley, 25 Pa. 120, though it is open to very serious ques- tion whether,"in this case, the so-called carrier was not a mere servant, hired for his services and the use of his boat, and not a bailee at all. In Riddle, Dean & Co. v. New York, L. E. & W. R. Co., 1 Interst Com. Comm'n R. 594, 604, this language was used: "The compensation of the common carrier is assured to him by a lien upon the goods, a right which is not enjoyed by a private carrier." In Thompson v. New York Storage Co., 97 Mo. App. 135, 70 S. W. 938, the court said: "We have searched the books and found no case allowing a lien to a private carrier." See, also, Van Zile, Bailm. & Carr. I 404. § 107) COMMON OABKIEBS OF GOODS 301 As the result of his public profession, the law imposes on him, as as a legal duty, that : (c) He must carry, with limitations subsequently to be dis- cussed, for all those who choose to employ him, and is liable in an action for his refusal thus to carry. Public Employment In an English case, 18 decided in the reign of Queen Anne, a common carrier of goods was said to be "any man undertaking, for hire, to carry the goods of all persons indifferently." The most commonly accepted judicial definition, in this country, is that of Parker, C. J., in Dwight v. Brewster, 18 "One who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place." In another English case 20 it was said : "The criterion is whether he carries for particular persons only, or whether he carries for every one. If a man hold himself out to do it for every one who asks him, he is a common carrier ; but if he does not do it for every one, but carries for you or me only, that is a matter of special contract." The same underlying idea is found in all of these cases. Whether one is a common or private carrier is to be tested primarily by his holding out. If he professes to serve indifferently all who choose to employ him, then he is a common carrier. 21 In the absence of is Gisbourn v. Hurst, 1 Salk. (Eng.) 249. i» 1 Pick. (Mass.) 50, 53, 11 Am. Dec. 133. 20 Ingate v. Christie, 3 Car. & K. 61. Other English cases to the same ef- fect are: COGGS v. BERNARD, 2 Ld. Raym. 909, 1 Smith, Lead. Cas. Eq. 283, and notes, Dobie Cas. Bailments and Carriers, 1; Lane v. Cotton, 1 Ld. Raym. 646, 651; Forward v. Pittard, 1 Term R. 27; Nugent v. Smith, 1 C. P. Div. 19; Palmer v. Grand Junction Ry. Co., 4 Mees. & W. 749; Riley v. Home, 5 Bing. 217, 220; Benett v. Peninsular & O. Steamboat Co., 6 C. B. 775. 2i Fish v. Clark, 2 Lans. (N. Y.) 176, 49 N. Y. 122; Allen v. Sackrider, 37 N. Y. 341; Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Orange County Bank v. Brown, 3 Wend. (N. Y.) 158, 161; Satterlee v. Groat, 1 Wend. (N. Y.) 272; Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639; Samms v. Stewart, 20 Ohio, 70, 55 Am. Dec. 445 ; Harrison v. Roy, 39 Miss. 396 ; Mershon v. Hobensack, 22 N. J. Law, 372; Verner t. Sweitzer, 32 Pa. 208; McClures v. Hammond, 1 Bay (S. C.) 99, 1 Am. Dec. 598 ; The Dan (D. C.) 40 Fed. 691 ; Doty v. Strong, 1 Pin. (Wis.) 313, 40 Am. Dec. 773; Honeyman v. Oregon & C. R. Co., 13 Or. 352, 10 Pac. 628, 57 Am. Rep. 20; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 ; Caye v. Pool's Assignee, 108 Ky. 124, 55 S. W. 887, 49 L. R. A. 251, 94 Am. St. Rep. 348; Hahl v. Laux, 42 Tex. Civ. App. 182, 93 S. W. 1080; W. C. Agee & Co. v. Louisville & N. R. Co., 142 Ala. 344, 37 South. 680; United States v. Ramsey, 197 Fed. 144, 116 C. C. A. 568, 42 L. R. A. (N. S.) 1031; Kettenhofen v. Globe Transfer & Storage Co., 70 Wash. 645, 127 Pac. 295. 302 PRIVATE AND COMMON CARRIERS OF GOODS (Ch. 9 such a profession, his undertaking is not a public one, and as a private carrier he serves such employer by virtue of a special con- tract, into which he, of his own choice, voluntarily entered. As has been indicated, the common and private carrier of goods, in the field of transportation, correspond, respectively, to the innkeeper and boarding house keeper, in the field of furnishing entertainment. Indeed, the common carrier-innkeeper and private carrier-boards ing house keeper analogy is quite a close one. The same consider- ations as those already discussed, of what express declarations, what course of dealing, what conduct, will constitute such a public holding out as to render one an innkeeper, 22 are equally applicable, mutatis mutandis, in working out the question of who is, or is not, a common carrier and responsible accordingly. Like the innkeeper, the common carrier of goods need not be en- gaged in the business of transportation either continuously or exclusively. 23 He may profess (though this is unusual) to serve 22 Ante, § 90. Just as the innkeeper need not own the house in which the inn is conducted, to constitute one a common carrier, it is not essential that the person or corporation undertaking such service own the means of transporta- tion. Blakiston v. Davies, Turner & Co., 42 Pa. Super. Ct. 390 ; J. H. Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 4 L. R. A. (N. S.) 1060. 23 The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41; Dwight v. Brewster, 1 Pick. (Mass.) 50, 53, 11 Am. Dec. 133. "It is true that common carriers under- take generally, and not as a casual occupation, and for all people indifferently ; but, in order to make them such, it is not necessary that this should be their exclusive business, or that they should be continuously or regularly employed in it. They may combine it with another and several avocations, and yet be common carriers, subject to the extraordinary liabilities which have been imposed upon them in consequence of the public nature of their employment." Moss v. Bettis, 4 Heisk. (Tenn.) 661, 13 Am. Rep. 1. All persons who transport goods from place to place for hire, for such persons as see fit to employ them, whether usually or occasionally, whether as a principal, or an incidental and subordinate, occupation, are common carriers, and incur all their responsibili- ties. Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639. "The distinctive characteristic of a common carrier is that he transports goods for hire for the public generally, and it is immaterial whether this is his usual or occasional occupation, his principal or subordinate pursuit * * * There are no grounds, in reason, why the occasional carrier, who, periodically, in every recurring year, abandons his other pursuits, and assumes that of trans- porting goods for the public, should be exempted from any of the risks in- curred by those who make the carrying business their constant or principal occupation. For the time being, he shares all the advantages arising from the business, and, as the extraordinary responsibilities of a common carrier are imposed by the policy, and not the justice, of the law, this policy should be uniform in its operation, imparting equal benefits, and inflicting the like burdens upon all who assume the capacity of public carriers, whether tem- porarily or permanently, periodically or continuously." Id. § 107) COMMON CAKKIERS OF GOODS 303 the public only during certain months or at certain seasons of the year, and hence be a common carrier only during such months or seasons. Thus a farmer may hold himself out as willing to carry goods for the public only at certain seasons of the year, as when his crops are laid by. He would thus be a common carrier only dur- ing such seasons, and if, during another season, he undertook to carry the goods of another merely in that particular instance, he would be, as to that specific undertaking, a private, and not a com- mon, carrier of goods. When the carrier of goods for hire professes to serve the public indifferently, he is none the less a common carrier, though he may be making his first trip, 24 or though the termini between which he carries are not definitely fixed, 26 or though he does not make regular trips. 26 Again, one carrying goods for hire under a public holding out cannot change his character, or evade his responsibility, as a common carrier merely by assuming some other name, such as "forwarder," " or "dispatch company." 28 It is the holding out that is determinative of the nature of the relation, and any name assum- ed can at best be merely evidential in showing what was the na- ture of such holding out. 20 Anomalous Doctrine of Pennsylvania and Tennessee This test has received the very general approval, but not the uni- versal assent, of the courts. A few cases., but not many, have held one a common carrier of goods in the absence of a holding out to serve the public. The leading case holding this view is unquestion- ably Gordon v. Hutchinson, 80 in which the opinion was written by a* Fuller v. Bradley, 25 Pa. 120 ; Steele v. McTyer's Adm'r, 31 Ala. 667, 70 Am. Dec. 516. 2 5Tuckerman v. Stephens & O. Transp. Co., 32 N. J. Law, 320; Farley v. La vary, 107 Ky. 523, 54 S. W. 840, 21 Ky. Law Rep. 1252, 47 L. R. A. 383; Liver Alkali Co. v. Johnson, L. R. 7 Exch. (Eng.) 367. 2« Pennewill v. Cullen, 5 Har. (Del.) 238. 27 Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed. 872; South- ern Exp. Co. v. McVeigh, 20 Grat. (Va.) 264 ; Lee v. Fidelity Storage & Trans- fer Co., 51 Wash. 208, 98 Pac. 658. An alleged forwarding agent who re- ceives goods for transit, issues bills of lading, and makes contracts in its own name with a railroad company for carriage, is, as to a person with whom it contracts for the delivery of goods, a common carrier, and liable as such. Ingram v. American Forwarding Co., 162 111. App. 476. . 28 Stewart v. Merchants' Despatch Transp. Co., 47 Iowa, 229, 29 Am. Rep. 476; Merchants' Despatch Transp. Co. v. Joesting, 89 111. 152; Merchants' Dispatch & Transp. Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757. as J. H. Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 4 L. R. A. (N. S.) 1060; Read v. Spalding, 5 Bosw. (N. T.) 395; Christenson v. American Exp. Co., 15 Minn. 270 (Gil. 208), 2 Am. Rep. 122. so 1 Watts & S. (Pa.) 285, 37 Am. Dec. 464. 304 PRIVATE AND COMMON CARRIERS OP GOODS (Ch. 9 the brilliant, but sometimes erratic, Chief Justice Gibson. The same doctrine has been laid down in Tennessee, 81 though there lim- ited to transportation by river. This unique repudiation of the public profession test, however, seems to be limited, happily, to these two states. The Carriage Must be for Hire To render one a common carrier, it is essential that the carriage should have been undertaken for a valuable consideration. 82 Where no consideration is intended in a particular case for the carriage of goods, the carrier, though he may be regularly engaged in the business of carrying goods for hire for the public generally, is not, as to that particular shipment, a common carrier. No carrier pro- fesses to serve all who apply without compensation, and the ex- traordinary responsibility imposed by law on the common carrier of goods always contemplates a reward. Compensation, as an es- sential element, is therefore found in all definitions of the common carrier of goods. If the element of compensation is lacking, then, as we have seen, 83 the carrier, necessarily a private one, is a bailee in an ordinary mandatum, and his rights and responsibilities are work- ed out accordingly. The compensation, referred to as necessary to make one a com- mon carrier of goods, may be either direct or indirect, and either paid or promised, expressly or impliedly. As in other cases, the in- tention of the parties governs, as gathered from the surrounding facts and circumstances. If the carriage is incident .to some other service, for which compensation is paid or to be paid, no separate or special added compensation is necessary. Thus, where the car- rier received grain to be carried for a compensation, and agreed to return the empty sacks without additional charge, he was neverthe- less held to be a common carrier even as to the empty sacks. 34 si Moss v. Bettis, 4 Heisk. (Tenn.) 661, 13 Am. Rep. 1; Craig v. Childress, Peck (Tenn.) 270, 14 Am. Dec. 751 ; Johnson v. Friar, 4 Yerg. (Tenn.) 48, 26 Am. Dec. 215 ; Gordon v. Buchanan, 5 Terg. (Tenn.) 71 ; Turney v. Wilson, 7 yerg. (Tenn.) 340, 27 Am. Dec. 515. These cases are commented on in 1 Hutch. Carr. §§ 52, 53. 8 2 Littlejohn v. Jones, 2 McMul. (S. O.) 365, 366, 39 Am. Dec. 132; Sell v. Dunn, 42 Ga. 528, 5 Am. Rep. 544; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, Fed. Cas. No. 2,730 ; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334. 33 Ante, p. 298. si Pierce v. Milwaukee & St. P. Ry. Co., 23 Wis. 387. See, also, Spears t. Lake Shore & M. S. R. Co., 67 Barb. (N. Y.) 513. Where a carrier under- takes to transport and sell goods, and return the money, the return of the money is not gratuitous. Harrington v. McShane, 2 Watts (Pa.) 443, 27 Am. Dec. 321; Kemp v. Coughtry, 11 Johns. (N. Y.) 107. § 107) COMMON OAEBIERS OF GOODS 305 Action for Refusal to Carry Involved in the holding out by the common carrier that he will serve the public is the duty on his part of making good this holding out by accepting, according to its tenor, the goods of all persons, properly tendered to him for transportation. 86 As a corollary to the proposition that he pursues a public calling, the common carrier is legally liable when, without sufficient excuse, he declines to receive and transport goods that are properly offered to him for carriage. The nature of this duty, the limitations on it, as well as the reme- dies for breach of it, will subsequently, be considered. 30 This legal duty of the carrier of goods to carry for all alike, with the attendant liability for a breach of this duty by a refusal to carry, has been frequently suggested as the true test by which the private or common character can be told. 87 If this duty exists, it is said, he is a common carrier; if it does not exist, he is a mere private carrier. As a practical test, however, it is worthless. The duty results from the public calling; the carrier does not pursue a public calling by virtue of, or owing to, the duty. He owes the duty because he is a common carrier; he is not a common carrier because he owes the duty. Again, in order to determine whether or not one is liable for his refusal to carry, it is essential to solve first the question whether or not one is a common carrier. The intending shipper, suing to recover for a breach of the duty, must first prove that the defendant is a common carrier of goods, in order to show that any such duty exists. A test, then, which requires, before it can even be applied, that the truth or falsity of the proposition for which it is a test be first determined by other means, is necessarily lacking in practical utility. «5 Nugent v. Smith, 1 C. P. Div. (Eng.) 19; Doty v. Strong, 1 Pin. (Wis.) 313, 40 Am. Dec. 773 ; Wheeler v. San Francisco & A. R. Co., 31 Cal. 46, 89 Am. Dec. 147; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Maybin v. South Carolina R. Co., 8 Rich. Law (S. C.) 240, 64 Am. Dec. 753; Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226; Avinger v. South Carolina Ry. Co., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716. se Post, §§ 109-114, 159. 87 Thus, in Pish v. Chapman, 2 Ga. 349, 354, 46 Am. Dec. 393, it is said: "One of the obligations of a common carrier, as we have seen, is to carry the goods of any person offering to pay his hire. With certain specific limita- tions, this is the rule. If he refuse to carry, he is liable to be sued, and to respond in damages to the. person aggrieved ; and this is, perhaps, the safest test of his character." See, also, Piedmont Mfg. Co. v. Columbia & G. R Co., 19 S. C. 353; Nugent v. Smith, L. R. 1 C. P. Div. (Eng.) 19. Dob.Bailm.— 20 306 PRIVATE AND COMMON CARRIERS OF GOODS (Ch. 9 Illustrations — Who are and Who are Not Common Carriers of Goods In accordance with the principles just explained, it has been held, by virtue of their public profession, that ferrymen, 88 bargemen, lightermen, and owners of canal boats S9 or steamboats,* are com- mon carriers of goods; also proprietors of land vehicles, such as stagecoaches, 41 hacks, cabs, omnibuses, and carts,* 2 for the nature 88 Wyckoff v. Queens County Ferry Co., 52 N. Y. 32, 11 Am. Eep. 650; Le Barron v. East Boston Perry Co., 11 Allen (Mass.) 312, 87 Am. Dec. 717; Lewis v. Smith, 107 Mass. 334; White v. Winnisimmet Co., 7 Cush. (Mass.) 156; Fisher v. Clisbee, 12 111. 344 ; Pomeroy v. Donaldson, 5 Mo. 36 ; Whitmore v. Bowman, 4 G. Greene (Iowa) 148; Miller v. Pendleton, 8 Gray (Mass.) 547; Claypool v. McAllister, 20 111. 504; Sanders v. Young, 1 Head (Tenn.) 219, 73 Am. Dec. 175; Wilson v. Hamilton, 4 Ohio St. 722; Harvey v. Rose, 26 Ark. 3, 7 Am. Rep. 595; Powell v. Mills, 37 Miss. 691; Griffith v. Cave, 22 Cal. 535, 83 Am. Dec. 82; May v. Hanson, 5 Cal. 360, 63 Am. Dec. 135; Little- john v. Jones, 2 McMul. (S. C.) 365, 39 Am. Dec. 132 ; Hall v. Renfro, 3 Mete. (Ky.) 51 ; Babcock v. Herbert, 3 Ala. 392, 37 Am. Dec. 695 ; Self v. Dunn, 42 Ga. 528, 5 Am. Rep. 544. 8» Spencer v. Daggett, 2 Vt 92; Harrington v. Lyles, 2 Nott & McC. (S. 0.) 88; Bowman v. Teall, 23 Wend. (N. Y.) 306, 309, 35 Am. Dec. 562; Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 Am. Dec. 521; De Mott v. Laraway, 14 Wend. (N. Y.) 225, 28 Am. Dec. 523. Compare Fish v. Clark, 49 N. Y. 122. See, also, Humphreys v. Reed, 6 Whart. (Pa.) 435; Fuller v. Bradley, 25 Pa. 120 ; Arnold v. Halenbake, 5 Wend. (N. Y.) 33 ; Hyde v. Trent & M. Nav. Co., 5 Term R. (Eng.) 389 ; Trent Nav. Co. v. Ward, 3 Esp. (Eng.) 127. *o Morse v. Slue, 1 Vent. (Eng.) 190; Reed v. Wilmington Steamboat Co., 1 Marv. (Del.) 193, 40 Atl. 955 ; Reasor v. Paducah & I. Ferry Co., 152 Ky. 220, 153 S. W. 222, 43 L. R. A. (N. S.) 820 ; 2 Kent, Comm. 599 ; Harrington v. McShane, 2 Watts (Pa.) 443, 27 Am. Dec. 321 ; Benett v. Peninsular & 0. Steamboat Co., 6 O. B. (Eng.) 775; Crouch v. Railway Co., 14 C. B. (Eng.) 255, 284; Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; The Delaware, 14 Wall. 579, 20 L. Ed. 779; Hastings v. Pepper, 11 Pick. (Mass.) 41; Gage v. Tirrell, 9 Allen (Mass.) 299; Elliott v. Rossell, 10 Johns. (N. Y.) 1, 6 Am. Dec. 306 ; Williams v. Branson, 5 N. C. 417, 4 Am. Dec. 562; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; Parker v. Flagg, 26 Me. 181, 45 Am. Dec. Ml; Swindler v. Hilliard, 2 Rich. Law (S. C.) 286, 45 Am. Dec. 732; Mc- Gregor v. Kilgore, 6 Ohio, 358, 27 Am. Dec. 260; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455 ; Cole v. Goodwin, 19 Wend. 251, 32 Am. Dec. 470; Jones v. Pitcher, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 716. A ship is a common carrier, though it does not ply on any definite route, or be- tween fixed termini, where it is let to any one who applies, under a special agreement. Liver Alkali Co. v. Johnson, L. R. 9 Exch. (Eng.) 338, 7 Exch. 267. « Story. Bailm. §§ 496, 499 ; Verner v. Sweitzer, 32 Pa. 208. Hackney coach, Bonce v. Dubuque St. Ry. Co., 53 Iowa, 278, 5 N. W. 177, 36 Am. Rep. 221. Omnibus, Parmelee v. Lowitz, 74 111. 116, 24 Am. Rep. 276; Dibble v. Brown, 12 Ga. 217, 56 Am. Dec. 460 ; Parmelee v. McNulty, 19 111. 556. 42 Cabs, drays, etc., see Story, Bailm. § 496; Richards v. Westcott, 2 Bosw. (N. Y.) 589; Verner v. Sweitzer, 32 Pa. 208 ; Powers v. Davenport, 7 Blackf. llnd.) 497, 43 Am. Dec. 100; McHenry v. Philadelphia, W. & B. R. Co., 4 Har. (Del.) 448. In Robertson v. Kennedy, 2 Dana (Ky.) 431, 26 Am. Dec. 466, § 107) COMMON CAEEIEKS OF GOODS 307 of the vehicle has nothing to do with the relation. When carrying passengers under a public holding out, these and other carriers are common carriers of goods as to the passengers' baggage. So called baggage transfer men, 43 who do nothing but carry trunks to and from railroad stations and steamboat wharves, are none the less common carriers of goods; also owners of express wagons, who carry goods only within the limits of a single city.* 4 Express companies " have been held to be common carriers of the court said: "Every one who pursues the business of transporting goods for hire for the public generally is a common carrier. * * * daymen, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So, also, does the driver of a slide with an ox team. The mode of transport- ing is immaterial." See, also, Ingate v. Christie, 3 Car. & K. (Eng.) 61 ; Sales v. Western Stage Co., 4 Iowa, 547; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Walker v. Skipwith, Meigs (Tenn.) 502, 33 Am, Dec. 161; Frink v. Coe, 4 G. Greene (Iowa) 555, 61 Am. Dec. 141 ; Powell v. Mills, 30 Miss. 231, 64 Am. Dec. 158. But see Brind v. Dale, 8 Car. & P. (Eng.) 207 ; Mo- ses v. Boston & M. R. R., 24 N. H. 71, 55 Am. Dec. 222 ; Charles v. Lasher, 20 111. App. 36 ; Parley v. Lavary, 107 Ky. 523, 54 S. W. 840, 49 L. R. A. 383 ; Lawson v. Judge of Recorder's Court of City of Detroit, 175 Mich. 375, 141 N. W. 623, 45 L. R. A. (N. S.) 1152. "Verner v. Sweitzer, 32 Pa. 208; Richards v. Westcott, 2 Bosw. (N. Y.) 589. See, also, Parmelee v. McNulty, 19 111. 556; Norfolk & W. R. Co. v. Old Dominion Baggage Co., 99 Va. Ill, 37 S. E. 784, 50 L. R. A. 722 j Hedding v. Gallagher, 72 N. H. 377, 57 Atl. 225, 64 L. R. A. 811. ** Richards v. Westcott, 2 Bosw. (N. Y.) 589 ; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 ; Caye v. Pool's Assignee, 108 Ky. 124, 55 S. W. 887, 49 L. R. A. 251, 94 Am. St. Rep. 348. A parcel delivery company is a common carrier. Johnson Express Co. v. City of Chicago, 136 111. App. 368. A telegraph company, furnishing messengers for the delivery of packages, does not assume the liability of a common car- rier, but only agrees that the messenger furnished shall be a suitable person for the work. Murray v. Postal Telegraph-Cable Co., 96 N. E. 316, 210 Mass. 188, Ann. Cas. 1912C, 1183. The mode employed in transporting goods is immaterial, and persons who are engaged in the business of transporting goods from place to place in a city, in drays or transfer wagons, may be common carriers. ARKADELPHIA MILLING CO. v. SMOKER MERCHAN- DISE CO., 100 Ark. 37, 139 S. W. 680, Dobie Cas. Bailments and Carriers, 175. « Bennett v. Northern Pac. Exp. Co., 12 Or. 49, 6-Pac. 160; Grogan v. Adams' Exp. Co., 114 Pa. 523, 7 Atl. 134, 60 Am. Rep. 360 ; Southern Exp. Co. v. Ashford, 126 Ala. 591, 28 South. 732 ; United States Exp. Co. v. Back- man, 28 Ohio St. 144; BUCKLAND v. ADAMS EXP. CO., 97 Mass. 124, 93 Am. Dec. 68, Dobie Cas. Bailments and Carriers, 177; Lowell Wire Fence Co. v. Sargent, 8 Allen (Mass.) 189; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed. 872; Sweet v. Barney, 23 N. Y. 335; American Exp. Co. v. Hockett, 30 Ind. 250, 95 Am. Dec. 691; Gulliver v. Adams Exp. Co., 38 ,111. 503; Verner v. Sweitzer, 32 Pa. 208; Christenson v. American Exp. Co., 15 Minn. 270 (Gil. 208), 2 Am. Rep. 122; Sherman v. WeUs, 28 Barb. (N. Y.) 403; Baldwin v. American Exp. Co., 23 111. 197, 74 Am. Dec. 190; Southern Exp. Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783; Hayes v. Wells, Fargo & 308 PRIVATE AND COMMON CARRIERS OF GOODS (Ch. 9 goods, though they employ, except as to local deliveries, the con- veyances of other common carriers, usually railroads. Railroad companies le are the best, as they are by far the most important, example of common carriers. Street railways " usually carry only passengers; but they may, and sometimes do, become common carriers of goods. Receivers and trustees 48 operating railroads are common carriers, as are also, according to the weight of authority, carriers of live stock. 49 A railroad company is none the less a common carrier when the shipper loads, a whole car, which is made part of one of the company's trains, 50 or even when a single shipper makes up a whole train, if such car or train is placed in the control or charge of the agents or employes of the railroad company. 61 But when the train is chartered by the railroad company to a person who con- trols the train, the railroad company furnishing merely the motive power and permitting the use of its tracks, the company is then no longer a common carrier. 52 Again, in the transportation under spe- Co., 23 Cal. 185, 83 Am. Dec. 89. See Roberts v. Turner, 12 Johns. (N. T.) 232, 7 Am. Dec. 311 ; Hooper v. Wells, Fargo & Co., 27 Cal. 11, 85 Am. Dec. 211. *« Memphis News Pub. Co. v. Southern Ry. Co., 110 Tenn. 684, 75 S. W. 841, 63 L. R. A. 150 ; Thompson-Houston Electric Co. v. Simon, 20 Or. 60, 25 Pac. 147, 10 L. R. A. 251, 23 Am. St. Rep. 86; Norway Plains Co. v. Boston & M. R. Co., 1 Gray (Mass.) 263, 61 Am. Dec. 423 ; Thomas v. Boston & P. R. Corp., 10 Mete. (Mass.) 472, 43 Am. Dec. 444; Root v. Great Western R. Co., 45 N. Y. 524; Fuller v. Naugatuck R. Co., 21 Conn. 557, 570; Rogers Locomotive & Machine Works v. Brie Ry. Co., 20 N. J. Eq. 379; Noyes v. Rutland & B. E. Co., 27 Vt. 110 ; Contra Costa Coal Mines R. Co. v. Moss, 23 Cal. 323. Rail- way companies are, perhaps, the most common instances of common car- riers, and it would be useless to multiply citations. The railroad company is also liable as a common carrier of goods as to the baggage of its passengers. Macrow v. Railway Co., L. R. 6 Q. B. (Eng.) 612; Hannibal & St J. R. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423. 47 1 Hutch. Carr. § 78; Levi v. Lynn & B. R. Co., 11 Allen (Mass.) 300, 87 Am. Dec. 713. *» Rogers v. Wheeler, 2 Lans. (N. T.) 486, 43 N. T. 598; Faulkner v. Hart, 44 N. Y. Super. Ct 471; Sprague v. Smith, 29 Vt 421, 70 Am. Dec. 424 ; Beers v. Wabash, St. L. & P. R. Co. (C. C.) 34 Fed. 244 ; Bartlett v. Keim, 50 N. J. Law, 260, 13 Atl. 7. 4» Post, § 119. bo Ohio & M. R. Co. v. Dunbar, 20 111. 623, 71 Am. Dec. 291; Central R. & Banking Co. v. Anderson, 58 Ga. 393 ; Fordyce v. McFlynn, 56 Ark. 424, 19 S. W. 961. si See, in general, as to carrier's handling a whole train, Hannibal & St J. R. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423; Chicago, B. & Q. R. Co. v. Curtis, 51 Neb. 442, 71 N. W. 42, 66 Am. St. Rep. 456; East Tennessee & G. R. Co. v. Whittle, 27 Ga. 535, 73 Am. Dec. 741. 02 East Tennessee & G. R. Co. v. Whittle, 27 Ga. 535, 73 Am. Dec. 741; Ohio & M. R. Co. v. Dunbar, 20 111. 624, 71 Am. Dec. 291; Kimball v, Rutland & § 107) COMMON CARRIERS OF GOODS - 309 cial contract of special circus trains, made up of specially designed cars owned by the circus proprietor, and largely regulated by his employes, the railroad company is held not to be a common car- rier. 03 The following are held not to be common carriers of goods: Sleeping and parlor car companies, 64 since they do not control the train of which their cars are a part, but these are expressly in- cluded within the definition of common carriers under the federal Interstate Commerce Act; BB owners of tugs and other towboats, 56 as a rule, since they furnish only motive power and the property B. R. Co., 26 Vt. 247, 62 Am. Dec. 567 ; Davis v. Chicago, St. P., M. & O. Ry. Co., 45 Fed. 543 ; American Exp. Co. v. Ogles, 36 Tex. Civ. App. 407, 81 S. W. 1023. But see Mallory v. Tioga R. Co., 39 Barb. (N. T.) 488; Hannibal & St. J. R. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423. »8 COUP v. WABASH, ST. L. & P. R. CO., 56 Mich. Ill, 22 N. W. 215, 56 Am. Rep. 374, Dobie Cas. Bailments and Carriers, 181; Chicago, M. & St. P. R. Co. v. Wallace, 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161 ; Robertson v. Old Colony Ry. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482. See, generally, as to the liability of a railroad hauling cars for another company, Peoria & P. Union Ry. Co. v. United States Rolling Stock Co., 136 111. 643, 27 N. E. 59, 29 Am. St. Rep. 348. is* Pullman Palace Car Co. v. Smith, 73 111. 360, 24 Am. Rep. 258 ; Pull- man Car Co. v. Gardner, 3 Penny. (Pa.) 78; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574 ; Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102; Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St. Rep. 325; Bar- rott v. Pullman's Palace Car Co., 51 Fed. 796 ; Pullman Palace Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578. See articles, 25 Am. Law Rev. 569, and 20 Am. Law R.ev. 159. See "Innkeepers," ante, p. 247; "Carriers," post, p. 520. 65 Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154). o« See 1 Hutch. Carr. § 92; THE NEAFFIE, 1 Abb. (U. S.) 465, Fed. Cas. No. 10,063, 5 Myers, Fed. Dec. 19, Dobie Cas. Bailments and Carriers, 179; Brown v. Clegg, 63 Pa. 51, 3 Am. Rep. 522; Hays v. Millar, 77 Pa. 238, 18 Am. Rep. 445; Leonard v. Hendrickson, 18 Pa. 40, 55 Am. Dec. 587; Hays v. Paul, 51 Pa. 134, 88 Am. Dec. 569 ; Wells v. Steam Nav. Co., 2 N. T. 204, 8 N. Y. 375 ; Caton v. Rumney, 13 Wend. (N. Y.) 387 ; Alexander v. Greene, 3 Hill (N. Y.) 9 ; Arctic Fire Ins. Co. v. Austin, 54 Barb. (N. Y.) 559 ; Merrick v. Brainard, 38 Barb. (N. Y.) 574 ; Eastern Transp. Line v. Hope, 95 U. S. 297, 24 L. Ed. 477; The Webb, 14 Wall. 406, 20 L. Ed. 774; Varble v. Bigley, 14 Bush (Ky.) 698, 29 Am. Rep. 435 ; The New Philadelphia, 1 Black, 62, 17 L. Ed. 84 ; The Oconto, 5 Biss. 460, Fed. Cas. No. 10,421 ; Abbey v. The Robert L. Stevens, 22 How. Prac. (N. Y.) 78, Fed. Cas. No. 8; Wooden v. Austin, 51 Barb. (N. Y.) 9 ; The Margaret, 94 U. S. 494, 24 L. Ed. 146 ; Symonds v. Pain, 6 Hurl. & N. (Eng.) 709; The Julia, 14 Moore P. C. (Eng.) 210. But see, contra, Bussey v. Mississippi Val. Transp. Co., 24 La. Ann. 165, 13 Am. Eep. 120; Clapp v. Stanton, 20 La. Ann. 495, 96 Am. Dec. 417; Smith v. Pierce, 1 La. 349; White v. The Mary Ann, 6 Cal. 462, 65 Am. Dec. 523; Walston v. Myers, 50 N. C. 174. See, also, Ashmore v. Pennsylvania Steam Towing & Transp. Co., 28 N. J. Law, 180. In Bussey v. Mississippi Val 310 PRIVATE AND COMMON CARRIERS OF GOODS (Ch. 9 towed is not placed in their exclusive custody or control; tele- phone and telegraph companies, 57 since they do not carry at all. So, also, log driving and booming companies BS and agisters and drovers B8 of cattle ; postmasters, mail contractors, and carriers of the mail, 00 their contract being with the government alone; liv- ery stable keepers, 01 who merely hire horses and vehicles; ware- housemen and wharfingers; 82 bridge, 63 canal, 84 and turnpike com- Transp. Co., supra, it was suggested that a steam towboat might be em- ployed in two very different ways, and that possibly this fact would explain the conflict of opinion. In the first place, it may be employed as a mere means of locomotion, under the entire control of the towed vessel, or the owner of the towed vessel and goods therein may remain in possession and control of the property thus transported, to the exclusion of the bailee, or the towing may be casual, merely, and not a regular business between fixed termini; and it might well be said that, under such circumstances, a tow- boat is not the common carrier. But a second and quite different method of employing a towboat is where she plies regularly between the fixed termini, towing for hire, and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor, the property thus transported. Such a case seems to satisfy every require- ment in the definition of a common carrier. 57 Breese v. United States Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526; Hibbard v. Western Union Tel. Co., 33 Wis. 558, 14 Am. Rep. 775 ; Grinnell v. West- ern Union Tel. Co., 113 Mass. 299, 18 Am. Rep. 485 ; Marr v. Western Union Tel. Co., 85 Tenn. 529, 3 S. W. 496 ; Fowler v. Western Union Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211. But see Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Gwynn v. Citizens' Tel. Co., 69 S. C. 434, 48 S. B. 460, 67 L. R. A. Ill, 104 Am. St. Rep. 819; Pacific Tel. Co. v. Underwood, 37 Neb. 315, 55 N. W. 1057, 40 Am. St. Rep. 490. Tbese are common carriers under the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) § 1. See Johnson on Inter- state Commerce (2d Ed.) § 133. 5 8 Mann v. White R. L. & B. Co., 46 Mich. 38, 8 N. W. 550, 41 Am. Rep. 141. «» 1 Hutch. Carr. § 99; Story, Bailm. § 443. eo Lane v. Cotton, 1 Ld. Raym. (Eng.) 646; Dunlop v. Munroe, 7 Cranch, 242, 3 L. Ed. 329 ; Wiggins v. Hathaway, 6 Barb. (N. X.) 632 ; Schroyer v. Lynch, 8 Watts (Pa.) 453; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Boston Ins. Co. v. Chicago, R. I. & P. Ey. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796 ; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. A. 397, Dobie Cas. Bailments and Carriers, 267 ; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348. ei COPELAND v. DRAPER, 157 Mass. 558, 32 N. E. 944, 19 L. R. A. 283, 34 Am. St. Rep. 314, Dobie Cas. Bailments and Carriers, 25; Stanley v Steele, 77 Conn. 688, 60 Atl. 640, 69 L. R. A. 561, 2 Ann. Cas. 342. "Chattock v. Bellamy, 64 L. J. Q. B. (Eng.) 250; Schloss v. Wood, 11 Colo. 287, 17 Pac. 910 ; 1 Hutch. Carr. § 71. o a Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (C. C.) 37 Fed. 567, 616; Grigsby v. Chappell, 5 Rich. Law (S. C.) 443. «4 Exchange Fire Ids. Co. v. Delaware & H. Canal Co., 10 Bosw. (N. Y.) 180 ; Pennsylvania Canal Co. v. Burd, 90 Pa. 281 ; Watts v. Canal Co., 61 Ga. 8a § 107) COMMON CARRIERS OF GOODS 311 panies, 60 which furnish a thoroughfare by means of which others trans- port goods, but which are not themselves engaged in transportation; irrigation companies, 68 which merely furnish water for irrigation pur- poses. «o Lake Superior & M. R. Co. v. United States, 93 TJ. S. 442, 444, 23 L. Ed. 965. eo Wyatt y. Larimer & W. Irr. Co., 1 Colo. App. 480, 29 Pac. 906. 312 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch, 10 CHAPTER X LIABILITIES OF THE COMMON CARRIER OF GOODS 108. Introductory Outline. 109. Duty to Carry for All. 110. Duty Coextensive with the Holding Out. 111. Duty Limited by the Extent of the Carrier's Facilities. 112. Duty Limited by the Nature or Condition of the Goods. 113. Duty Limited by the Carrier's Right to Demand Payment In Ad- vance. 114. Duty Limited to an Offer of the Goods by the Owner or His Agent. 115. Duty to Furnish Equal Facilities to All. 116. Liability for Loss of, or Damage t«s the Goods. 117. Liability as Affected by the Carrier's Negligence. 118. Burden of Proof. 119. Carriers of Live Stock. 120. The Harter Act as to Carriers by Water — Limited Liability Act 121. Carrier's Liability for Deviation and Delay — Deviation. 121%. Delay. INTRODUCTORY OUTLINE 108. The most important liabilities imposed by law upon the com- mon carrier of goods are: (a) His duty to carry for all. (b) His duty to furnish equal facilities to all. (c) His liability for loss' of, or damage to, the goods. (d) His liability for deviation and delay. Mention has been made in several places of the common car- rier of goods as one of the extraordinary bailees, and in the last chapter the nature of the relation and its distinctive features have been brought out. The rights and liabilities incident to the re- lation would seem to be next in order. The present chapter will be devoted solely to a discussion of the liabilities of the common carrier of goods, when these are neither enlarged nor diminished by special agreement. The common carrier's liability under spe- cial contract will be the subject of chapter XI, while chapter XII will discuss the somewhat unique rights which are possessed by the common carrier of goods as a partial return, at least, for the un- usual liabilities imposed on him by the common law. 109) DUTY TO CARRY FOR ALL 313 DUTY TO CARRY FOR ALL 109. It is the duty of the common carrier of goods to accept and transport all goods offered, subject to the following lim- itations : (1) The nature of his holding out. (2) The extent of his facilities. (3) The nature and condition of the goods. (4) The payment of his charges in advance. (5) The shipper's authority to deliver. The duty of the common carrier of goods to carry for all has already been briefly discussed in connection with the question of who are common carriers. 1 This duty is imposed by law as the result of the carrier's public profession, but it is subject to the limitations above set out which will now be considered in detail. For a violation of this legal duty, the carrier may be sued at law by the intending shipper, who may recover for the damage prox- imately resulting from such refusal. 2 In a few cases, under pe- culiarly aggravating circumstances, exemplary damages have been allowed. 3 In many cases, it has been held that an injunction or peremptory writ of mandamus will issue to compel the common carrier, in the discharge of this clear legal duty, to accept and transport the goods which have been properly tendered to him.* i Ante, § 107. 2 Reid v. Southern Ry. Co., 153 N. O. 490, 69 S. E. 618 ; Ayres v. Chicago & N. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226 ; Atchison T. & S. F. Ry. Co. v. Denver & N. O. Ry. Co., 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291 ; Chicago & A. Ry. Co. v. Suffern, 129 111. 274, 21 N. E. 824 ; St. Louis, A. & T. Ry. Co. v. Neel, 56 Ark. 279, 19 S. W. 963; Seasongood v. Tennessee & O. R. Transp. Co., 54 S. W. 193, 21 Ky. Law Rep. 1142, 49 L. R. A. 270 ; Houston, E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225 ; Riley v. Home, 5 Ring. (Eng.) 217 ; Crouch v. London, etc., Ry. Co., 14 C. B. (Eng.) 255 ; Beech Creek Ry. Co. v. Olanta Coal Mining Co., 158 Fed. 36, 85 C. C. A. 148; Louisville & N. Ry. Co. v. Higdon, 149 Ky. 321, 148 S. W. 26. It has been said (Pozzi v..Shipton, 1 Per. & D. [Eng.] 4, 12) that the carrier may be indicted, but there seem to be no records of convictions in such cases. 3 Avinger v. South Carolina Ry. Co., 29 S. 0. 265, 7 S. E. 493, 13 Am. St. Rep. 716. * Southern Exp. Co. v. Rose, 124 Ga. 581, 53 S. E. 185, 5 L. R. A. (N. S.) (319 ; CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 111. 365, 8 Am, Rep. 690, Dobie Cas. Bailments and Carriers. 183; Atwater v. Dela- ware, L. & W. R. Co., 48 N. J. Law, 55, 2 Atl. 803, 07 Am. Rep. 543 ; Sand- ford v. Catawissa, W. & E. R. Co., 24 Pa. 378, 64 Am. Dec. 667; People v. New York Cent. & H. R. R. Co., 28 Hun (N. Y.) 543 ; Menacho v. Ward (C. C.) 314 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 SAME— DUTY COEXTENSIVE WITH THE HOLDING OUT 110. As the common carrier's duty to carry is coextensive with his holding out, he is not obliged to accept goods of a kind he does not profess to carry, nor for carriage over any other route nor by any other means than those in- dicated by his profession. The duty of the common carrier of goods to carry for all who offer arises from the public profession he has made, and is in turn limited by it. This public profession, therefore, not only furnishes the basis of the duty, but also defines its extent. Accordingly, as to the duty to accept goods for transportation, the carrier is a common carrier only within the limits that he has himself pre- scribed. 5 If the transportation sought by the individual shipper is outside of these limits, the carrier has a perfect right, without incurring any liability, to refuse to accept the goods for shipment. Thus a person may profess to carry a particular class of goods only, as, for instance, cattle or dry goods, in which case he could not be compelled to carry any other kind of goods ; or he may limit his obligation to carrying from one place to another, as from Man- chester to London, and then he would not be compelled to carry either beyond these termini or to or from intermediate places. 6 As we have seen, the wagoner may confine his activities as a com- 27 Fed. 529 ; Chicago, B. & Q. By. Co. v. Burlington, C. R. & N. Ry. Co. (C. C.) 34 Fed.. 481. Where an action for damages is an adequate remedy, mandamus will not lie. People v. New York, L. E. & W. R. Co., 22 Hun (N. Y.) 533 ; People v. Babcock, 16 Hun (N. Y.) 313. s Lake Shore & M. S. R. Co. v. Perkins, 25 Mich. 329, 12 Am. Rep. 275; Tunnel v. Pettijohn, 2 Har. (Del.) 48 ; Knox v. Rives, 14 Ala. 249, 48 Am. Dec. 97 ; Powell v. Mills, 30 Miss. 231, 64 Am. Dec. 158 ; Carr v. Lancashire, etc., Ry. Co., 7 Exch. (Eng.) 707 ; Batson v. Donovan, 4 B. & Aid. (Eng.) 21. Where a carrier holds itself out as only engaged in the carriage of specified articles, it is under no obligation to carry other things. Louisville & N. R. Co. v. Hig- don, 149 Ky. 321, 148 S. W. 26. « Johnson v. Railway Co., 4 Exch. (Eng.) 367 ; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334 ; Honeyman v. Oregon & C. R. Co., 13 Or. 352, 10 Pac. 628, 57 Am. Rep. 20 ; Kimball v. Rutland & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567; Pitlock v. Wells, Fargo & Co., 109 Mass. 452; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, 33, Fed. Cas. No. 2,730; Sewall v. Allen, 6 Wend. (N. Y.) 335, 346; Kuter v. Michigan Cent. R. Co., 1 Biss. 35, Fed. Cas. No. 7,955. Carriers of money: Shelden v. Bob- inson, 7 N. H. 157, 26 Am. Dec. 726 ; Kemp v. Coughtry, 11 Johns. (N. Y.) 107, 109 ; Emery v. Hersey, 4 Greenl. (Me.) 407, 16 Am. Dec. 268 ; Harrington v. McShane, 2 Watts (Pa.) 443, 27 Am. Dec. 321; Merwin v. Butler, 17 Conn. 138 ; Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 Am. Dec. 133. § 111) DUTY LIMITED BY EXTENT OE OARBIEB'S FACILITIES 315 raon carrier to a single city, or baggage transfer men may engage as common carriers solely in the business of transporting trunks to and from railroad stations and steamboat wharves. 7 The car- rier may also by his profession limit the means of transportation. Thus the wagoner could not be compelled to carry by railroad, nor must the carrier by land accept goods for transportation by wa- ter. 8 Again, even apart from a definite profession by the carrier, com- mon sense would impose certain limitations on his duty to accept goods for transportation. Thus he is not compelled to accept goods tendered at an unreasonable hour, or at an unreasonable place, 9 or even when tendered an unreasonably long time before the goods are to be shipped. 1 * But to the extent of his public pro- fession the common carrier must carry for all who offer. SAME— DUTY LIMITED BY THE EXTENT OF THE CARRIER'S FACILITIES 111. The early rule seems to have been that the common carrier's duty was strictly limited by his facilities, however in- sufficient they were; but the modern rule requires the common carrier of goods to provide sufficient facilities to handle all the traffic which can reasonably be antici- pated. By the early common law the duty of the carrier to accept goods for transportation seems to have been strictly limited to his facil- ities, however crude and insufficient these might have been. 11 Thus it was said that the carter was not bound to supply more carts than he was in the habit of employing, when these were not sufficient to carry the goods tendered to him. 12 And it was further held that he was not obliged to accept goods for transportation t Ante, § 107. s 1 Hutch. Carr. § 60 ; Pittsburgh, O. & St, L. Ry. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682 ; Pitlock v. Wells, Fargo & Co., 109 Mass. 452. » Pickford v. Railway Co., 12 Mees. & W. (Eng.) 766 ; Lane v. Cotton, 1 Ld. Baym. (Bng.) 646, 652; Louisville, N. A. & C. Ry. Co. v. Flanagan, 113 Ind. 188, 14 N. E. 370, 3 Am. St. Rep. 674 ; Cronkite v. Wells, 32 N. Y. 247. io Palmer v. Railway Co., 35 Law J. C. P. (Bng.) 289 ; Garton v. Railway, Co., 28 Law J. C. P. (Bng.) 306 ; Lane v. Cotton, 1 Ld. Raym. (Eng.) 646. ii Jackson v. Rogers, 2 Stow. (Eng.) 327; Batson v. Donovan, 4 B. & Aid. (Eng.) 21; Riley v. Home, 5 Bing. (Eng.) 217; Tunnel v. Pettijohn, 2 Har. (Del.) 48. 12 Wood, Browne, Carr. § 73 ; Johnson v. Ry. Co., 4 Exch. (Eng.) 367, 373. 316 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 when the vehicles which he. employed were already full. 13 In other words, the carrier might provide as many or as few facilities as he saw fit, the law imposed no obligation on him in this respect, and these facilities constituted the limit of his duty to accept goods to be carried. However well these rules may have worked at a time when the wagoner and carter were the chief instruments of commerce on land, they are clearly unsuited to modern economic conditions. The part played by the railroad to-day in the 'development of any community, and the unique privileges (such as the power of emi- nent domain) which it enjoys, would emphatically forbid the lax- rules under which the wagoner pursued his calling. It is now held, therefore, that the common carrier of goods must provide facilities sufficient to handle the volume of traffic which, under the circumstances, might reasonably be anticipated. 1 * For his failure in this respect the carrier is correspondingly liable in damages to the shipper. To that extent, too, the carrier cannot plead the lack of facilities as an excuse for his failure to accept and transport the goods offered to him. The nature and extent of the equipment which the carrier must furnish is accordingly based on, and determined by, the reasonable demands of the traffic under the particular conditions in question. The carrier, however, is not required to provide facilities adequate for any demands that may be made upon him, and particularly is he excused from liability for his failure to provide for an unusual influx of goods, an unexpected accumulation of freight, or an extraordinary press of business. 18 Any such requirement would be abnormal, and is See cases cited In note 11. i* Missouri & N. A. Ry. Co. v. Sneed, 85 Ark. 293, 107 S. W. 1182; Feet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446; Galena & C. U. R. Co. v. Rae, 18 111. 488, 68 Am. Dec. 574 ; Chicago & A. Ry. Co. v. Davis, 159 111. 53, 42 N. E. 382, 50 Am. St. Rep. 143; Baker v. Boston & M. Ry. Co., 74 N. H. 100, 65 Atl. 386, 124 Am. St Rep. 937,. 12 Ann. Cas. 1072; Western New York & P. Ry. Co. v. Penn Refining Co., Limited, of Oil City, Pa., 137 Fed. 343, 70 C. C. A. 23; Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230. For an elaborate treatment of the commoricarrier's duty to provide adequate facilities, with copious citations, • see 1 Wyman Public Service Corporations, c. 23. Where the shipper applies for cars, to be furnished at a certain time and place, the carrier, if unable to furnish the cars, must so notify the shipper. Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226 ; Newport News & M. V. R. Co. v. Mercer, 96 Ky. 475, 29 S. W. 301. is Toledo, W. & W. Ry. Co. v. Lockhart, 71 111. 627; Galena & C. D. R. Co. v. Rae, 18 111. 488; Faulkner v. Railroad Co., 51 Mo. 311; Condict v. Railway Co., 54 N. Y. 500 ; Ch}cago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 467, 39 N. B. 451; ST. LOUIS SOUTHWESTERN RY. CO. v. CLAY COUNT! § 112) DUTY LIMITED BY NATTJBE OB CONDITION OF GOODS 31T would impose an unreasonable, and often even an impossible, con- dition upon the carrier. But if the carrier by the exercise of rea- sonable diligence could have provided adequate facilities to handle this press of business, then the carrier should not be excused for his failure in this respect. 16 Though the rule imposing upon the common carrier the duty of furnishing reasonable facilities ample for handling traffic which reasonably might have been foreseen is held by modern cases to be a duty derived from, the common law, many states have passed statutes on the subject. 17 The same duty, however, is recognized by the federal Interstate Commerce Act, 18 while the right of en- forcing Jthis duty by mandamus is specifically conferred on the United States courts. 18 SAME— DUTY LIMITED BY THE NATURE OR CONDI- TION OF THE GOODS 112. The common carrier is not obliged to accept for transportation goods of a dangerous or suspicious nature, or goods in such condition as to be unfit for shipment. The high degree of responsibility as to the goods in his charge is sufficient in itself to excuse the carrier from accepting goods GIN CO., 77 Ark. 357, 92 S. W. 531, Dobie Cas. Bailments and Carriers, 185 ; Wallace v. Pecos & N. T. Ey. Co., 50 Tex. Civ. App. 296, 110 S. W. 162; Yazoo & M. V. Ry. Co. v. McKay, 91 Miss. 138, 44 South. 780. It is the duty of a railroad company to provide cars sufficient to transport goods offered in the usual and ordinary course of business, but it is not bound to anticipate and prepare for an exceptional and extraordinary press of business. South- ern Ry. Co. v. Atlanta Sand & Supply Co., 135 Ga. 35, 68 S. E. 807. See, also, Montana, W. & S. Ry. Co. v. Morley (D. C.) 198 Fed. 991. i6 Hansley v. Jamesville & W. R. Co., 117 N. C. 565, 23 S. B. 443, 32 L. R. A. 543, 53 Am. St. Rep. 600 ; Ayres v. Chicago & N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226 ; Illinois Cent. Ry. Co. v. Cobb, 64 111. 128; Dallenbach v. Illinois Cent. Ry. Co., 164 111. App. 310. " See Oliver & Son v. Chicago, R. I. & P. Ry. Co., 89 Ark. 466, 117 S. W. 238; Murphy Hardware Go. v. Southern Ry. Co., 150 N. C. 703, 64 S. E. 873, 22 L. R. A. (N. S.) 1200, 17 Ann. Cas. 481. Some of these statutes, im- posing stringent and unreasonable duties on the carrier, have been declared void by the federal courts. See Houston & T. C. Ry. Co. v. Mayes, 201 U. S. 321, 26 Sup. Ct. 491, 50 L. Ed. 772 ; St. Louis, I. M. & S. Ry. Co. v. Hamp- ton (C. C.) 162 Fed. 693. is Interstate Commerce Act Feb. 4, 1887, c. 104, §§ 1, 3, 23, 24 Stat 379, 380 (U. S, Comp. St. 1901, pp. 3154, 3155, 3171). io See the deficiency appropriation bill of October 22, 1913, abolishing the Commerce Court (which formerly exercised this jurisdiction), and conferring on the United States District Court the powers formerly possessed by the Commerce Court. 318 LIABILITIES OF THE COMMON CARRIER OP GOODS (Ch.10 which are likely to injure other goods which he is transporting. The carrier, therefore, owes no duty to accept goods which are from their very nature dangerous. 20 Thus the common carrier is justified in refusing to receive such highly explosive substances as dynamite or nitro-glycerine. 21 The same is true of goods af- fected with contagious diseases, goods prohibited by law from being carried, 22 or goods the transportation of which might pre- cipitate a dangerous riot. 28 When the carrier has reasonable grounds for suspicion that the goods are dangerous, he may re- fuse to receive such goods, unless he is permitted to open such goods or otherwise acquaint himself with their real nature. 24 Ordinarily, he has no right to insist upon being informed as to the contents of packages offered to him for shipment. 25 Even though the goods are not dangerous by nature, the carrier may refuse to receive them if, in their then condition, they are unfit for shipment. The carrier may also refuse to accept goods which are improperly packed for shipping. 20 Thus the carrier could refuse eggs merely placed in an open basket, or liquids pack- ed in vessels so fragile that they are certain to be broken in transportation. 20 The Nith (D. C.) 36 Fed. 86; California Powder Works v. Atlantic & P. Ry. Co., 113 Cal. 329, 45 Pac. 691, 36 L. R. A. 648. "Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206. 22 Milwaukee Malt Extract Co. v. Chicago, R. I. & P. Ry., 73 Iowa, 98, 34 N. W. 761 ; State v. Goss, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706. 23 Edwards v. Sherratt, 1 East (Eng.) 604; Porcher v. Northeastern R. Co., 14 Rich. (S. C.) 181, 184; Pearson v. Duane, 4 Wall. 605, 18 L. Ed. 447. 24 Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206; Brass v. Maitland, 6 El. & Bli (Eng.) 485; Crouch v. Railroad Co., 14 C. B. (Eng.) 285, 291; Riley v. Home, 5 Bing. (Eng.) 217, 222. so Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206; Crouch v. Railroad Co., 14 C. B. (Eng.) 285, 291; Dinsmqre v. Louisville, N. A. & C. R. Co. (C. C.) 3 Fed. 593. The right of the company to have parcels opened extends only to those suspected to contain dangerous articles. They have no general right, in all cases, and under all circumstances, to be informed of the contents ten- dered to be carried. Crouch v. Railway Co., 14 C. B. (Eng.) 255. Where a customer negligently fails to inform the carrier of the dangerous nature of a parcel, he will be liable for damages caused by it. Farrant v. Barnes, 31 Law J. C. P. (Eng.) 137, 11 C. B. (N. S.) 553. 26 Elgin, J. & E. Ry. Co. v. Bates Mach. Co., 98 111. App. 311, affirmed 200 111. 636, 66 N. E. 326, 93 Am. St. Rep. 218 ; Vicksburg Liquor & Tobacco Co. v. United States Exp. Co., 68 Miss. 149, 8 South. 332; Union Exp. Co. v. Graham, 26 Ohio St. 595. Goods packed so defectively as to entail upon the carrier extra care and risk may be refused. Munster v. Railway Co., 27 Law J. C. P. (Eng.) 308, 312; Hart v. Baxendale, 16 Law T. N. S. (Eng.) 396. § 113) EIGHT TO DBMAKD PAYMENT IN ADVANCE 319 SAME— DUTY LIMITED BY THE CARRIER'S RIGHT TO DEMAND PAYMENT IN ADVANCE 113. The common carrier may refuse to carry the goods offered unless the transportation charges are paid in advance. Since the common carrier of goods cannot choose with whom he will deal, but must carry indifferently for all who apply, it is but just that his compensation should be absolutely assured to him. Therefore the law treats him as it does the innkeeper, and not only gives him a lien upon the goods carried for his reasonable charges, but also authorizes him to require payment in advance. 27 The detailed consideration of this subject will be postponed to the chapter dealing with the rights of the common carrier of goods. 28 Payment in advance is treated here solely as an excuse for the common carrier's refusal to carry the goods offered to him. This duty on the part of the carrier to carry for all falls away when the carrier demands the payment of his reasonable charges in advance, and this is refused by the shipper. 28 If such prepayment is not made on demand, the carrier is then under no obligation whatsoever to transport the goods. The money is not required to be paid down however, until the carrier receives the goods which he is bound to carry. 80 A carrier should therefore first accept the goods, and then demand payment as a condition precedent to transporting them. 31 The right to exact payment in advance may, of course, be waived, 82 and is waived by any conduct on the part of the car- rier inconsistent with the continuance of the right, 33 such as an actual acceptance of the goods for carriage without a demand for prepayment of the charges. 27 Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am. Dec. 33; Pickford v. Rail- way Co., 8 Mees. & W. (Eng.) 372 ; Wyld v. Pickford, 8 Mees. & W. (Eng.) 443. as See post, § '147. 2 » Wilder v. St. Johnsbury & L. 0. R. Co., 66 Vt. 636, 30 Atl. 41; Illinois Cent. Ry. Co. v. Frankenberg, 54 111. 88, 5 Am. Rep. 92. But, unless the carrier demands prepayment, " failure on the shipper's part to tender the charges will not justify the carrier's refusal to transport the goods. Galena & C. U. Ry. Co. v. Rae, 18 111. 488, 68 Am. Dec. 574. 30 Pickford v. Ry. Co., 8 Mees. & W. (Eng.) 372. si 1 Hutch. Carr. § 150. 82 Louisville & N. R. Co. v. Allgood, 113 Ala. 163, 20 South. 986 ; Hannibal & St J. Ry. Co. v. Swift, 12 Wall. 262, 20 U Ed. 423. 38 Grand Rapids & I. Ry. Co. v. Diether, 10 Ind. App. 206, 37 N. E. 39, 1069, 53 Am. St. Rep. 385; Southern Indiana Exp. Co. v. United States Exp. Co. (C. C.) 88 Fed. 659. 320 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 SAME— DUTY LIMITED TO AN OFFER OF THE GOODS BY THE OWNER OR HIS AGENT 114. The common carrier may refuse to accept goods offered for transportation by one who is neither the owner of the goods nor the owner's authorized agent. Common carriers are bound to accept goods for transportation only when they are offered by their lawful owner or his agent with . authority to make the shipment. 84 If the goods are inno- cently accepted by the common carrier from a person not the owner, and who has no such authority from the owner, then not only is the contract of carriage not binding personally against the owner, but such contract, as against the owner, does not even bind the goods. The owner could therefore demand the goods from the carrier, defeating the latter's lien. 36 The carrier, acting in good faith, it is usually held, does not become liable for conver- sion merely by innocently shipping the goods. 30 The carrier may become liable for conversion by refusing to deliver the goods to their rightful owner. When, however, the carrier, with knowledge of the situation, receives and transports the goods, the carrier then becomes an active participant in the wrong and is liable accord- ingly. From these considerations it is clear that the carrier, in refusing to accept goods for transportation, finds more than ample justification in the fact that the one offering the goods is neither the owner nor his authorized agent. 37 DUTY TO FURNISH EQUAL FACILITIES TO ALL 115. Not only must the common carrier of goods serve the pub- lic, but he must serve the public impartially, without any preference or discrimination among shippers as to the facilities which are furnished. »* Drake v. Nashville, O. & St. L. Ry. Co., 125 Tenn. 627, 148 S. W. 214; Fitch -V. Newberry, 1 Dong. (Mich.) 1, 40 Am. Dec. 33 ; Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555. so Fitch v. Newberry, 1 Doug. (Mich.) 1, 40 Am: Dec. 33; Gurley v. Arm- stead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 8Q, 12 Am. St. Rep. 555. se Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555. 87 a common carrier need not receive for transportation goods from any person other than the owner or his duly authorized agent. Drake v. Nash- ville, C. & St It. R. Co., 125 Tenn. 627, 1.48 S. W. 214. § 115) DUTY TO FURNISH EQUAL FACILITIES TO ALL 321 It is the purpose of the present section to discuss the question of preference or discrimination among shippers in regard to the carrier's facilities or the nature of the service. Discrimination in the rates charged for the service is left for subsequent consider- ation. 88 The duty of the common carrier of goods is not limited to serving the public, bu t he must serve thpm im partia lly. 89 He does not per- form his full duty, then, as to two shippers, by serving them both. He must go further, and not.pxe£6r- j the--eae--te--the-.o,thpr as to. the way jn which he serves t hem. The s .ervice mus t be disintere sted, wit h nothing in it of favo ritism. 40 This is true, not only as to the facihEesfurnished by the carrier and the general nature of the service, but is equally applicable to the highly important element of time. Snipjers s hould he sprvpr l in thp nrAer...nLtheir applica- tion. The carrier violates its duty of impartiality by withholding cars -from one shipper* and fOTmsTHng them sooneiTto one who sub- sequently applied.* 1 >s Post, § 148. so ST. LOUIS SOUTHWESTERN R. CO. T. CLAY COUNTY GIN CO., 77 Ark. 357, 92 S. W. 531, Dobie Cas. Bailments and Carriers, 185; Memphis News Pub. Co. v. Southern R. Co., 110 Tenn. 684, 75 S. W. 941, 63 L. R. A. 150; Loraine v. Pittsburg, J., E. & E. Ry. Co., 205 Pa. 132, 54 Atl. 580, 61 L. R. A. 502 ; Strough v. New York Cent. & H. R. R. Co., 181 N. Y. 533, 73 N E. 1133; New England Exp. Co. v. Maine Cent. R. Co., 57 Me. 188, 2 Am. Rep. 31 ; International Exp. Co. v. Grand Trunk Railway of Canada, 81 Me. 92, 16 Atl. 370 ; Houston & T. C. Ry. Co. v. Smith, 63 Tex. 322 ; McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72; Messenger v. Penn- sylvania R. Co., 37 N. J. Law, 531, 18 Am. Rep. 754; CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 111. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers, 183. *° In State ex rel. Cumberland Telephone & Telegraph Co. v. Texas & ■ P. Ry. Co., 52 La. Ann. 1850, 28 South. 284, mandamus was held prop er to compel the carrier to furnish to onete|ephone" and^eJjy>rarjh_£jQmpiiny the facilitie^"TextenrieT3~to"its^^^^rSee^ als67T6¥aT5e"v. Pittsburg, J., E. & E. Ry.T!67205Ra7T327"oTAti. 580, 61 L. R. A. 502, when the discrimination was due to the KPlfis]T_ private in terests O f tfl" rrpgiripnt- "f Hip raj l rn arl ; CHI- CAGO & N. W. RY. CO. v. PEOPLE ex rel. HEMPSTEAD, 56 111. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers, 183, involving delivery to some grain elevators and not to others. « Rhodes v. Northern Pac. Ry. Co., 34 Minn. 87, 24 N. W. 347; Nichols v. Oregon Short Line Ry. Co., 24 Utah, 83, 66 Pac. 768, 91 Am. St. Rep. 778; Houston & T. C. Ry. Co. v. Smith, 63 Tex. 322; Great Western Ry. Co. of Canada v. Burns, 60 111. 284 ; CHICAGO & N. W. R. CO. v. PEOPLE* ex rel. HEMPSTEAD, 56 111. 365, 8 Am. Rep. 690, Dobie Cas. Bailments and Carriers. 183; Chicago & A. R. Co. v. People ex rel. Koerner, 67 111. 11, 16 Am. Rep. 599 ; Wibert v. New York & E. R. Co., 12 N. Y. 245 ; Keeney v. Grand Trunk R. Co. of Canada, 47 N. Y. 525. Dob.Bailm. — 21 322 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 It is said that the discrimination resulting from a refusal to serve one shipper di ffers from the discrimination when the carri er serves one shipper better than anoth er- only i n degree and not in kind. 42 The public nature of the common carrier's cal ling fo r- "dT3's any partiality in his service which might easily be" used to foster monop-oites-crf-to ynisfr tfrelrastn^sT'ol^ffdfvtdTrals oTev en cothmunfties.* 3 ~Not~lne rely absolute fairness is "required" in each case, but comparativ e fairness when that case is contrasted wi th another. As "was said of railroad companies in an Indiana case : rt "Every one constituting a p art of the pub lic for whose use they are constructed is entitled to an equal and i mpartial p ar fir-ipati nn in the use of the faa BHelOar transportation which they. . .afford." In the rule that no favors, no_ distinctio ns, are p ermissible betwe en shippers as-tQ.the-xarji£r'.s-fa cilities. the wnr.fl "fa.r.i1itjes" \? h«pH in its broade st sen se. It includes, no t only rolling stoc k, but sta- tional facilities, w arehouses, do cks^ pens for facilitating the load- ing of animals, as well as the many and varied appliances and in- strumentalities used in his vast business by the modern carrier. 42 "That is not, In the ordinary legal sense, a public highway, in which on e man is unreasonably privileged to use a^convemSatTRaJ^a^jEoIEeESj^ reasonaDiy restxIcFe~d t6~ffie~guT£er; "and that_is_not_a-nnhliP. se.ry.jpfi nf comrnon"caTrit^er r iH*~W , Wc!r one ~efi joys lijTunreasonafole pre££E£nGfi-or ad- vantage, r -and-^anotBeirjsiiffers an unreasonable prejudice or disadvantage A denial of the e ntire right of service," W a' refusal to carry, differs,-if at all, in degree pnlyTand me amount of damage fl rmg, athI tiq^ ip j,hfi pggpTiHni legaFcharacter of the, actTf rom aT'denia.l of the right In. part by anunreason- able discrimiaaiion_Jn Jerm^facilities, or .accommodations. Whether the denial is general, by refusing to furnish any transportation whatever, or special, by refusingtocaray_one ^person j)r Jhis goods ; whether it is direct, by expfessTy'refusing to carry, or indirect^ by imposing such unreasonable terms, facilities, or accommodations as render carriage undesirable; wheth- er unreasonableness of terms, facilities, or accommodations operate as a total or a partial denial of the right; and whether the unreasonabJenessJs_in_the intrinsic, individual nature of the terms^ facilities, or aecommodatiaas, nr in theirlBscrimfnatlng, Tr6TIective,_ and comparative characjBj' r -thejight de- nied T?^e_and_ the^ sameJcomnjon right,. ..wWsh. would , npt be a rightST it could be rightfully denied, and would not be common, in the .lggsLsensejff' it could be legally subjected to unreasonable discriminafion^jmdLpScSeff" out among men in unreasonably superior and inferior grades aj Tthe beEest of the Servant "from whom the service is due." McDTiffee v. Portlana™ffi R- K. R., 52 N. H. 430, 450, 13 Am. Rep. 72. « As to the service of communities and the distribution of facjlitiggL be- tween different stations and parts" of "the" carrier's lines, see Ballentine v. North Missouri R. Co., 40 Mo. 491, 93 Am. Dec. 315; Ayres v. Chicago 4 N. W. Ry. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226; Martin v. Great Northern Ry. Co., 110 Minn. 118, 124 N. W. 825; Chicago, St L. & P. R. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451, 50 Am. Rep. 320. « Louisville, E. & St. L. Con. Ry. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105. § 115) DUTY TO FUBNISH EQUAL FACILITIES TO ALL 323 The shipper, then, can in this respect demand, not only service from the common carrier, but service that is fair, equal, and im- partial, involving no invidious distinctions, differences, favors, or preferences. The common 1,aw nn **"'■»- mtijac.* hat hp,e,n. fortified S nf1 Pvtenrl- ed by statutes, both state and f ederal. Thus it is expressly pro- hibited by section 3 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) in the broadest and clearest terms, and not a few cases have been brought before the Interstate Commerce Commission involving such pref erences, either as between individual shippers or com- munitieTT** "The Express Cases" The question has been frequently before the courts, resulting in conflicting decisions, as to the legal right of ,, a. railroad com- pany to gjran£jay-. can.txa.ct,. to. one express . company Jhejex£i^ive iise^TTts_ passenger Jjains .Jox, the carrying, fla*..glJhfi„expre.&s company's business, and a denial, of this privilege Jta,.alL other express^companies. In several of the ea rlier cas es, in ^Maine, 46 New Hampshire, 47 and Pennsylvania, 48 t his right on th e part of the railroad wa s denied, as giving an undue prefer ence." The U nited States Supreme Cou rt, however, in what are known as the "Express Cases." °" upheld the right, and this is now t he accepted doctrine. The Supreme Court held t hat the duty was owed to the pub lic to provide facilitie s for the_ pji^ej^handjinj»_pf express business, and not to the express companies to provide them^with^^qliirilacillties "2oZI KalTd1in" f~t Keir busines s7~~~ rr While railroad companies must furnish jlie public with an express serv- ice, such companies are not obliged to i'urnis^'^cpressfacifities to 45 For an extended discussion of the provisions of section 3 of this act, see Judson on Interstate Commerce (2d Ed.) §§ 221-287. 4« New England Exp. Co. v. Maine Cent Ry. Co., 57 Me. 188, 2 Am. Rep. 31; International Exp. Co. v. Grand Trunk Railway Co. of Canada, 81 Me. 92, 16 Atl. 370. 47 McDuffee v. Portland & R. R. R., 52 N. H. 430, 13 Am. Rep. 72. 48 Sandford v. Catawissa, W. & E. Ry. Co., 24 Pa. 378, 64 Am. Dec. 667. 4» This seems to be the English doctrine. Parker v. Ry. Co., 7 M. & G. 253; Pickford v. Ry. Co., 10 M. & W. 399. See, also, in support of this doctrine, 1 Wyman, Pub. Serv. Corporations, §§ 477-480. bo Memphis & L. R. R. Co. v. Southern Exp. Co., 117 TJ. S. 1, 6 Sup. Ct. 542, 628, 29 L. Ed. 791. Two justices, Miller and Field, dissented. The Ex- press Cases overruled vjhat had been the' doctrine declared by the inferior federal courts. See Southern Exp. Co. v. Memphis & L. R. R. Co. (C. C.) 2 Mc- Crary, 570, 8 Fed. 799; Wells, Fargo & Co. v. Northern Pac. Ry. Co. (C. C.) 23 Fed. 469. 324 LIABILITIES OF THE COMMON CARRIER OB 1 GOODS (Ch. 10 all ap plying for _lhgm, but that they perform their whole duty to the public aTTarge, and to each individual, when they afford the public all reasonable accommodations. If this is done, the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose." The inconveniences have also been pointed out which would follow if railroads were compelled to furnish equal faci lities on t heir passea ger_t rains to all express co mpajf^s"which"~duly ap- plied for the privilege. Accordi ngly, if the public, to whom the c arrier's duty is owed, is efficiently served, the dijcontgnteT.ex- press^company shouIcTnot be heardTo complai n merely because it is not permitted to perform the service." LIABILITY OF THE CARRIER FOR LOSS OF, OR DAM- AGE TO, THE GOODS 116. The common carrier is an insurer of goods carried in that capacity against all loss or damage except that caused by: EXCEPTIONS: (1) The act of God. (2) The public enemy. (3) The act of the shipper. (4) Public authority. (5) The inherent nature of the goods. Even when the loss is caused by one of the excepted perils against which the common carrier is not an insurer, he is nevertheless liable if he fails to use reasonable care either to avoid such peril or to minimize the loss after the goods are actually exposed to the peril. 5i Pfister v. Central Pac. Ry. Co., 70 Cal. 169, 11 Pac. 686, 59 Am. Rep. 404; Sargent v. Boston & L. R. Co., 115 Mass. 416. In Atlantic Exp. Co. v. Wilm- ington & W. R. Co., Ill N. C. 463, 16 S. E. 393, 18 L. R. A. 393, 32 Am. St Rep. 805, it was held that a statute providing that it shall be unlawful for any common carrier to give any unreasonable preference to any particular person, company, or locality, or any particular description of traffic, or to subject any person, company, or locality, or any particular description of traffic to any undue disadvantage, did not change or enlarge the duty im- posed on railroad companies by the common law, under which they are not obliged, because they furnish facilities to one express company, to furnish other express companies with facilities for doing an express business on their roads, the same in all respects as they provide for .themselves, or afford to any particular express company, where such railroad companies have never held themselves out as common carriers of express companies. A regulation concerning freight rates, which provides that no railroad company shall, by reason of any contract, with any express or other company, refuse to act as § 116) LIABILITY FOE LOST OR DAMAGED GOODS 325 By the common law the common carrie r is, with certain ex- ceptions, an insurer of tVip fronds intryjstpH tn him According to the very early cases, 62 the only exceptions to the common car- rier's liability as an insurer of the safe delivery of the goods were : (1) The act of God ; and (2) the public enemy." To these, however, native justice and the genius of our jurisprudence have added: (3) The act of the shipper'^ (4) public authority"; and (5) inher- ent nature of the goods." As we have already seen, the n rr\ in ^ r y ha ; W is required to ex- e rcise, a_£ei^am-d^sree-olxar-e T --a^d -h-e-46-Iiablf; nnly for a., failure to exercise this degree of c are. His liability is therefore confined to a b reach of dut y, o r neg ligence. Considerations of public policy seemed to demand a higher measure of responsibility on the part of thecommon carrier of goods He is accordingly, with the exceptions mentionedTTieTd liable at all hazards for loss or dam- age, regardless of how inevitable was the accident causing it or what degree of care he has exercised. He is, with the exceptions in question, an msmer of ice- safe delivery of_ the goods. The com- mon carrier's responsibility is thus measured" by an entirely djf- a common carrier, to transport any article proper for xransport&tion by the train for which it is offered, does not require railroad companies to furnish an express company with facilities for carrying on its business on their roads, but simply requires them to transport articles. Id. 62 COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1 ; Riley v. Home, 5 Bing. (Eng.) 217. The common law duty is similarly phrased in many modern cases, though all five of the exceptions are recognized. A carrier is not only liable at common law for loss occur- ring through the negligence of itself or its servants or agents, but, in ad- dition, is liable for loss occurring from fire, robbery, accident not attributa- ble to negligence, or any cause other than the act of God or of public enemies. Oregon Short Line Ry. Co. v. Blyth, 19 Wyo. 410, 118 Pac. 649, 119 Pac. 875, Ann. Cas. 1913E, 288. A common carrier must use strictest care and deliver safely at the destination; he being regarded as an insurer, excusable from liability only for an act of God or public enemies. Klair v. Philadelphia, B. & W. R. Co., 2 Boyce (Del.) 274, 78 Atl. 1085. " 1 Hutch. Carr. § 265; Van Zile, Bailm. & Carr. f 466; Goddard, Bailm. & Carr. § 231. A carrier, being an insurer, may not escape liability for non- performance of the contract of transportation, except by showing that a failure to transport or deliver arose from an act of God or the public enemy, or public authority, act of the shipper, or from the intrinsic nature of the property itself. Wells v. Great Northern Ry. Co., 59 Or. 165, 114 Pac. 92, 116 Pac. 1070, 34 L. R. A. (N- S.) 818, 825. See, also, J. H. Cownie Glove Co. v. Merchants Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 4 L. R. A. (N. S.) 1060, 114 Am. St. Rep. 419 ; Southern Ry. Co. v. Levy, 144 Ala. 614, 39 South. 95; Central of Georgia Ry. Co. v. Lippman, 110 Ga. 665, 36 S. E. 202, 50 L. R. A. 673 ; Lacey v. Oregon Ry. & Nav. Co., 63 Or. 596, 128 Pac. 999; Henry Bromschwig Tailors' Trimming Co. v. Missouri, K. & T. Ry. Co., 165 Mo. App. 350, 147 S. W. 175. 326 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 ferent type of standard from that of the ordinary bailee. The former's liability, we say, is measured in terms o f insuranc e : the latter's liability, in terms of negligence. Hence, when loss or in- jury occurs, the o nly defense op en_tQ_the.£onimo n carrier of go ods is to^siiaw-lhat~&uch-Jass--Qtinjury was due-ta. one, nf thp five excepted perils. Reason of the Rule The reason for the rule imposing so stringent a liability upon common carriers of goods is thus stated by Lord Holt in the great case of COGGS v. BERNARD: 64 "The law charges this person [the common carrier] thus intrusted to carry goods a gainst all ac ts but acts of God and the enemies of the king. For, though the force be~ever so great, asTFari irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic es- tablishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of deal- ing; for els e these carr iers might have an opportunity-©f-4mdoiiig all persons_tbji^ad_any dealings with them, or combining with thieyes^etc, and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the_reasoii the law isJqunded_upon on_that point" Speaking on the same subject, "CETef Justice Best, in Riley v. Home," said : "When goods are delivered to a carrier, they are usually no longer under the eye of the owner. He seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collu- sion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier which immedi- ately arises out of his contract to carry for a reward — namely, that of taking all reasonable care of it — the responsibility of an insurer." Though these reasons are by no means so cogent as when these opinions were written, owing to rapid advances in civilization and methods of transportation, yet, as the power and importance of the carrier have grown apace, other considerations have justi- fied the expediency and practical wisdom of the common-law rule. 58 si 2 Ld. Kaym. (Eug.) 909, 918, Dobie Cas. Bailments and Carriers, 1. Be 5 Bing (Jflng.) 217. b« Roberts v. Turner, 12 Johns. (N. Y.) 232 ; Thomas v. Boston & P. B. Corp., 10 Mete. (Mass.) 472, 43 Am. Dec. 444 ; Hollister v. Nowlen, 19 Wend. (N. T.) § 116) LIABILITY FOB LOST OR DAMAGED GOODS 327 This remains, accordingly, in the absence of statute or special contract, the test of the liability of the common carrier of goods. 07 Retention of Custody by Shipper - ':li.f;1^7~-^.-'-— Where the shipper does not put the goods in the exclusive cus- tody and control of the carrier, but, on the contrary, the_sJiip_per himsdf_jir_his-_s£iyant accompanies them and retains possession of tHe^then the extraordinary: liability ..q£ a. -common .carrier, does not attach". 58 The unusual liability is imposed on the common car- rier only when there is a bailment of the goods. If, therefore, the shipper retains possession of the goods, there is no_real_deliyery t o the carrie r, and w'^gnUsnrh a deliver;'- to-b in M^ ta - g '? r "'«*r i g not clo thed with his extraordinary respo nsibility. This liability pre- supposes a trust reposed in the carrier by vesting him with pos- session of the goods." Then, too, to be thus responsible, the car- rier must'be given a control over the goods commensurate with his responsibility. Thus, where one who shipped goods by boat, put a guardian on board, who locked the hatches, and went with the goods to see that they were delivered safely, the owner of the boat was held not liable as a common carrier, because there was no trust reposed in the carrier, and the goods were to be considered as having been in the possession of the shipper's servant rather than in the pos- 234, 32 Am. Dee. 455 ; Blkins v. Boston & M. R. Co:, 23 N. H. 275 ; Moses v. Boston & M. R. R,, 24 N. H. 71, 55 Am. Dec. 222; Henry Bromschwig Tailors' Trimming Co. v. Missouri, K. & T. Ry. Co., 165 Mo. App. 350, 147 S. W. 175. 57 Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235 ; MERRITT v. EARLE, 29 N. T. 115, 86 Am. Dec. 292, Dobie Cas. Bailments and Carriers, 188; Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 Am. Dec. 521 ; Colt v. McMechen, 6 Johns. (N. Y.) 160, 5 Am. Dec. 200 ; Wood v. Crocker, 18 Wis. 345 ; Welsh v. Pittsburg, Ft. W. & C. R. Co., 10 Ohio St. 65, 75 Am. Dec. 490; Parker v. Flagg, 26 Me. 181, 45 Am. Dec. 101 ; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349 ; Hooper v. Wells, Fargo & Co., 27 Cal. 11, 85 Am. Dec. 211; Adams Exp. Co. v. Darnell, 31 Ind. 20, 99 Am. Dec. 582; Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45 ; Daggett v. Shaw, 3 Mo. 264, 25 Am. Dec. 439 ; Farley v. Lavary, 107 Ky. '523, 54 S. W. 840, 21 Ky. Law Rep. 1252, 47 L. R. A. 383 ; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721 ; The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41. is Tower v. Utica & S. R. R. Co., 7 Hill (N. Y.) 47, 42 Am. Dec. 36; East India Co. v. Pullen, 1 Strange (Eng.) 690. Thus, where a steerage passenger in a ship retained exclusive possession and custody of his trunk, and trusted to his own care and vigilance to protect it against loss, the shipowner was held not to be liable as a common carrier. Cohen v. Frost, 2 Duer (N. Y.) 335. «» 1 Hutch. Carr. § 110. 328 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 session of the carrier. 80 In Wyckoff v. Queens County Ferry Co." it was said : "A ferryman is not a common carrier of the property retained by a passenger in his own custody and under his. own con- trol, and liable as such for all losses and injuries except those caused by the act of God or the public enemies. * * * The lia- bility of a common carrier, in all its extent, only attaches when there is an actual bailment." But the mere fact that the owner or his servant accompanies the goods, or is active in watching over them, does not of itself nega- tive the carrier's liability as an insurer, if the goods have been de- livered to the carrier, so that their custody and control are vested in him. 82 When, however, possession is retained by the shipper, there is no bailment, and the carrier is liable, not as an insurer, but solely for any loss or damage that is due to his negligence. Act of God ? Where goods have been lost or injured by what is known in legal phraseology as the "act of God," the common carrier is not liable. 63 While the authorities are unanimous in recognizing the exception, they are consistent neither in the d efiniton. n or in the application of Jhejterm. Th e meaning of "act of God" in this c.o n- nection, however, is a practical jrathex than a 4ihilo^p_pbiGaV s P ecu - latiye or theological "question. UpoiTTriis point there are at least two well-defined theories. According to the so-called "passive theory" the term "act of God" includes all, occjirrences due to natural causes with out the int er- vention of any huma n_agency. As" the broader and saner rule, this has the support of a large majority of the cases, 84 and is regarded •o East India Co. v. Pullen, 1 Strange (Eng.) 690. «i 52 N. T. 32, 11 Am. Rep. 650. «2Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Brlnd v. Dale, 8 Car. & P. (Eng.) 207 ; Robinson v. Dunmore, 2 Bos. & P. (Eng.) 416. This question frequently arises in shipments of live stock. See post, § 119. «3 Forward v. Pittard, 1 T. R. (Eng.) 27; Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 ; Blythe v. Denver & R. G. R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St Rep. 403 ; Fergusson v. Brent, 12 Md. 9, 71 Am. Dec. 582; Ferguson v. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129; Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322 ; Wald v. Pittsburg, C. & St. L. R. Co., 162 111. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332. o* Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235; Smyrl v. Niolen, 2 Bailey (S. C.) 421, 23 Am. Dec. 146; Faulkner v. Wright, Rice (S. C.) 107; MERRITT v. EARLE, 29 N. T. 115, 86 Am. Dec. 292, Dobie Cas. Bail- ments and Carriers, 188; Trent Nav. Co. v. Ward, 3 Esp. (Eng.) 127; Mc- Arthur v. Sears, 21 Wend. (N. Y.) 190; Ewart v. Street, 2 Bailey (S. 0.) 157, 23 Am. Dec. 131; Backhouse v. Sneed, 5 N. C. 173; Nugent v. Smith, 1 C. P. Div. (Eng.) 423 ; Turney v. Wilson,,7 Yerg. (Tenn.) 340, 27 Am. Dec. 515; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec, 627. § 116) LIABILITY FOB LOST OE DAMAGED GOODS 329 with favor by most of the text-writers." 5 The ,. nar rower "active theory" limits the term to mo re or les s violent disturbances .of the elem ental forces of, nature.." sur.h. as TigBBTJngTnr "earthquakes, and does not include the gradual and more or less orderly changes in the physical world." ™" As we shall later see, even when loss or injury is due to a cause admitted to be an act of God, this will not excuse the_ccjnmon ca rrier if he has been negligent in exp_osingJhe ,.goods~ta~the .peril or in faihng^tilJninimize~-ti»e^-los4^after the act has occurred. 67 The suddenness and violence of the act, and particularly its unex- pectedness, are therefore of frequent practical importance in de- termining whether or not the carrier was negligent in failing either to anticipate the act or to escape its consequences. The more sudden and unexpected the act, the more difficult it is for the carrier to anticipate it by exercising ordinary care; the more violent the act, the harder it is for the carrier to avoid the loss or minimize the injury. Under either theory, however, "a ct of God" is a much narr ower ter m than "inevitable accident ." 68 ArTaccident may be inevitable, whether due to divine or human agency. "In evitable accid ent," the refore admits of an occurrence due to human agency ; act of God is limited to causes operating in the physical universe, dis- associated from any act of man. " Act of G od," too, is not synon- ymous with, and should therefore not be conf^edwjthjjhej^rase «"1 Hutch. Carr. §170; 2 Kent, Comm. 597; Story, Ballm. §§ 489, 490, 511 ; Goddard, Bailm. & Carr. § 232 ; Van Zile, Bailm. & Carr. § 469. so Probably the leading case in support of this view is Friend v. Woods, 6 Grat. (Va.) 189, 52 Am. Dec. 119, in which the cases of Williams v. Grant and Smyrl v. Niolon (see note 64) are expressly repudiated. In Fish v. Chap- man, 2 Ga. 349, 46 Am. Dec. 393, the court used this language: "By the act of God is meant any accident produced by physical causes that are ir- resistible, such as lightning, storms, perils of the sea, earthquakes, inunda- tions, sudden death, or illness." See, also, Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458 ; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627, discussing the absolute and relative meaning of "act of God." In the great majority of cases the questions involved do not re- quire that a distinction be made between the active and passive theories. <" Post, § 117; Bason v. Charleston & a Steamboat Co., Harp- (S. G) 2G2; Adams Exp. Co. v. Jackson, 92 Tenn. 326, 21 S. W. 666; Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. 642 ; Ferguson y. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129. 68 Forward v. Pittard, 1 Term R. (Eng.) 27; Nugent T. Smith, 1 C. P. Div. (Eng.) 19; MERRITT v. EARLE, 29 N. T. 115, 86 Am. Dec. 292, Dobie Cas. Bailments and Carriers, 188. Cf. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Central Line of Boats v. Lowe, 50 Ga. 509; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627. 330 LIABILITIES OF THE COMMON CAEEIEB OF GOODS (Ctl. 1ft "perils of the sza," so often found in marine bills of lading and insurance policies." Same — Proximate and Exclusive Cause T he courts have been very zealous in refusing to excuse the car- rier on the score of an act of God, when ther e has been any a d- mixture "of "human a s^^. TXy ^7^s : we^sive'rast seen, the underlying idea of the phrase "act of God" is th e total absence, of any act of man. Ttir nrt of Gnri, then, on which the carrier bases his ex- emption from liability, must be the proximate cause of the loss or injjuy^jiQt. a remote cause, and the_exclusiye ca use, rather tha n a mere contributingcause. 71 ~~Tnus7 where~a~ Vessel was driven against a concealed anchor in a river and was sunk, the carrier was held liable, because a human agency contributed to the accident by placing the anchor where it was at the time it was struck. 72 So ^ also, when the carrier's v es- sel was lost by striking the mast, of a.sujnken^bpat. 7 * Again," the master of a vessel, on a snowy night, grounded his ship, owing to his mistaking the light on a schooner for the lighthouse beacon, which was not burning through some neglect. 74 In holding the car- rier responsible, Cowen, J., said : "I have sought in vain for any case to excuse the loss of the carrier where it arises from human ac- tion or neglect, or any combination of such action or neglect." Same — Goods Exposed to Act of God by Unreasonable Delay The courts-ar-ejaj rly evenly divide d on the question of the com- mon carjjex^!s4iability-£or-Jp_ss_or d amage due to an. act of God, to which the goods would not have - Been exposed, save f or the car- «9 Friend v. Woods, 6 Grat. (Va.) 189, 52 Am. Dec. 119; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627 ; The Majestic, 166 U. S. 375, 17 Sup. Ct 597, 41 L. Ed. 1039. io Ante, pp. 328-329. 7i King v. Shepherd, 3 Story, 356, Fed. Cas. No. 7,804; Green-Wheeler Shoe Co. v. Chicago, R. I. & P. Ky. Co., 130 Iowa, 123, 106 N. W. 498, 5 h. R, A. (N. S.) 882, 8 Ann. Cas. 45; Hart v. Allen, 2 Watts (Pa.) 114; Alabama Great Southern R. Co. v. Quarles, 145 Ala. 436, 40 South. 320, 5 L. R. A. (N. S.) 867, 117 Am. St. Rep. 54, 8 Ann. Cas. 308 ; Packard v. Taylor, 35 Ark. 402, 37 Am. Rep. 37; Michaels v. New York Cent R. Co., 30 N. Y. 564, 86 Am. Dec. 415 ; Ewart v. Street, 2 Bailey (S. C.) 157, 23 Am. Dec. 131 ; Sprowl v. Kellar, 4 Stew. & P. (Ala.) 382; Blythe v. Denver & R. G. R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403. " Trent Nav. Co. v. Ward, 3 Esp. (Eng.) 127. it MERRITT v. BARLE, 29 N. Y. 115, 86 Am. Dec. 292, Dobie Cas. Bail- ments and Carriers, 188. i* McArthur v. Sears, 21 Wend. (N. Y.) 190. A like decision was reached when a boat was lost by running on a piece of timber projecting from a wharf which was not visible at ordinary tides. New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. Law, 697, 64 Am. Dec. 394. § 116) LIABILITY FOR LOST OB DAMAGED GOODS 331 rier's negligent and unreasonable delay. If the casualty could have~T>een foreseen" -and "avoide3~Dy — the exercise of reasonable care, or if, by exercising like care, the casualty couldjiaye been avoidedjSexShVdan geFbecam e apparent, then the courts agree in prdnomicjn^the^ommon carrleFlTabTe.' 715 TTSrTeTeTTlis" to The "ex- cepted perils, the earn er must j iise reasonable care to avert or minimizej oss f, or injury t o, the goods resulting from such perils. The conflict of authority arises, when, though_l he loss or injury wo uld not h ave occurred but for [ the i ne gli g e nt dela y, the carrier, by the exercise o:Treasonable care, could not n ave~anticipj ! tsd the operation oTt he act of God, and could'n^hayjg^ayo^de^.ti^e,.lasg or, inju ry after the danger be came apparent. By what is believed to be the weight of authority, tn e carrier in such cases is not liable^ on t he ground that the act of God and not the delay w as thp proxi- mate cause of the lpss or in jury. 76 This seems sound, for the delay is, from a practical standpoint, a mere condition of s uch k>ss" "or injury rat her than a caus e. The can it!r,""as to the delay, was neg- ligent, it is true ; but the lo ss or injury did not resu lt f itln»r nat^yal- ly or prpyiniatply frnrn snrh nep-liyenr e! The law, in fixing respon- sibility, looks not to a more or less remote condition, but to a present, operating, and efficient proximate cause. A f>reat m a"y rnurt^ hm yever. under such circumstanc es, h old the carrier liabl e. 77 These cases decline to distinguish between " Grier v. St. Louis Merchants' Bridge Terminal Ry. Co., 108 Mo. App. 565, 84 S. W.. 158 ; Baltimore & O. Ry. Co. v. Keedy, 75 Md. 320, 23 Atl. 643. re Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Hoadley v. Northern Trans- portation Co., 115 Mass. 304, 15 Am. Rep. 106; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695 ; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; McClary v. Sioux City & P. R. Co., 3 Neb. 44, 19 Am. Rep. 631. And see Caldwell v. Southern Express Co., 1 Flip. 88, Fed. Cas. No. 2,303; Col- lier v. Valentine, 11 Mo. 299, 49 Am,. Dec. 81; Northern Pac. Ry. Co. v. Kempton, 138 Fed. 792, 71 C. C. A. 246; Scheffer v. Washington City, V. M. & G. S. Ry. Co., 105 U. S. 249, 26 L. Ed. 1070; Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322; Read v. St. Louis, K. C. & N. R. Co., 60. Mq. 199; Gulf, C. & S. F. R. Co. v. Darby, 28 Tex. Civ. App. 229, 67 S. W. 129; Moffatt Commission Co. v. Union Pac. Ry. Co., 113 Mo. App. 544, 88 S. W. 117 ; Yazoo & M. V. R. Co. v. Millsaps, 76 Miss. 855, 25 South. 672, 71 Am. St. Rep. 536. « Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Michaels v. New York Cent. R. Co., 30 N. Y. 564, 86 Am. Dec. 415,; Condict v. Grand Trunk R. Co., 54 N. Y. 500 ; Hewett v. Chicago, B. & Q. R. Co., 63 Iowa, 611, 19 N. W. 790; Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 199; McGraw v. Bal- timore & O. R. Co., 18 W. Va. 361, 41 Am. Rep. 696 ; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527 ; Michigan Cent. R. Co. v. Curtis, 80 111. 324 ; South- ern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256 ; Wald v. Pittsburg, C, C. & St. L. R. Co., 162 111. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 the negligent delay and act of God as to their comparative near- ness or efficiency in the scale of causation in producing the loss or injury. Th e carrier is accordingly held responsible as his negli- gence contributed, in a measure at least r to the loss ot. of"lh|uT v tq, t he goo ds! The basis of the carrier's liability here is sometimes placed* on the score that the carrier's negligent delay has the same effect as a wr ongful deviation, which, as we shall see, renders the ca rrier abs olutely liable even for loss pr_jnjujxxs§ ulting from the excepted perils.™*" But" this unusual responsibility is imposed only as "the result' of the exercise by the carrier of some unlawful act of dominion over the goods, inconsistent with another's ownership, equivalent to a conversion. It seems clear that a mere negligent delay by the carrier falls far short of this. Illustrations — What is, and What is Not, an Act of God Lightning, 79 tempest, 80 earthquake, 81 extraordinary flood, 82 un- usual snowstorm, 83 severe gale 84 of wind, are clearly acts of God under either the active or passive theories. Under the broader pas- sive theory, the ear ner wa s excused on the basis of an act of God, where his vessel struck on a hidden rock," the position of which 332 ; Bibb Broom Corn Co. v. Atchison, T. & S. F. R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St Rep. 361, 3 Ann. Cas. 450; Green- Wheeler Shoe Co. y. Chicago, R. I. & P. R. Co., 130 Iowa, 123, 106 N. W. 498, 5 L. R. A. (N. S.) 882, 8 Ann. Cas. 45; Alabama Great Southern R. Co. v. Quarles et al., 145 Ala. 436, 40 South. 120, 5 L. R. A. (N. S.) 867, 117 Am. St. Rep. 54, 8 Ann. Cas. 308. 78 See 1 Hutch. Carr. § 301. »» Forward v. Pittard, 1 Term R. (Eng.) 27, 33. so Gillett v. Ellis, 11 111. 579. 8i Slater v. South Carolina Ry. Co., 29 S. C. 96, 6 S. B. 936. 82 Dong v. Pennsylvania Ry. Co., 147 Pa. 343, 23 Atl. 459, 14 L. R. A. 741, 30 Am. St. Rep. 732 ; Wald v. Pittsburg, C, C. & St L. Ry. Co., 162 111. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St Rep. 332 ; Ferguson y. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129; Lovering v. Buck Mountain Coal Co., 54 Pa. 291; Nash- ville & C. R, Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. 594 ; Davis v. Wa- bash, St D. & P. R. Co., 89 Mo. 340, 1 S. W. 327; Norris v. Savannah, F. & W. R. Co., 23 Fla. 182, 1 South. 475, 11 Am. St. Rep. 355; Smith v. West- ern Ry. of Alabama, 91 Ala. 455, 8 South. 754, 11 L. R. A. 619, 24 Am. St. Rep. 929. A flood such as has occurred but twice In a generation is an act of God. Pearce v. The Thomas Newton (D. C.) 41 Fed. 106. sa Black v. Chicago, B. & Q. R. Co., 30 Neb. 197, 46 N. W. 428; Feinberg v. Delaware, L. & W. R. Co., 52 N. J. Law, 451, 20 Atl. 33 ; Chapin v. Chicago, M. & St. P. R. Co., 79 Iowa,, 582, 44 N. W. 820. si Blythe v. Denver & R.'g. R. Co, 15 Colo. 333, 25 Pac. 702, 11 L. R A. 615, and notes, 22 Am. St. Rep. 403. See, also, Miltimore v. Chicago & N. W. R. Co., 37 Wis. 190; New England & S. S. 8. Co. v. Paige, 108 Ga. 296, 33 S. E. 969 ; Gulf, a & S. F. Ry. Co. v. Compton (Tex. Civ. App.) 38 S. W. 220. 88 Williams v. Grant, 1 Conn. 487, 7 Am. Dec 235. § 116) LIABILITY FOB LOST OB DAMAGED GOODS 333 had not before been known or charted, and also when his boat was sunk by a snag lodged 8e in the river by a freshet. In a state hold- ing ^othe^^tiy^jh^oj^TjJiojweyejr^hese t wo cases were expr essly repudiated, and the camerjiyas^ held jiable when hi s boat- ran, on a bar formed by a rise ..amLan. ics-gorge at the mouth of a tribu- tary river. 87 The United States Supreme Court refused to excuse the carrier for injury to goods due to a landslide in a railroad cut caused by a loosening of the superficial earth owing to an ordinary rain, holding that the carrier was negligent in not foreseeing and providing against such ordinary occurrences. 88 The celebrated Johnstown flood of 1889, due to the unexpected breaking of a dam, was held to be an act of God. 89 Fires, not caused by lightning, 80 and boiler ex plosio ns, 91 are he ld not to be acts of God, owing to the interposition ofhuman agency. The sameTreason is assigned for similar holdings in cases involving the shifting of buoys " 2 and collisions on land. 88 Col- lisions at sea are likewise held not to be acts of God, but the car- rier may be excused when such collision is due to the action of a tempest. In such case, the tempest, and not the collision, is treat- ed as the act of God proximately causing the loss or injury. 94 so Smyrl v. Niolon, 2 Bailey (S. C.) 421, 23 Am. Dec. 146. 87 Friend v. Woods, 6 Grat. (Va.) 189, 52 Am. Dec. 119. as Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 Sup. Ct 859, 35 L. . Ed. 458. so Long v. Pennsylvania Ry. Co., 147 Pa. 343, 23 Atl. 459, 14 L. R. A. 741, 30 Am. St. Rep. 732; Wald v. Pittsburg, C, 0. & St L. R. Co., 162 111. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332. »o Forward v. Pittard, 1 Term R. (Eng.) 27, 33 ; Condict v. Grand Trunk R. Co., 54 N. T. 500; Miller v. Steam Nav. Co., 10 N. Y. 431; Parsons v. Monteath, 13 Barb. (N. Y.) 353; Patton's Adm'rs v. Magrath, Dud. (S. C.) 159, 31 Am. Dec. 552; Gilmore v. Carman, 1 Smedes & M. (Miss.) 279, 40 Am. Dec. 96; Moore v. Michigan Cent. R. Co., 3 Mich. 23; Cox v. Peterson, 30 Ala. 608, 68 Am. Dec. 145 ; Hyde v. Trent Nav. Co., 5 Term R. (Eng.) 389. Contra, Hunt v. Morris, 6 Mart. O. S. (La.) 676, 12 Am. Dec. 489. The Chicago fire was held not to be an act of God in Chicago & N. W. R. Co. v. Sawyer, 69 111. 285, 18 Am. Rep. 613. Carriers using steam are liable for losses by fire. Garrison v. Memphis Ins. Co., 19 How. 312, 15 L. Ed. 656; New Jer- sey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; Patton's Adm'rs v. Magrath, Dud. (S. C.) 159, 31 Am. Dec. 552. 9i The Mohawk, 8 Wall. 153, 19 L. Ed. 406; Bulkley v. Naumkeag & Cot- ton Co., 24 How. 386, 16 L. Ed. 599. 92 Reaves v. Waterman, 2 Spear (S. C.) 197, 42 Am. Dec. 364. 93 1 Hutch. Carr. § 281. 9* 1 Hutch. Carr. § 281. In river navigation, ordinarily collisions are like those on land, due to human agency, and thus do not excuse the carrier as acts of God. Plaisted v. Boston & K. Steam Nav. Co., 27 Me. 132, 46 Am. Dec. 587 ; Mershon v. Hobensack, 22 N. J. Law, 372. 334 LIABILITIES OF THE COMMON CAEEIEE OF GOODS (Ch. 10 A casual inspection of the cases will show that exemption from liability owing to an act of God is much more frequent in the case of carriers by water than in the case of carriers by land. Public Enemy Common ca rriers are not insurers against losses c aused by th e acts of the public enemy.* 1 ' 6 The term "public enemy" means an organized military"or naval ..force, w ith which the country of the carrier is atwar," anH pirates. 97 who are, remarried as trm crm^nn enemies of all mankind (hostes humani generis). Losses by thieves anbT robbers," strikers, rioters, and the like, however numerous, powerful, or well organized these may be, do not fall within the exception. 88 Common carriers are liable for losses caused by a mere rebellion or insurrection," unless it assumes the proportions of a civil war, and involves the recognition of belligerent rights by the combatants, as in the case of the American Revolution or the late war between the states. 1 A formal declaration of wa r is no t » 6 Russell v. Niemann, 17 C. B. N. S. (Eng.). 163; Hubbard v. Harnden Exp. Co., 10 R. I. 244. This exception is clearly recognized in all the cases defining the common carrier's liability. so 1 Hutch. Carr. § 315; Lawson, Bailm. § 129; Story, Bailm. §§ 512, 526 ; Ang. Carr. § 200 ; Russell v. Niemann, 17 C. B. (N. S.) 163. See, also, Seligman v. Armijo, 1 N. M. 459. 0? Lawson, Bailm. § 129; Story, Bailm. § 526; Pickering v. Barkley, Style, (Eng.) 132. But see The Belfast v. Boon, 41 Ala. 50. »s COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 918, Dobie Cas. Bail- ments and Carriers, 1; The Belfast v. Boon, 41 Ala. 50; Boon v. The Bel- fast, 40 Ala. 184, 88 Am. Dec. 761 ; Lewis v. Ludwick, 6 Cold. (Tenn.) 368, 98 Am. Dec. 454; Schieffelin v. Harvey, 6 Johns. (N. T.) 170, 5 Am. Dec. 206; Watkinson v. Laughton, 8 Johns. (N. T.) 213; Morse v. Slue, 1 Vent. (Eng.) 190. Indians on the warpath are public enemies. Holladay v. Ken- nard, 12 Wall. 254, 20 L. Ed. 390. Strikers are not a "public enemy," with- in the meaning of the exception. Missouri Pac. Ry. Co. v. Nevill, 60 ArE. 375, 30 S. W. 425, 28 L. R A. 80, 46 Am. St. Rep. 208. Their interference may excuse a delay, however, for the carrier is not an insurer of prompt delivery. GREISMER v. LAKE SHORE & M. S. R. CO., 102 N. T. 563, 7 N. E. 828, 55 Am. Rep. 837, Dobie Cas. Bailments and Carriers, 206 ; Pittsburgh, Ft. W. & C. R. Co. v. Hazen, 84 111. 36, 25 Am. Rep. 422 ; Lake Shore & M. S. Ry. Co. v. Bennett, 89 Ind. 457 ; Pittsburgh, C, C. & St. L. Ry. Co. v. Hol- lowell, 65 Ind. 188, 32 Am. Rep. 63 ; Hass v. Kansas City Ft S. & G. R Co., 81 Ga. 792, 7 S. E. 629 ; Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45; Baltimore & O. R. Co. v. O'Don- nell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579. »» Missouri Pac. Ry. Co. v. Nevill, 60 Ark. 375, 30 S. W. 425, 28 L. R. A. 80, 46 Am. St. Rep. 208 ; Forward v. Pittard, 1 Term R. (Eng.) 27, 29. But see Nesbite v. Luskington, 4 Term R. (Eng.) 783. i Mauran v. Alliance Insurance Co., 6 Wall. 1, 18 L. Ed. 836 ; Nashville & C. R. Co. v. Estes, 10 Lea (Tenn.) 749 ; The Prize Cases, 2 Black, 635, 17 L. Ed. 459 ; Hubbard v. Harnden Exp. Co., 10 R. I. 244 ; Lewis v. Ludwick. § 116) LIABILITY FOE LOST OE DAMAGED GOODS 335 necessary h pwe.v.er r if artnal hostilities ex ist. * If, after entering into a contract of carriage, war breaks out between the country of the carrier and that to which the goods are to be carried, the car- rier's nonperformance of the contract of carriage will be excused. 8 Various reasons are assigned for exempting the common car- rier from liability for loss or damage due to the public enemy. 4 Thus it is said to be based on the absence of any real danger of collusion between the carrier and public enemy to defraud the shipper, and also the fact that, if the carrier were liable, he would have no recourse at law against the public enemy to recoup the loss thus suffered. With the spread of peace, and the decline of war through the recognition of its inherent barbarism, this excep- tion becomes of historical rather than practical importance. Act of the Shipper To the two original exemptions of the common carrier just dis- cussed — (1) act of God; and (2) public enemy — the courts were not slow in adding three others — (3) act of shipper; (4) public authority; (5) inherent nature of the goods — as based on the clearest principles of justice. Few things could be more directly opposed to the spirit of our law than to allow one to recover for damages brought about by his own wrong or fault. The common carrier of goods is therefore not liable for loss or damage due either to the fraud or to the negligence of the shipper. 6 Same — Concealing Value of the Goods It cannot be said that the law imposes upon the shipper the positive duty, in all cases, to disclose the value of the goods to the carrier. The shi pper, how ever, at least owes the negative 6 Cold. (Tenn.) 368, 98 Am. Dec. 454. In the war between the states the Confederate forces were neither robbers on land nor pirates by sea. Fifield v. Insurance Co. of State of Pennsylvania, 47 Pa. 166, 86 Am. Dec. 523; Mauran v. Alliance Ins. Co., 6 Wall. 1, 18 L. Ed. 836. But see Dole v. Mer- chants' Mutual Marine Ins. Co., 51 Me. 465, contra. 2 The Prize Cases, 2 Black, 635, 17 L. Ed. 459. a The Prize Cases, 2 Black, 635, 17 L. Ed. 459 ; Griswold v. Waddington, 16 Johns. (N. T.) 438; Esposito v. Bowden, 7 El. & Bl. (Eng.) 762; Reld v. Hoskins, 5 El. & Bl. (Eng.) 729, affirmed 6 El. & Bl. (Eng.) 953. <1 Hutch. Carr. § 315; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1. s While carriers in the absence of stipulation to the contrary are insurers of goods entrusted to them for shipment, they will not be so held where loss or damage results from the negligence of the shipper. Currie v. Seaboard Air Line Ry., 156 N. C. 432, 72 S. E. 493. A common carrier is not liable for the loss of goods caused by the shipper's act, whether it be one of neg- ligence or accident. American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 124 Tenn. 57, 134 S. W. 613, 32 L. R. A. (N. S.) 323. See, also, Broadwood v. Southern Exp. Co., 148 Ala. 17, 41 South. 769; Becker v. Pennsylvania Ry, Co., 109 App. Div. 230, 96 N. T. Supp. 1. 336 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 duty, in this respect, not to deceive the car rier.* W hen ask ed the value of the goods, the shipper must be t ruthful under penalty at least" of "recovering ,aQ„gfeater_ value~than that set by him upon the goods. 7 Nor can the shipper deceive the "carrier, whether lri- tentionally or not, by the form, appearance, or nature of the pack- age in which the goods are shipped. 8 Thus, under the exception now under discussion, the carrier was excused from liability for the loss of money delivered to him by the shipper, the money being concealed in a bag filled with hay.' There was a similar decision when a diamond ring was shipped in a small paper box, tied with a string, with nothing to. inform the carrier that the bpx contained goods of exceptional value. 10 Like- wise it was held there could be no recovery for the loss of silverware delivered, without notice to the carrier, in a basket, the appearance of which indicated that its contents were merely household goods, and where the shipper re mained silent when li e hea^ th f a^-ent^ f the carrier^esigriate the shipment as one of h ousehold goo ds. 11 Ttipjparripr' s rntnp pnpatinn, his' methods of handling the goo ds. and TusTprecautions as to their safety are directly connected wi th th,e value"bf the, goods. 12 "The shipper rajmot Amwv* thr rarrkr in this respect^jgyea-Mmocently^and then recover as if there ha d been no deception. 18 o As by placing money In a box, together with articles of small value. Chicago & A. R. Co. v. Thompson, 19 111. 578; Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Kep. 442; Earnest v. Express Co., 1 Woods, 573, Fed. Cas. No. 4,248. t Phillips v. Earle, 8 Pick. (Mass.) 182. 8 Warner v. Western Transportation Co., 5 Rob. (N. Y.) 490; Orange County Bank v. Brown, 9 Wend. (N. T.) 85, 24 Am. Dec. 129; Pardee v. Drew, 25 Wend. (N. Y.) 459; Chicago & A. R. Co. v. Thompson, 19 IU. 578; Great Northern R. Co. v. Shepherd, 8 Exch. 30, 14 Eng. Law & Eq. Rep. 367; SHACKT v. ILLINOIS CENT. R. CO., 94 Tenn. 658, 30 S. W. 742, 28 L. R. A. 176, Dobie Cas. Bailments and Carriers, 190. So, where a box con- tains glass, the carrier should be informed of it. American Exp. Co. v. Perkins, 42 111. 458. See, also, generally, Relf v. Rapp, 3 Watts & S. (Pa.) 21, 37 Am. Dec. 528 ; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Hayes v. Wells, Fargo & Co., 23 Cal. 185, 83 Am. Dec. 89; St John v. Southern Express Co., 1 Woods, 612, Fed. Cas. No. 12,228. » Gibbon v. Paynton, 4 Burrows (Eng.) 2298. io Everett v. Southern Exp. Co., 46 Ga. 303. And see Sleat v. Fagg, 5 Barn. & Aid. (Eng.) 342. ii SCHACKT v. ILLINOIS CENT. R. CO., 94 Tenn. 658, 30 S. W. 742, 28 L. R. A. 176, Dobie Cas. Bailments and Carriers, 190. i2 Batson v. Donovan, 4 Barn. & Aid. (Eng.) 21; Cole v. Goodwin, 19 Wend. (N. Y.) 251, 32 Am. Dec. 470 ; Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Rep. 442; Oppenheimer v. United States Express Co., 69 111. 62, 18 Am. Rep. 596; Graves v. Lake Shore & M. S. R. Co., 137 Mass. 33, 50 Am. Rep. 282. is Michalitschke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683, 50 P«. § 116) LIABILITY FOB LOST OK DAMAGED GOODS 337 Same — When Goods are Negligently Packed or Marked by the Shipper It is the du ty of the shipper to see t hat the goods are properly- marked so a s to indicate the_d,efitinajt;ion-.and Jthe consignee. For results traceable to his own fault in this respect, the shipper and not the carrier is liable. Thus a recovery was denied the shipper when goods were missent owing to the negligence of the shipper in marking the goods. 14 The shipper's negligent marking was also held to excuse the carrier when there was a misdelivery of the goods and they were subsequently lost without fault on the car- rier's part, 15 or even when, owing to such marking, the goods were delivered to the wrong person. 16 A similar result is reached when loss or injury is due to the improper loading or packing of the goods by the shipper. 17 Thus, when a large machine was injured, owing to the method of loading it and fastening it to the car, adopted by, the shipper, no liability attached to the carrier. 18 So, also, when fragile or brittle goods were so badly packed that they were broken in ordinary transit, without fault of the carrier, the carrier was not liable. 19 Same — General Negligence of Shipper In general, it may be said that th£_.carrier_js__ not liable, .when he is no^a±Jajult r -for-4e*s-or 4amagE.j;ejttIting _from, the jault cir.neg- ligenceo^Jh^^MppjTj OL^e^ improper performance of any duty whicTTlhelattfiX„assumes. 2<) Thus, when the goods~are""injured 847; Gorham Manufacturing Co. v. Fargo, 35 N. Y. Super. Ot. 434; The Ionic, 5 Blatch. 538, Fed. Cas. No. 7,059 ; Relf v. Rapp, 3 Watts & S. (Pa.) 21, 37 Am. Dec. 528. • i* Congar v. Chicago & N. W. E. Co., 24 Wis. 157, 1 Am. Rep. 164 ; The Huntress, 2 Ware (Dav. 82) 89, Fed. Cas. No. 6,914; Erie R. Co. v. Wilcox, 84 111. 239, 25 Am. Rep. 451; Southern Exp. Co. v. Kaufman, 12 Heisk. (Tenn.) 161 ; Finn v. Western R. Corp., 102 Mass. 283. 16 Treleven v. Northern Pac. Ry. Co., 89 Wis. 598, 62 N. W. 536. is Lake Shore & M. S. Ry. Co. v. Hodapp, 83 Pa. 22. But if the carrier knows, or could reasonably be expected to ascertain, the proper direction, he could be held liable in spite of the misdirection. O'Rourke v. Chicago, B. & Q. Ry. Co., 44 Iowa, 526; Mahon v. Blake, 125 Mass. 477. 17 Klauber v. American Exp. Co., 21 Wis. 21, 91 Am. Dec. 452; Goodman v. Oregon Ry. & Nav. Co., 22 Or. 14, 28 Pac. 894; Shriver v. Sioux City & St. P. Ry. Co., 24 Minn. 506, 31 Am. Rep. 353 ; Zerega v. Poppe, Abb. Adm. 397, Fed. Cas. No. 18,213. is Ross v. Troy & B. Ry. Co., 49 Vt. 364, 24 Am. Rep. 144. is See American Exp. Co. v. Perkins, 42 111. 458. Here, too, the carrier was not informed the shipment consisted of fragile goods, easily broken in transit. so Roderick v. Baltimore & O. Ry. Co., 7 W. Va. 54; Payne v. Ralli (D. C.) 74 Fed. 563; HART v. CHICAGO & N. W. RY. CO., 69 Iowa, 485, 29 N. W. 597, Dobie Cas. Bailments and Carriers, 195. This is particularly true wnen the shipper attends to the loading or unloading of the goods. Miltimore Dob.Bailm. — 22 338 LIABILITIES OF THE COMMON CABBIES OF GOODS (Ch. 10 owing solely to the method of transportation, the carrier is not liable when the shipper himself specifically directed how the goods should be carried. 21 So, also, when the horse was killed in ship- ment owing to the intermeddling of the shipper in leaving a car window open. 22 In like manner, when the shipper retains a meas- ure of control over the goods, or accompanies the goods, either in person or through an agent, under an agreement to care for them, the carrier is not responsible for any loss or injury due solely to the shipper's negligent performance of the duties thus as- sumed by him. 28 Public Authority The carrier is, of course, subject to the police power of the state, and must yield obedience to the mandates of its courts. He is therefore properly excused for all resulting loss or damage when, in recognition of such sovereignty, he yields to the paramount public authority. 24 It would be an absurd inconsistency for the law to require the carrier, out of respect for its authority, to give up the shipper's goods, and then to hold the carrier responsible in damages for obeying its express mandate. Accordingly, when intoxicating liquors, or goods infected with contagious diseases, are seized and destroyed by the state under the police power, the carrier is not liable. 25 The carrier, before v. Chicago & N. W. K. Co., 37 Wis. 190; Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42; Ross v. Troy & B. R. Co., 49 Vt 364, 24 Am. Rep. 144; Betts v. Farmers' Loan & Trust Co., 21 Wis. 80, 91 Am. Dec. 460 ; East Tenn- essee, V. & G. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489. But see McCarthy v. Louisville & N. R. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29 ; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. B. 665, 70 Am. St. Rep. 432; Pennsylvania Co. v. Kenwood Bridge Co, 170 I1L 645, 49 N. B. 215. 2i White v. Winnisimmet Co., 7 Cush. (Mass.) 155; Wilson v. Hamilton, 4 Ohio St. 722; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 S. E. 916, 2 L. R. A. 102. 22 Hutchinson v. Chicago, St P., M. & O. Ry. Co., 37 Minn. 524, 35 N. W. 433. 2 3 Gleason v. Goodrich Transportation Co., 32 Wis. 85, 14 Am. Rep. 716; South & N. A. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578 ; McBeath v. Wabash, St. L. & P. Railroad Co., 20 Mo. App. 445. See Bryant v. Southwest- ern Railroad Co., 68 Ga. 805. 2* 1 Hutch. Carr. § 324 : Kohn v. Richmond & D. Ry. Co., 37 S. C. 1, 1« S. E. 376, 24 L. R. A. 100, 34 Am. St Rep. 726. This exception is universally recognized, though it is sometimes omitted in stating the exceptions to the carrier's common-law liability as an insurer. See, for example, Henry Brom- schwig Tailors' Trimming Co. v. Missouri, K. & T. Ry. Co., 165 Mo. App. 350, 147 S. W. 175. 2B Wells v. Maine Steamship Co., 4 Cliff. 228, Fed. Cas. No. 17,401; Bliven v. Hudson River R. Co., 35 Barb. 191 ; Id., 36 N. T. 407. The carrier is pro- § 116) LIABILITY FOH LOST OK DAMAGED GOODS 339 yielding, however, should satisfy himself as to the authority of the officer seizing the goods. 28 In like manner, the carrier is excused when the goods are taken from him by legal process, such as execution or attachment against the owner, 27 sued out in an or- dinary civil action, provided such process is fair on its face. 28 When the goods are seized under public authority, or any legal proceed- ings are instituted against them, it is the duty of the carrier to give seasonable notice of such seizure or proceedings, if that is practica- ble, to the shipper or owner of the goods, in order that such shipper tected if he yields to the paramount public authority, if it is de facto, whether or not it is de jure. Thus a yielding to the Confederate government was held an excuse. Nashville & C. Ry. Co. v. Bstes, 10 Lea (Tenn.) 749. 2« Bennett v. American Exp. Co., 83 Me. 236, 22 Atl. 159, 13 L. E. A. 33, 23 Am. St. Rep. 774. 27 This subject is discussed at length in 2 Hutch. Carr. §§ 738-748. See Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33; Bliven v. Hudson River Rail- road Co., 36 N. Y. 403; Pingree v. Detroit, L. & N. R. Co., 66 Mich. 143, 33 N. W. 298, 11 Am. St. Rep. 479 ; Furman v. Chicago, R. I. & P. R. Co., 57 Iowa, 42, 10 N. W. 272; Id., 62 Iowa, 395, 17 N. W. 598; Id., 68 Iowa, 219, 26 N. W. 83; Id., 81 Iowa, 540, 46 N. W. 1049; Ohio & M. R. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727 ; French v. Star Union Transportation Co., 134 Mass. 288; Jewett v. Olsen, 18 Or. 419, 23 Pac. 262, 17 Am. St. Rep. 745; The M. M. Chase (D. C.) 37 Fed. 708 ; Savannah, G. & N. A. R. Co. v. Wil- cox, 48 Ga. 432. But see Bingham v. Lamping, 26 Pa. 340, 67 Am. Dec. 418 ; McAlister v. Chicago, R. I. & P. R. Co., 74 Mo. 351 ; Mierson v. Hope, 2 Sweeny (N. Y.) 561. The remedy of the owner for an illegal seizure of his goods for the debt of another is not against the carrier, but against the officer making the seizure, or. against the plaintiff, if he directed the seizure. Lawson, Bailm. 131 ; Stiles v. Davis, 1 Black, 101, 17 L. Ed. 33. But it has been held, in Massachusetts, that the carrier is not excused unless the pro- ceedings be against the owner of the goods. Edwards v. White Line Transit Co., 104 Mass. 159, 6 Am. Rep. 213. See, also, Bingham v. Lamping, 26 Pa. 340, 67 Am. Dec. 418. ss Merz v. Chicago & N. W. Ry. Co., 86 Minn. 33, 90 N. W. 7; Edwards v. White Line Transit Co., 104 Mass. 159, 6 Am. Rep. 213; Kiff v. Old Colony & N. R. Co., 117 Mass. 591, 19 Am. Rep. 429; Gibbons v. Farwell, 63 Mich. 344, 29 N. W. 855, 6 Am. St. Rep. 301 ; Savannah, G. & N. A. R. Co. v. Wilcox, 48 Ga. 432. But it was held in McAlister v. Chicago, R. I. & P. R. Co., 74 Mo. 351, that a regular writ, issued under a statute afterwards declared unconstitutional, was sufficient to protect the carrier. The carrier is liable if he surrenders to an officer without a warrant. Bennett v. American Ex- press Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am! St. Rep. 774. "What ever may be a carrier's duty to resist a forcible seizure without process, he> cannot be compelled to assume that regular process is illegal, and to ac- cept all the consequences of resisting officers of the law. If he is excusable .for yielding to a public enemy, he cannot be at fault for yielding to actual authority what he may yield to usurped authority." Campbell, C. J., in Pin- gree v. Detroit, L. & N. R. Co, 66 Mich. 143, 33 N. W. 298, 11 Am. St. Rep. 479. 340 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 or owner may take such steps as he may see fit to protect his inter- ests. 28 Inherent Nature of the Goods The-cpjnmo n carrier is not an insurer a gainst lo5 S£.s..xaused by th e inherent natu re, yice^defecL-or infirmity ojLthe._gQQjisJL Thus, the carrier, w hen not himself at faul t, js not liabl e for the decay of fruit, the evaporation o( liquids, the bursting ot a hogshead of mo- lasses due to fermentation, and the like. 31 This exception from liability is said to rest on the same principle as the act of God, and, indeed, to be but an illustration of it. "Men are too apt to hear God in the thunder and storm, and ignore his existence in the still, 2» Thomas v. Northern Pac. Exp. Co., 73 Minn. 185, 75 N. W. 1120; Jewett v. Olsen, 18 Or. 419, 23 Pac. 262, 17 Am. St. Rep. 745; Bliven v. Hudson River Ry. Co., 36 N. Y. 403. «o Lester v. Railway Co. [1903] 1 K. B. (Eng.) 878, 72 D. J. K. B. 385; Lawrence v. Denbreens, 1 Black, 170, 17 L. Ed. 89 ; Rixf ord v. Smith, 52 N. H. 355, 13 Am. Rep. 42; McGraw v. Baltimore & O. Ry. Co., 18 W. Va. 361, 41 Am. Rep. 696; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. RY- CO, 163 Mo. App. 426, 143 S. W. 839, Dobie Cas. Bailments and Carriers, 196. si Currie v. Seaboard Air Line R. Co., 156 N. C. 432, 72 S. E. 493 ; R. B. PUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. RY. CO., 163 Mo. App. 426, 143 S. W. 839, Dobie Cas. Bailments and Carriers, 196; BEARD v. ILLINOIS CENT. R. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199; Gulf, C. & S. P. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. Rep. 45; Cragin v. New York Cent. R. R. Co., 51 N. Y. 61, 10 Am. Rep. 559; Louisville, N. O. & T. Ry. Co. v. Bigger, 66 Miss. 319, 6 South. 234 ; Illinois Cent. R. Co. v. Brelsford, 13 111. App. 251; The Howard v. Wissman, 18 How. 231, 15 L. Ed. 363; The Collenberg, 1 Black, 170, 17 L. Ed. 89; Swet- land v. Boston & A. R. Co., 102 Mass. 276; Warden v. Greer, 6 Watts (Pa.) 424; Powell v. Mills, 37 Miss. 691; EVANS v. FITCHBURG R. CO, 111 Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201. Peaches were delayed by an extraordinary freshet, and, as they showed signs of decay, the carrier sold them for the best attainable price, for the benefit of the owner. It was held, in an action for damages, that the carrier was not liable for the loss, as it was owing to the inherent qualities of the freight, that it was not bound to seek another route, and that it was justified in selling the property. American Exp. Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561, and note. Where potatoes were wet when shipped, and de- cayed on the voyage, .the carrier is not liable. The Howard v. Wissman, 18 How. 231, 15 L. Ed. 363. See, also, The Collenberg, 1 Black, 170, 17 L. Ed. S9; Brown v. Clayton, 12 Ga. 564. Where the leakage is from an inherent defect of a cask, the carrier is not liable. Hudson v. Baxendale, 2 Hurl. & N. (Eng.) 575. A carrier is not liable for loss of molasses caused by its fermentation and expansion, nor for leakage from secret defects in the casks. Warden v. Greer, 6 Watts (Pa.) 424. Nor where the fermentation of the molasses caused the cask to burst Paucher v. Wilson, 68 N. H. 338, 38 Atl. 1002, 39 L. R. A. 431. § 117) LIABILITY AS AFFECTED BY OABEIEB'S NEGLIGENCE 841 small voice of the calm. But the acts of God are not always cata- clysms, and 'natural decay' may as reasonably be classed under this head as 'tempests' or 'lightnings.' " 82 However, it is usual to treat this class of exceptions separately. This exception, as we shall see, 88 is of unusual importance in shipments of live stock. SAME— LIABILITY AS AFFECTED BY THE CARRIER'S NEGLIGENCE 117. Though, as we have seen, the liability imposed by law upon the common carrier of goods is that of an insurer, the questiongL-lh© carrier's ne^igen ce is important in de- termimng his liability: (1) Under the excepted perils ; (2) When the carrier's relation to the goods is that of ware- houseman; (3) When the carrier has by special contract reduced his lia- bility to that of an ordinary bailee for hire. Excepted Perils As is indicated in the black letter text under section 116, it is the duty of the common carriers to use reasonable care to avoid loss or injury, even from causes against which they are not insurers. Outside of the excepted perils, the common carrier of goods is an insurer and absolutely liable for all loss or damage. Within anjE- pf the excepted perils, the insuring liability fal ls amy; hut e ven here th e duty of exercising reasonable care still remains wft h th<» r arrip r" ine com mon carrier then p^pes .liability pnly when the loss or damagei s due to an exce pted periLjw&bojih^itiy-pnn- cufnng neghgence on his-pa rtT* This qualification is a general one applicable to all the excepted perils. The qua lifira tirm is pf particular importance, however, in co nnec- tion-HO tnthe act of Go d. The common carrier must use reason- *s Wood, Browne, Carr. § 106. »» Post, § 119. s* Campbell v. Morse, Harp. (S. C.) 468 (attempt to cross a swollen stream with an insufficient team); Bell v. Reed, 4 Bin. (Pa.) 127, 5 Am. Dec. 398 (putting to sea in unseaworthy vessel). See, also, Nelson v. Great Northern Ry. Co., 28 Mont 297, 72 Pac. 642 ; Jones v. Minneapolis & St. L. Ry. Co., 91 Minn. 229, 97 N. W. 893, 103 Am. St Rep. 507 ; Ferguson v. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129 (all of these cases involved an act of God) ; Holladay v. Kennard, 12 Wall. 254, 20 L. Ed. 390 (public enemy) ; McCarthy v. Louisville & N. Ry. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29 (negligence of shipper) ; BEARD v. ILLINOIS CENT. RY. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199 (inherent nature of goods). 342 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 able care, first, to avoid the act of God, and, next, if overtaken by such act, to minimize the loss resulting therefrom. If the carrier fail to exercise reasonable care or ordinary diligence in either of these respects, and the goods are damaged by an act of God, the carrier's negligence is treated as the proximate cause of such dam- age, and the carrier is accordingly held liable. 35 Thus, if the car- rier is negligent in exposing the goods to the act of God, as where he puts to sea in an unseaworthy vessel, 36 or attempts to cross a swollen stream after sundown with an insufficient team, 37 he is liable for the resulting loss. Again, though overtaken by the act of God, without any negligence on his part, the carrier must use ordinary care to render the loss as light as possible; and, if he is negligent in not doing so, he is liable for all losses which he niight, by the exercise of "reasonable care, have prevented. 88 Precisely similar considerations obtain as to the public enemy. The carrier remains liable for goods cap tured by ^ the public en emy when, Dy^Jhe^x^rcise^pi. reasonable care, the, ca.pture_coula have- been avoided. 88 . Thus, if the carrier, with the choice of two so See cases cited in first part of preceding note. See, also, Wolf v. Ameri- can Express Co., 43 Mo. 421, 97 Am. Dec. 406; Pruitt v. Hannibal & St J. R. Co., 62 Mo. 527; Davis v. Wabash, St. L. & P. R. Co., 89 Mo; 340, 1 S. W. 327; Elliott v. Russell, 10 Johns. (N. T.) 1, 6 Am. Dec. 306; Adams Exp. Co. v. Jackson, 92 Tenn. 326, 21 S. W. 666; Grier v. St. Louis Mer- chants Bridge Terminal Ry. Co., 108 Mo. App. 565, 84 S. W. 158; Jones v. Minneapolis & St. L. Ry. Co., 91 Minn. 229, 97 N. W. 893, 103 Am. St. Kep. 507; Ferguson v. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129. 86 Bell v. Reed, 4 Bin. (Pa.) 127, 5 Am. Dec. 398. Or when the carrier neg- ligently exposed the goods to a flood, warning of which had been duly given. Wabash Ry. Co. v. Sharpe, 76 Neb. 424, 107 N. W. 758, 124 Am. St. Rep. 823. a? Campbell v. Morse, Harp. (S. C.) 468. ss Craig v. Childress, Peck (Tenn.) 270, 14 Am. Dec. 751; Day v. Ridley, 16 Vt. 48, 42 Am. Dec. 489. The carrier need exercise only reasonable care. Nashville & C. R. Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. 594; Mor- rison v. Davis, 20 Pa. 171, 57 Am. Dec. 695 ; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Black v. Chicago, B. & Q. R. Co., 30 Neb. 197, 46 N. W. 428; Gillespie v. St. Louis, K. C. & N. R. Co., 6 Mo. App. 554; Nugent v. Smith, 1 C. P. Div. (Eng.) 423 ; The Generous, 2 Dods. (Eng.) 322. But see The Niagara v. Cordes, 21 How. (U. S.) 7; King v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804. See, also, Smith v. Western Ry. of Alabama, 91 Ala. 455,, 8 South. 754, 11 L. R. A. 619, 24 Am. St. Rep. 929; Milwaukee & St P. R. Co. v. Kellogg, 94 TJ. S. 475, 24 L. Ed. 256 ; Blythe v. Denver & R. G. R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403; Baltimore & O. R. Co. v. Sulphur Spring Independent School Dist, 96 Pa. 65. 42 Am. Rep. 529 ; Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645 ; Collier v. Valentine, 11 Mo. 299, 49 Am. Dec. 81. Where goods are wet by a storm, the carrier must open and dry them. Chouteaux v. Leech, 18 Pa. 224, 57 Am. Dec. 602. s » Forward v. Pittard, 1 Term R. (Eng.) 27; Parker v. James, 4 Camp § 117) LIABILITY AS AFFECTED BT GABBIER^ NEGLIGENCE 343 routes, along one of which he knew that the armies of the enemy were encamped, chose this route, and the goods were taken by such enemy, the carrier would be responsible. 40 Even when there has been some negligence on the part of the shipper, if there is also negligence on the part of the carrier, so that the loss or injury would not have occurred, had it not been for this fault of the carrier, then the carrier remains liable. 41 Yield- ing to pu blic authority, too, will not excuse the carrier When he is negligent in surrendering the goods^by virtue of process, illegal on" its face. 42 And, whenjie setsjupJoss,pr"damage due to inherent nature of the goo3s to shield Jbifflufforo liability, theJLass_,pr dam- age mu^t.njQt.have„heeji.due.-to-his.failure to exercise-ordinary care u nder the , circumstances. 4 ? Carriers as Warehousemen — Carrier's Liability Under Special Contract As we shall subsequently see, the relation of t he carrier t o the go ods in his possession is sometimes technicall y"not that o f com- mon carrier, but that of a warehouseman. 44 In such cases, the n, aganTTKe in suring liabilit y of th e com mon carrier tails away, and the car rieFT liability, like thatjaJLQ| h£r_^rejicaise)a en, is meas ured in terms oi negligence, and the carrier is liable^ o nly for his~ failure (Bng.) 112 ; Clark v. Pacific R. R. Co., 39 Mo. 184, 90 Am. Dec. 458 ; Southern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256. *o Express Co. v. Kenitze, 8 Wall. 342. *i Guillaume v. General Transportation Co., 100 N. Y. 491, 3 N. E. 489 ; Mahon v. Blake, 125 Mass. 477; McCarthy v. Louisville & N. Ry. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29. 42 Merriman v. Great Northern Exp. Co., 63 Minn. 543, 65 N. W. 1080 ; Nickey v. St. Louis, I. M. & S. Ry. Co., 35 Mo. App. 79 (surrender of goods to person who exhibited merely a telegram from a sheriff) ; KifE v. Old Colony & N. Railway Co., 117 Mass. 591, 19 Am. Rep. 429 ; Bennett v. Ameri- can Exp. Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774. is BEARD v. ILLINOIS CENT. R. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381, Dobie Cas. Bailments and Carriers, 199 ; Har- ris v. Northern Indiana Railroad Co., 20 N. Y. 232; Ohio & M. R. Co. v. Dunbar, 20 111. 624, 71 Am. Dec. 291; Welch v. Pittsburg, Ft. W. & C. R. Co., 10 Ohio St. 65, 75 Am. Dec. 490; Powell v. Pennsylvania R. Co., 32 Pa. 414, 75 Am. Dec. 564; Smith v. New Haven & N. R. Co., 12 Allen (Mass.) 531, 90 Am. Dec. 166; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204. As to whether a car- rier may or must give perishable property precedence in transportation, see S wetland v. Boston &A. R. Co., 102 Mass. 276; Peet v. Chicago & N. W. R. Co., 20 Wis. 594, 91 Am. Dec. 446; Tierney v. New York Cent & H. R. Co., 76 N. Y. 305; Marshall v. New York Cent. R. Co., 45 Barb. (N. Y.) 502. See, also, McGraw v. Baltimore & O. Ry. Co., 18 W. Va. 361, 41 Am. Rep. 696. ** Post, §§ 136, 144. 344 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 to exej^dseordinary care." Cases of the carrier as a warehouseman are of frequent occurrence, and here again the question of ^hat constitutes .n egligen ce is practical and important. As we shall see in the next chapter, the common carrier of goods is permitted by special contract to reduce his liability from that of an insurer to that of an ordinary bailee, in which case he is again responsible only for negligence. Such special contracts are now so common that it is probably no exaggeration to say that in the majority of shipments the liability of the carrier turns upon the question of negligence. What is Negligence on the Part of the Common Carrier of Goods T he question of negligence, then, is so often of primary im - portance , in spif f of thp .common car rier's common-law liability as an insurer, as to deniand_ atjeast b^kf consjg^ation. Negligence, onfinariIy,~as to the common carrier of goods, is judged, as in the case of ordinary bailees for hire, by the standard of the amount of care which men of ordinary prudence are accustomed to exer- cise under similar circumstances. 46 The term "negligence" is again an intensely relative one, to be decided in accordance with the infinite variety of facts that present themselves in individual cases.*' In this connection, the nature of the goods is always a p rime determinant. 48 Many goods can be transported in open cars, ex- * » Watts v. Boston & L. Ry. Corp., 106 Mass. 466; Basnight v. Atlantic & N. C. Ry. Co., Ill N. 0. 592, 16 S. B. 323; Rogers v. Wheeler, 52 N. Y. 262 ; Michigan Cent. Ry. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L. Ed. 297 ; E. O. Stanard Milling Co. v. White Line Cent Transit Co., 122 Mo. 258, 26 S. W. 704; Allam v. Pennsylvania Ry. Co., 183 Pa. 174, 38 Atl. 709, 39 L. R. A. 535; Mulligan v. Northern Pac. Ry. Co., 4 Dak. 315, 29 N. W. 659 ; Southern Exp. Co. v. Holland, 109 Ala. 362, 19 South. 66. 46 Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432; Swetland v. Boston & A. Ry. Co., 102 Mass. 276; Gillespie v. St. Louis, K. C. & N. Ry. Co., 6 Mo. App. 554 ; Morrison v. Da- vis, 20 Pa. 171, 57 Am. Dec. 695 ; Memphis & C. Ry. Co. v. Reeves, 10 Wall 176, 19 L. Ed. 909 ; Nugent v. Smith, 1 C. P. Div. (Eng.) 423 ; The Generous, 2 Dods. (Eng.) 322; Nashville & C. Ry. Co. v. David, 6 Heisk. (Tenn.) 261, 19 Am. Rep. 594. But see The Niagara v. Cordes, 21 How. 7, 16 L. Ed. 41; King v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804 ; Atlanta & W. P. Ry. Co. v. Jacobs Pharmacy Co., 135 Ga. 113, 68 S. E. 1039. *' Chouteaux v. Leech, 18 Pa. 224, 57 Am. Dec. 602 (drying wet goods); Kinnick v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 665, 29 N. W. 772 (live stock) ; Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446 (pref- erence as to perishable goods) ; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 6S9, 1 Am. St. Rep. 721 (placing car bedded with straw so close to engine as to be dangerous, owing to sparks). 48 Shaw v. Railroad Co., 18 Law J. Q. B. (Eng.) 181, 13 Q. B. 347; Root V. New York & N. E. R. Co., 83 Hun, 111, 31 N. Y. Supp. 357. Where fires are burning along the track, it is negligence to carry cotton on open cars. In- § 117) LIABILITY AS AFFECTED BY OABBIEE'S NEGLIGENCE 345 posed to the elements. Ordinary care demands that many other goods be protected from rain or sunshine. 48 Live animals require food and water. 50 Some articles suffer none when they are a long surance Co. of North America v. St. Louis, I. M. & S. B. Co. (C. C.) 3 Mc- Crary, 233, 9 Fed. 811, 11 Fed. 380. Where a package Is too large for a closed car, It is not negligence to carry it on an open car, provided reason- able diligence is used to protect it from the weather. Burwell v. Raleigh & G. R. Co., 94 N. C. 451. Where the shipper, with full knowledge, selects the vehicle, the carrier is not liable for loss caused by its insufficiency. Carr v. Schafer, 15 Colo. 48, 24 Pac. 873. The carrier must not carry goods in the same car so near that the proximity is, by the nature of the goods, likely to result in damage. The Colonel Ledyard, 1 Spr. 530, Fed. Cas. No. 3.027 (flour injured by the effluvium of turpentine) ; Alston v. Herring, 11 Exch. (Eng.) 822 (cambric goods injured by sulphuric acid). * » Where butter shipped to New Orleans in warm weather is carried in a common car, without ice or other protection, the carrier is liable for its deterioration by heat. BEARD v. ILLINOIS CENT. R. CO., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St Rep. 381, Dobie Cas. Bailments and Carriers, 199 (citing Hewett v. Chicago, B. & Q. R. Co., 63 Iowa, 611, 19 N. W. 790) ; Sager v. Portsmouth S. & P. & E. R. Co., 31 Me. 228, 50 Am. Dec. 659 ; Hawkins v. Great Western R. Co., 17 Mich. 57, 97 Am. Dec. 179 ; Id., 18 Mich. 427; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Wing v. New York & E. R. Co., 1 Hilt. (N. Y.) 235; Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Boscowitz v. Adams Express Co., 93 111. 523, 34 Am. Rep. 191 ; Steinweg v. Erie R. Co., 43 N. Y. 123, 3 Am. Rep. 673; Alabama & V. R. Co. v. Searles, 71 Miss. 744, 16 South. 255. "Having accepted the butter for transportation defendant can- not escape liability for not safely transporting it on the ground that it did not have cars sufficient for the purpose." BEARD v. ILLINOIS CENT. R. CO., supra. And see Helliwell v. Grand Trunk R, Co. of Canada (C. C.) 7 Fed. 68. Where a carrier allows ice in which poultry Is packed to melt, without renewing it, he is liable if the poultry is spoiled by heat. Peck v. Weeks, 34 Conn. 145. See, also, Sherman v. Inman Steamship Co., 26 Hun (N. Y.) 107. bo South & North Alabama R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578. Cf. Great Northern R. Co. v. Swaffield, L. R. 9 Exch. (Eng.) 132. A carrier has the duty to feed and water stock during transportation, and cannot transfer It to the shipper by a custom requiring him to go along on the same train with the stock to feed and water them at his own risk and expense. Missouri Pac. R. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776. Where the shipper agrees to accompany live stock and attend to their wants, the carrier must allow him reasonable opportunity and facilities for so doing, or the carrier will be liable. Smith v. Michigan Cent. R. Co., 100 Mich. 148, 58 N. W. 651, 43 Am. St. Rep. 440; Dawson v. St. Louis, K. C. & N. R. Co., 76 Mo. 514 ; Wabash, St. L. & P. Ry. Co. v. Pratt, 15 111. App. 177; Ft. Worth & D. C. R. Co. v. Daggett, 87 Tex. 322, 28 S. W. 525; Nashville, C. & St. L. Ry. Co. v. Heggie, 86 Ga. 210, 12 S. E. 363, 22 Am. St. Rep. 453; Duvenick v. Missouri Pac. R. Co., 57 Mo. App. 550; Taylor, B. & H. Ry. Co. v. Montgomery (Tex. App.) 16 S. W. 178 ; Gulf, C. & S. F. R. Co. v. Gann, 8 Tex. Civ. App. 620, 28 S. W. 349. "It is the duty of railway companies to provide suitable places for feeding and watering live stock transported over their lines ; and If this Is not done they are re- 346 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 1() time in transportation. Fruit and other perishable goods must be carried with expedition, and may require icing and refrigeration. 51 Proper care on the carrier's part applies not only to its track, its cars, and other vehicles used in actual transportation, but to its other equipment and instrumentalities, whether inanimate or hu- man, and to all the facilities necessary for the business in which he is engaged. 62 When the carrier adopts a car for the purposes of his sponsible for any loss entailed or that occurs from such neglect or failure. The carrier is primarily bound to provide feed and water for stock shipped over its line of railroad. [Citing Illinois Cent R. Co. v. Adams, 42 I1L 474, 92 Am. Dec. 85; Toledo, W. & W. By. Co. v. Thompson, 71 111. 434; Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268; Harris v. Northern Indiana K. Co., 20 N. Y. 232; Cragin v. New York Cent. R. Co., 51 N. Y. 61, 10 Am. Rep. 559.] In Missouri, it is held that a railroad company which trans- ports live stock ought not only to have proper facilities and machinery for unloading the stock shipped over the company's line of road whenever, in the course of the transit, it may be necessary to unload them for exercise and refreshment, but also that it is the company's duty to unload, feed, and water them at their journey's end, as well as along the route, if there be delay in delivering them to the consignee, in order to discharge the carrier from liability, if the health or necessity of the animals require this to be done. Dunn v. Hannibal & St. J. Railroad Co., 68 Mo. 268." Gulf, C. & S. F. Ry. Co. v. Wilhelm (Ky.) 16 S. W. 109. See, also, Bryant v. Southwestern B. Co., 68 Ga. 805. A car containing a horse should be set on a side tract at the request of the owner of the horse or his agent, when the persons in charge of the train are informed that the horse is frightened by the trans- portation, and is acting badly, and in danger of being killed or hurt, if it can reasonably be done. Coupland v. Housatonic B. Co., 61 Conn. 531, 23 Atl. 870, 15 L. B. A. 534. There is no obligation on a railroad company to lay out, for reloading, a car hired at a certain price for the trip, and partly filled with horses, because one of them has got down in the car, when the owner is with them, and, under the contract, is chargeable with their care, and can, if he chooses, abandon the contract altogether, or make a new one for a longer time. Illinois Cent. B. Co. v. Peterson, 68 Miss. 454, 10 So. 43, 14 L. B. A. 550. si See cases cited in note 49; Chicago, I. & L. Ry. Co. v. Reyman, 166 Ind. 278, 76 N. B. 970; Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Tucker v. Pennsylvania B Co., 11 Misc. Kep. 366, 32 N. Y. Supp. 1. Contra, where the shipper selects the vehicle. Carr v. Schafer, 15 Colo. 48, 24 Pac. 873. 52Rooth v. Railroad Co., 36 Law J. Exch. (Eng.) 83; Mason v. Missouri Pac. R. Co., 25 Mo. App. 473. Carriers of live stock must furnish proper yards and other appliances to enable the stock to be received, loaded, un- loaded, and delivered to the consignee. Covington Stockyard Co. v. Keith, 139 U. S. 128, 11 Sup. Ct 469, 35 L. Ed. 73 ; McCullough v. Wabash Western E. Co., 34 Mo. App. 23 ; Cooke v. Kansas City, Ft S. & M. R. Co., 57 Mo. App. 471. A carrier cannot require extra compensation for such facilities. Covington Stockyard Co. v. Keith, supra; Beckford v. Crutwell, 5 Car. & P. (Eng.) 242. Where a railroad company negligently fails to provide a spark con- sumer, and goods are damaged by sparks from the engine, the carrier i» liable, though by contract it was exempt from liability for loss by fire, § 118) BUEDBN OP PROOF 347 own transit he cannot escape, when liable for negligence, by plead- ing that the car belongs to another. 58 Of course, the common carrier of goods is liable for damage resulting from his breach of a contract between himself and the shipper. SAME— BURDEN OF PROOF 118. The plaintiff makes out a prima facie case of liability against the common carrier by showing the loss of, or injury to, the goods. The carrier can overcome this only by show- ing that such loss or injury was due to one of the excepted perils. According to the weight of authority, the burden of showing negligence on the part of the carrier in connec- tion with the excepted perils then rests upon the plaintiff. . The liability at common law of the common carrier of goods for loss or injury, with its limitations and the qualifications of such limitations, has been discussed at some length. There remains the question, of great practical i mpor tance, of jtfie m p^sojn_o_n_whom the law places th~e burden" of showing by_ affirmative e videnc e theleT" various incidents. ""Th e plaintiff m ja^JL-shQ»L-£.pst- that- the catj rePi? a reonr fflOglgarrjer^* though this is quite easy as to the great modern~carriers, antf Hiext a deliv e r y of the g oods to such co mmon carrier, 55 in order to fix the liability of the carrier as that of an insurer, with the well-known exceptions thereto. All that the pl aintiff is JjicjLXequiredjto showjs.lpss.of, or ^dam- ag e, to . the^_goods while in the car rier's possession. D elivery t o th e_carrie r, ;ano Hiis failure to redeliver the g ood s, after the .lapse of sufficient time for the cohipletiqn_o|_the transportation, is satis- factory proof, m the first instance, of loss. 58 Delivery of the goods Steinweg v. Erie R. Co., 43 N. Y. 123, 3 Am. Rep. 673. See, also, Empire Transportation Co. v. Wamsutta Oil Refining & Mining Co., 63 Pa. St. 14, 3 Am. Rep. 515. 6 8 Combe v. Railway Co., 31 Law T. N. S. (Eng.) 613. « * Ringgold v. Haven, 1 Cal. 108; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, Fed. Cas. No. 2,730. so Hipp v. Southern Ry. Co., 50 S. C. 129, 27 S. E. 623; United States v. Pacific Exp. Co. (D. C.) 15 Fed. 867; Pitlock v. Wells, Fargo & Co., 109 Mass. 452; Michigan S. & N. Ry. Co. v. McDonough, 21 Mich. 165, 4 Am. Rep. 466; Blanchard v. Isaacs, 3 Barb. (N. T.) 388; Truax v. Philadelphia, W. & B. Ry. Co., 3 Houst. (Del.) 233. so Griffiths v. Lee, 1 Car. & P. (Eng.) 110; Tucker v. Cracklin, 2 Stark. {Eng.) 385; Cooper v. Georgia Pac. Ry. Co., 92 Ala. 329, 9 South. 159, 25 Am. St. Rep. 59; The Priscilla (D. C.) 106 Fed. 739; Browning v. Good- rich Transp. Co., 78 Wis. 391, 47 N. W. 428, 10 L. R. A. 415, 23 Am. St. Rep. 348 LIABILITIES OF THE COMMON CARRIER OP GOODS (Ch. 10 to the carrier in good condition, and a redelivery of them by the latter in a damaged condition, is sufficient proof of injury. 57 If the evidence in the case ceases here, the plaintiff recovers against the carrier. After the proof indicated in the preceding paragraphs, the car- r ier, unless he c an disprove the facts thus established by the~plain - ti ff, can escape liability only 6y showing th at such .loss or inju ry was due tQ o neo f the fivT e^eptelTperils. 5 '' "When the liability of the common carrier of goods remains as at common law, no other evidence is relevant or in any way affects the issue between the parties. The b urden, t hen, of proximately connecting the lo ss or injury with one of the "excepted causes' is clearly upon the QarnerT""* The cases are in direct conflict, however, as , to the rlntv of pr ov- in g or dis proving thejcanjer^s_negligence in connection with t he excejpted_4?eril. As we have just seen, af ter tn"e plaintiff's pr ima f acie case, the carrier must show that one of the excepted pe rils was_ res ponsible for Jthe_, loss or injury. The mooted point is : Must he., also go further and show that ther e was no negligence on his part, in connection with the excerjted_ peril, to which the , loss or injury may be attributed? Is the carrier required to absolve himself by proving his own lack of negligence, or . is such neg li- gence a positive i.ar±..to-.be-pr-Q-y.ed-43y-the, plaiatiff ? ™ The preponderance of authority seems to favor the rule, which seems to be sound, that the burden 'of 'proving the carrier's negli- 414; Grier v. St. Louis Merchants' Bridge Terminal K. Co., 108 Mo. App. 565, 84 S. W. 158; Saleeby v. Central R. Co. of New Jersey, 99 App. Div. 163, 90 N. T. Supp. 1042; Mouton v. Louisville & N. R. Co., 128 Ala. 537, 29 South. 602; J. H. Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 4 L. R. A. (N. S.) 1060, 114 Am. St Rep. 419. ot Marquette, H. & O. R. Co. v. Langton, 32 Mich. 251; The Vincenzo, 10 Ben. 228, Fed. Cas. No. 16,948; Bonflglio v. Lake Shore & M. S. Ry. Co., 125 Mich. 476, 84 N. W. 722; The La Kroma (D. C.) 138 Fed. 936; Morris v. Wier, 20 Misc. Rep. 586, 46 N. T. Supp. 413 ; Heck v. Missouri Pac. Ry. Co., 51 Mo. App. 532 ; Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 79 S. W. 124, 64 L. R. A. 443; Uber v. Chicago, M. & St P. Ry. Co., 151 Wis. 431, 138 N. W. 57. «8 Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 206; Wallingford v. Co- lumbia & G. R. Co., 26 S. C. 258, 2 S. E. 19 ; J. H. Cownie Glove Co. v. Mer- chants' Dispatch Transp. Co., 130 Iowa, 327, 106 N. W. 749, 4 L. R. A. (N. S.) 1060, 114 Am. St. Rep. 419 ; Slater v. South Carolina Ry. Co., 29 S. 0. 96, 6 S. E. 936. Sometimes the plaintiff's own showing may show clearly the carrier's exemption from responsibility. Davis v. Wabash, St L. & P. Ry. Co., 89 Mo. 340, 1 S. W. 327. »• See 3 Hutch. Carr. 1354-1357, with very elaborate citation of cases. § 118) BUKDEN OF PROOF 849 pe ace rests upon thf plaintiff «» Under t his ru le, which obtains in E ngland. N ew Yo rk f and th<» UnitpH States Snprpmp O.nnrr. the ca rrier prevails, in the absence of further proof bv ih fi„..alaintiff. when he shows that the loss or injury was the result of one of the exc eptea causes, under, circumstances which do not of themse lves import negligence on his part. These cases proceed on the ground tharloss or injury from an excepted peril raises no presumption that the carrier has been negligent, but rather a presumption that he has performed his duty in the premises. It is therefore held that the carrier's negligence is a positive fault, which the plain- tiff must prove. Ve ry many courts, however, are not so kind to the carri er and hold that, to offset the plaintiff's prima facie case, the carrier must prove, not only that the loss or injury was due to an excepted peril, but also that he exercised reasonable diligence or ordinary care in the premises to avoid such peril and to escape its conse- quences. 61 In other words, the carrier must prove an excepted go This rule obtains in England, and is supported by the United States courts and those of New York, Pennsylvania, Wisconsin, Tennessee, Missouri, Rhode Island, Maine, Louisiana, Kansas, and other states. Muddle v. Stride, 9 Car. & P. (Eng.) 380 ; The Glendamoch, L. R. (1894) P. (Eng.) 226, 63 L. J. P. 89; Lamar Mfg. Co. v. St. Louis & S. F. R. Co., 117 Mo. App. 453, 93 S. W. 851; Witting v. St. Louis & S. F. Ry. Co., 101 Mo. 631, 14 S. W. 743, 10 L. R. A. 602, 20 Am. St Rep. 636; Davis v. Wabash, St. L. & P. Ry. Co., 89 Mo. 340, 1 S. W. 327; Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 199 (cf. Hill v. Sturgeon, 28 Mo. 323) ; Steers v. Liverpool, N. Y. & P. S. S. Co., 57 N. T. 1, 15 Am. Rep. 453; Lamb v. Camden & A. R. & Transp. Co., 46 N. Y. 271, 7 Am. Rep. 327; Cochran v. Dinsmore, 49 N. Y. 249; Patterson v. Clyde, 67 Pa. 500; Colton v. Cleveland & P. R. Co., 67 Pa. 211, 5 Am. Rep. 424; Farnham v. Camden & A. R. Co., 55 Pa. 53; Goldey v. Pennsylvania R. Co., 30 Pa. 242, 72 Am. Dec. 703 ; cf. Pennsylvania R. Co. v. Miller, 87 Pa. 395; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627; Whitesides v. Russell, 8 Watts & S. (Pa.) 44; Little Rock, M. R. & T. R. Co. v. Corcoran, 40 Ark. 375; Little Rock, M. R. & T. Ry. Co. v. Harper, 44 Ark. 208; Kansas Pac. Ry. Co. v. Reynolds, 8 Kan. 623; Kallman v. United States Exp. Co., 3 Kan. 205; Kelham v. The Kensington, 24 La. Ann. 100; Smith v. North Carolina R. Co., 64 N. C. 235; Hubbard v. Harnden Exp. Co., 10 R. I. 244; Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. Ed. 160; Christie v. The Craigton (D. C.) 41 Fed. 62; Mitchell v. U. S. Exp. Co., 46 Iowa, 214; Sager v. Portsmouth, S. P. & E. R. Co., 31 Me. 228, 50 Am. Dec. 659; National Rice Mill Co. v. New Orleans & N. E. R. Co., 132 La. 615, 61 South. 708. ei Among the states upholding this rule are Connecticut, California, Minne- sota, Mississippi, Nebraska, Ohio, Kentucky, Texas, North Carolina, Georgia, and Alabama. Mears v. New York, N. H. & H. R. Co., 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192; Wilson v. California Cent. R. Co, 94 Cal. 166, 29 Pac. 861, 17 L. R. A. 685; Louisville & N. R. Co. v. 350 LIABILITIES OF THE COMMON CAEEIEE OF GOODS (Ch.10 c ause plus the ab sence of negligence on his part in connectio n therewith. L,oss or injury by an excepted cause, according to these cases, involves a prima facie presumption of negligence, which, if not overcome by a showing on the part of the carrier, is sufficient to hold him liable. Mere proof, then, that the loss or injury was due to an excepted peril, stopping there, would avail the carrier nothing. This rule has the merit of convenience, as the carrier is in the better position to know all the facts ; but it seems to be un- duly severe upon the carrier. It should be noted that, according to the generally accepted mod- ern terminology, the burden of proof does not shift. But the duty of going forward with the evidence may, and frequently does, shift from one party to another, 62 as we have seen above, during the trial. A failure in the duty thus imposed may therefore result in the loss of the suit by the delinquent party. CARRIERS OF LIVE STOCK 119. Carriers of live stock are none the less common carriers when- ever_£atriers. c^dtfierjijobcts would" TSeT The exception relieving the common carrier, uTtEe^osence of his negli- gence, from liability for loss or damage due to the in- herent nature of the goods, here becomes of striking im- portance, owing to the vitality of the freight. Brown, 90 S. W. 567, 28 Ky. Law Rep. 772; Bosley v. Baltimore & O. E. Co., 54 W. Va. 563, 46 S. E. 613, 66 L. R. A. 871; Hinkle v. Southern Ry. Co, 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Central of Georgia Ry. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St Rep. 170, 4 Ann. Cas. 128; South & N. A. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Steele v. Townsend, 37 Ala. 247, 79 Am. Dec. 49; Berry v. Cooper, 28 Ga. 543; Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 1003, 45 Am. Rep. 428; Chicago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017; Gains v. Union Transp. & Ins. Co., 28 Ohio St 418; United States Express Co. v. Backman, 28 Ohio St, 144; Graham v. Davis, 4 Ohio St 362, 62 Am. Dec. 285; Union Express Co. v. Graham, 26 Ohio St. 595; Slater v. South Carolina Ry. Co., 29 S. C. 96, 6 S. E. 936; Swindler v. Hilliard, 2 Rich. Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268; Harris v. Northern In- diana R. Co., 20 N. Y. 232; Johnson v. Alabama & V. Ry. Co., 69 Miss. 191, 11 South. 104, 30 Am. St. Rep. 534. 71 See cases cited in note 64. " Richardson v. Chicago & N. W. Ry. Co., 61 Wis. 596, 21 N. W. 49; Il- linois Cent. R. Co. v. Scruggs, 69 Miss. 418, 13 South. 698; Louisville, N. O. & T. Ry. Co. v. Bigger, 66 Miss. 319, 6 South. 234; Smith v. New Haven & N. R. Co., 12 Allen (Mass.) 531, 90 Am. Dec. 166; Penn v. Buffalo & E. R. Co., 49 N. Y. 204, 10 Am. Rep. 355. Where the carrier has used due care, and provided a suitable car, and the injuries were caused by the peculiar character and propensities of the horse, such as fright and bad temper, the carrier is not liable. EVANS v. FITCHBURG R. CO., Ill Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201. It Is the duty of the owner, delivering property to a carrier which he knows requires peculiar care in its safe transportation, to make known the necessity in order that Dob.Bailm. — 23 354 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 ing animals have excitabilities and volitions of their own, which greatly increase the risks and difficulties of management. They are carried in a mode entirely opposed to their instincts or habits; they may be made uncontrollable by fright, or notwithstanding every precaution, may destroy themselves in attempting to break the proper precaution may be used. Wilson v. Hamilton, 4 Ohio St. 722. In Clarke v. Rochester & S. R. Co., 14 N. Y. 570, 67 Am. Dec. 205, it was held that common carriers of cattle are liable, not only for a safe and care- ful conveyance of the car containing them, but also for any injury which can be prevented by foresight, vigilance, and care, although arising from the conduct of the animal, and they are not relieved of this responsibility by the fact that the owner of the cattle was present, and aided in loading them, and was allowed a passage for himself in the train which' carried the cattle. See, also, Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42; Goldey v. Pennsylvania R. Co., 30 Pa. 242, 72 Am. Dec. 703 ; McDaniel v. Chicago & N. W. R. Co., 24 Iowa, 412. The carrier is not relieved from his liability merely because delay, which occasions damage to the property, is the result of an unavoidable accident, but is bound, notwithstanding the accident, to use the highest degree of care during the delay for the safety of the deposit. Kinnick v. Chicago, R. I. & P. R. Co., 69 Iowa, 665, 29 N. W. 772. Where there is no misrepresentation or deceit on the part of the shipper of live stock, a com- mon carrier waives all exceptions to the defects in loading by accepting stock so loaded for transportation, and assumes all the liabilities of a common car- rier with reference to the property. Id. "No doubt the horse was the im- mediate cause of its own injuries, i. e. no person got into the box and in- jured it. It slipped, or fell, or kicked, or plunged, or in some way hurt it- self. If it did so from no cause other than its inherent propensities, its proper vice — that is, from fright, or temper, or struggling to. keep its legs — the defendants are not liable. But, if it so hurt itself from the defendants' negligence or any misfortune happening to the train, though not through any negligence of the defendants (as, for instance, from the horse box leaving the line, through some obstruction maliciously laid upon it), then the de- fendants, as insurers, would be liable. If perishable articles, say soft fruits, are damaged by their own weight and the inevitable shaking of the car- riage, they are injured through their own intrinsic qualities. If, through pressure of other goods carried with them, or by an extraordinary shock or shaking, whether through negligence or not, the carrier is liable." Kendall v. Railway, L. R. 7Exch. (Eng.) 373. A railroad company is not responsible for injuries inflicted upon one horse by another while they were being carried in the company's car, if the injuries were caused by the fault or neglect of the owner of the horses, in attaching their halters, or not removing their shoes. EVANS v. FITCHBURG R. CO., Ill Mass. 142, 15 Am. Rep. 19, Dobie Cas. Bailments and Carriers, 201. A shipper must disclose peculiari- ties affecting the risk (Wilson v. Hamilton, 4 Ohio St 722; Missouri Pac. R. Co. v. Pagan [Tex. Civ. App.] 27 S. W. 887) , but need not disclose facts apparent to observation (McCune v. B., C. R. & N. R. Co., 52 Iowa, 600, 3 N. W. 615; Estill v. New York, L. E. & W. R. Co. [C. C] 41 Fed. 849). A carrier of live stock cannot stipulate for exemption from liability for his own negligence. Moulton v. St. Paul, M. & M. Ry. Co., 31 Minn. 85, 16 N. W. 497, 47 Am. Rep. 781 ; Kansas City, St. J. & C. B. R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821, 46 Am. Rep. 104. A carrier of live stock held not lia- § 119) CARRIERS OF LIVE STOCK 355 loose, or may kill each other." 7t Animals have active wants that must be attended to; they are susceptible to heat and cold; dis- ease and their inherent propensities frequently kill or injure many of them. The vitality of the freight, then, becomes a tremendous factor in determining the liability of the carrier. This vitality of the animals, or their peculiar nature, or inherent propensities, or proper vice, as it is variously called, obviously plays a double role in this connection: First, it involves a dif- ferent type of physical facilities and a unique kind of service, far more exacting than in the case of inanimate freight, in order that the carrier may fulfill his duty of exercising ordinary care. 74 Sec- ondly, even when the carrier has exercised ordinary care, there are still, as has been indicated, many more injuries and losses here than in the case of inanimate freight. All of these considerations must be given due weight when the rule is applied that the carrier, who has used ordinary care in the premises and is hence guilty of no negligence, is not liable for any loss or injury as to the animals which can be traced to their inherent nature. 75 Statutes St atutes have b f^ffll pa ssp d in ma ny of the states, and also b y the fe deral Co ngress, s>ffpctina..±he trqa.sc r ' r £2.t i , rm °f Uve stock. ble for any "gaunting, scratching, biting," etc. Hanley v. Chicago, M. & St. P. Ry. Co., 154 Iowa, 60, 134 N. W. 417. See, also, Gilbert Bros. v. Chi- cago, R. I. & P. R. Co. (Iowa) 136 N. W. 911; Klair v. Philadelphia, B. & W. R. Co. 2 Boyce (Del.) 274, 78 Atl. 1085; Chicago, I. & L. R. R. Co. v. Woodward, 164 Ind. 360, 72 N. B. 558, 73 N. B. 810; Maslin v. Baltimore & O. R. Co., 14 W. Va. 180, 35 Am. Rep. 748; Winslow v. Chicago & A. R. Co., 170 Mo. App. 617, 157 S. W. 96. '3 EVANS v. FITCHBURG R. CO., Ill Mass. 142, 15 Am. Rep. 19, Do- bie Cas. Bailments and Carriers, 201. 74 Gulf, C. & S. F. Ry. Co. v. Trawick, 80 Tex. 370, 15 S. W. 568, 18 S. W. 948; Covington Stockyard Co. v. Keith, 139 U. S. 128, 11 Sup. Ct. 469, 35 L. Ed. 73; Betts v. Chicago, R. I. & P. Ry. Co., 92 Iowa, 343, 60 N. W. 623, 26 L. R. A. 248, 54 Am. St. Rep. 558 ; Pratt v. Ogdensburg & L. C. R. Co., 102 Mass. 557; Coupeland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534. A carrier of live stock must furnish all necessary facili- ties for their rest, exercise, and refreshment, though the time and place thereof must be left to its own judgment. St. Louis Southwestern Ry. Co. v. Mitchell, 101 Ark. 289, 142 S. W. 168, 37 L. R. A. (N. S.) 546. A carrier of live stock must afford proper facilities for having the stock watered and attended to during transportation. Harden v. Chesapeake & O. Ry. Co., 157 N. C. 238, 72 S. E. 1042. 75 Cragin v. New York Cent. R. Co., 51 N. T. 61, 10 Am. Rep. 559; Giblin v. National Steamship Co., 8 Misc. Rep. 22, 28 N. Y. Supp. 69; Armstrong v. Unit- ed States Bxp. Co., 159 Pa. 640, 28 Atl. 448. It has been held that this increas- ed hazard in transporting live stock can properly be taken into account by the carrier in fixing his rates. New Orleans Live Stock Exchange v. Texas & P. Ry. Co., 10 Interst Com. Rep. 327. See, also, Judson, Interstate Commerce (2d Ed.) § 186. 356 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 Tfrp most important of thes e is the federal statute requirin g that cattle shall nai-he-rnniingrt. .inJu ater state shipments, for more than twent y-ekht, consecutive, hours l^f^n^pin.^ ^]n^~d fnr r.^- w ater, and feedin g. 76 There are also various federal statutes as to the transportation of diseased cattle. 77 THE HARTER ACT AS TO CARRIERS BY WATER- LIMITED LIABILITY ACT 120. The Harter Act, passed by the federal Congress, has ma- terially l essened »ftft liability nf carriers fay W a+Pr ™ hn Viqyp. i-nmpiicH with ;t^ prpyisinns The amount of the liability of a vessel owner is further limited by the Limit- ed Liability Act. The Harter Act, 78 passed by Congress in 1893, has wrought such a change in the liability of carriers by water that it calls for some brief mention here. The language of the act is broad and applies to "all vessels transporting merchandise to and from any port of the United States, situated upon any navigable waters, in- land or otherwise, over which the federal government has juris- diction." 79 The first section 80 of the a ct forbids any contract reliejrin£L,the "manager, agent, master, or owner" of the vessel ' from liability fo r loss or damage arising from negligence *,„* ..JjL in proper Igari- ing^ stowage, 82 custody, care, or proper delivery of any and a n lawful merchandise or property committed to itajjrJtEe ir charg e." 76 Rev. St. § 4386 (U. S. Comp. St. 1901, pp. 2995, 2996). See Judson, In- terstate Commerce (2d Ed.) §§ 546-558. 77 See these statutes collected in 1 Fed. St Annotated, under title "An- imals." ts Act Feb. 13, 1893, c. 105, 27 Stat. 445. For complete text of act, see U. S. Comp. Stat. 1901, p. 2946, 4 Fed St. Annotated, pp. 854-864, with many annotations. For discussion of the act, with its first three sections in full, see 1 Hutch. Carr. §§ 345-387, on which the brief discussion given above is based. The title of the act is "An act relating to navigation of vessels, bills of lading, and to certain obligations, duties and rights in connection with the carriage of property." 70 In re Piper Aden Goodall Co. (D. C.) 86 Fed. 670. See, further, as to the extent of the Harter Act, The B. A. Shores, Jr. (D. C.) 73 Fed. 342; The Germanic, 196 U. S. 589, 25 Sup. Ct. 317, 49 L. Ed. 610. so As to this section, see Bethel v. Mellor & Rittenhouse Co. (D. C.) 131 Fed. 129; The Southmark, 191 U. S. 1, 24 Sup. Ct. 1, 48 I* Ed. 65; Calderon v. Atlas S. S. Co., 170 U. S. 272, 18 Sup. Ct 588, 42 L. Ed. 1033. si For meaning of this word here, see 1 Hutch. Carr. § 350; Insurance Co. of North America v. North German Lloyd Co. (D. C.) 106 Fed. 973; Nord- Deutscher Lloyd v. President, etc., of Insurance Co. of North America, 110 Fed. 420, 49 C. C. A. 1. s 2 For two senses in which this word is used, see 1 Hutch. Carr. §§ 351- § 120) THE HAKTEB ACT AS TO OABRIERS BY WATEB 357 Thie second section 83 forbi ds similar ^contracts, lessen ing the nhlig-at.ion of thp nwne.rs , "to-~&»%w*s % -4- u^ dJligaas e -. frto j —p geperly eq, uip, man t prov ision, and outfit said vessel seaworthv__a ]gd-£a,nable of performing her intende d vovage^mrjessening '^heo bligations otj&ejnjkster, officers^ agents or sexxai3^ta»£a^fullyhandle and sto^her cargo, and to care for and properly deliversame. ' These two sections^*" therefore, to which the courts have given full effect, are limitations, as to the incidents mentioned, on the power of the shipowner to limit his liability by contract. The third section , however, materially limits the common-law li abilt?y s onhe T sTii"pown er. The first part 01 this section provides what sucn owner must do to secure exemption from liability; the second part defines precisely what is the extent of the exemption thus secured. Thus it is first provided that the owner "shall ex- ercise due diligence S4 to make the said vessel seaworthy and prop- erly manned, equipped and supplied." If this is done, it is provided that neither the vessel nor the owner, agent, or charterer shall be liable for loss or damage due 8B (1) to any of the five excepted perils in the case of the common carrier ; (2) to fault s or errors i n navig.a1aon-~oi^4fr4&e -managernent of said ves sel ; (3) J^ saving or gt *"Tnpt ;r "T *1"l ?*"* 1, ' fp -" r prnpprty at g Pa o r a.ny devia tion in ren - deri ng such service ; o r (4) t o dang ers of the sea or other navigable waters. ~~ T5F these exemptions, the second is by far the most striking, under which, if the owner is duly diligent as outlined, he escap es l iability fnr fY» n +h<* "pg ligent acts of his own agents and ser vant's, within the sco pe ai -their, authority, _when_such negligent acts we:e committ gd "in the navi gation o r. management of tlie~vessel." " Thus the duly diligent owner escaped liability for an accumulation of water in the bilges, owing to a failure to make proper use of the pump, 87 and negligently leaving a sea cock open, 88 as faults in 359; Corsar v. J. D. Spreckels & Bros. Co., 141 Fed. 260, 72 O. C. A. 378; The Victoria (D. C.) 114 Fed. 962. 83 As to the effect of sections 1 and 2 on the shipowner's implied warran- ty of seaworthiness, see 1 Hutch. Carr. §§ 362-364. si As to what is due diligence, see 1 Hutch. Carr. §§ 380-381; The Mani- toba (D. C.) 104 Fed. 145; International Nav. Co. v. Farr & B. Mfg. Co., 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830 ; Nord-Deutcher Lloyd v. President, etc., of Insurance Co. of North America, 110 Fed. 420, 49 C. O. A. 1; The Colima (D. C.) 82 Fed. 665 ; The Abbazia (D. C.) 127 Fed. 495. so This is not the order in which the exemptions are given in the act so For scope of this exception, see The Rosedale (D. C.) 88 Fed. 328; Id., 92 Fed. 1021, 35 C. C. A. 167; The Guadaloupe (D. C.) 92 Fed. 671; The Etona (D. C.) 64 Fed. 880; The Nettie Quill (D. C.) 124 Fed. 669. «7 The Merida, 107 Fed. 146, 46 C. C. A. 208. «» The Wildcroft, 130 Fed. 521, 65 C. C. A. 145. 358 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch, 10 the "management of the vessel" ; and also for failure to heed a light showing the position of a reef, 89 and for the mistake of the captain in entering a bay at low tide and thus stranding the ship," as faults of navigation. Limited Liability Act 91 Under section 4283 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 2943), the liability of the vessel owner for loss or damage 92 is limited in amount to "the interest of such owner in such vessel 9S and her freight," 94 provided only the loss Or damage occurred "without the privity or knowledge of such owner." 95 Under this statute, then, the owner is protected from losing any more than the amount of his interest, even though the damage to the injured cargo, or the value of the lost cargo, may- far exceed in amount the interest of the owner. CARRIER'S LIABILITY FOR DEVIATION AND DELAY- DEVIATION 121. When the carrier, withsut-Xlscessity o r. reasonable excuse, deviates from the usua l or a greed route, he_becomes ab- so lutely l iable for the goods, with out a ny_ex ception wfiat- soeyer^— A material deviation from the usual or agreed route, without justification or_excuse, by the carrier, is the assumption of an un - lawiuLikirmMoajaxOLillS-gPods, and is therefore e quivalent to a eo The B. A. Shores, Jr. (D. C.) 73 Fed. 342. oo In re Meyer (D. C.) 74 Fed. 881. oi Act March 3, 1851, c. 43, 9 Stat. 635. For text of act, see U. S. Comp. St. 1901, p. 2943; 1 Hutch. Carr. p. 361, note. For text and extensive annota- tions, see 4 Fed. St. Annotated, pp. 839-849. 02 The limitation applies equally to cases of personal injury and death, and to cases of loss of, or damage to, property. Butler v. Boston & S. S. S. Co., 130 U. S. 552, 9 Sup. Ct. 612, 32 L. Ed. 1017 (death of passenger) ; Craig v. Continental Ins. Co., 141 U. S. 643, 12 Sup. Ct 97, 35 L. Ed. 886 (death of member of crew). 3 The City of Norwich, 118 U. S. 491, 6 Sup. Ct 1150, 30 L. Ed. 134; The Benefactor, 103 U. S. 247, 26 L. Ed. 466; In re La Bourgogne (D. C.) 117 Fed. 261; Matter of Wright, 10 Ben. 14, Fed. Cas. No. 18,066. oi Sumner v. Caswell (D. C.) 20 Fed. 253; The Main v. Williams, 152 U. S. 122, 14 Sup. Ct. 486, 38 L. Ed. 381 ; In re Meyer (D. C.) 74 Fed. 897. oo The Republic, 61 Fed. 109, 9 C. C. A. 386; Craig v. Continental Ins. Co., 141 U. S. 643, 12 Sup. Ct. 97, 35 L. Ed. 886 ; Parsons v. Empire Transp. Co., Ill Fed. 208, 49 C. C. A. 302 ; The Annie Faxon, 75 Fed. 314, 21 C. C. A. 366 ; In re Leonard (D. C.) 14 Fed. 55. § 121) carrier's liability for deviation 359 con version . 86 This, therefore, 1 '™rnseff "pnn the car rier an ab- solute liability which rpcQfipniz.e-s-.nct...e.YCfiptinn. n,fft pven the nve ex cepted p erils: 87 For any loss or injury, the carrier is responsible, utterly reg ardless of Row it happened or what Was itBCatlse. 'Bven_ the pure a cTof God atiord s hiriTno excuse^ 8 ~ ~ It is saidTn such cases^haTTFtEe loss was due to an act of God, and the carrier can go further and show that such loss or injury would have occurred just the same, had there been no deviation, even this will not excuse him. 98 As the unnecessary deviation was an active wrong, the carrier must bear its consequences, what- ever they may be. It is said that he shall not be allowed to qualify or apportion his wrong. Of course, this perilous responsibility r ests upon the carrier nnlv for a wrntifrf^i /*iTJrUir«, nnr fr> r whi ch there is no necessity or ex - cuse. When th e deviation was necessary or justifiable, the carr ier in curs no liatm tfy hy iW< Indeed, there might be cases when the carrier, in not making a deviation, would thereby convict himself of negligence. In all of these cases, the consent of the shipper to such deviation can readily be presumed. Thus, the deviation was necessary and excusable when the carrier's vessel would otherwise have been captured by the public enemy, or when the deviation was 8 « See discussion of this question as to conversion by the ordinary bailee for hire, ante, § 47. See, also, Maghee v. Camden & A. R. Transp. Co., 45 N. Y. 514, 6 Am. Rep. 124; Richmond & D. R. Co. v. Benson, 86 Ga. 203, 12 S. B. 357, 22 Am. St Rep. 446 (carrier held liable for destruction of goods by act of God, after the" carrier's wrongful refusal to deliver the goods) ; Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579; Louisville & N. R. Co. v. Barkhouse, 100 Ala. 543, 13 South. 534 ; Crosby v. Pitch, 12 Conn. 410, 31 Am. Dec. 745; Powers v. Davenport, 7 Blackf. (Ind.) 497, 43 Am. Dec. 100; Davis v. Garrett, 6 Bing. (Eng.) 716; Merchants' Despatch Transp. Co. v. Kahn, 76 111. 520. " S. D. Seavey Co. v. Union Transit Co., 106 Wis. 394, 82 N. W. 285; Louis- ville & C. Packet Co. v. Rogers, 20 Ind. App. 594, 49 N. E. 970; Parker v. James, 4 Camp. (Eng.) 12; Galveston, H. & S. A. R. Co. v. Breaux (Tex. Civ. App.) 150 S. W. 287. »s Davis v. Garrett, 6 Bing. (Eng.) 716; Galveston, H. & S. A. R. Co. v. Breaux (Tex. Civ. App.) 150 S. W. 287. 09 See cases cited in note 97 ; 1 Hutch. Carr. § 295. See, also, opinion of Tindal, C. J., in Davis v. Garrett, 6 Bing. (Eng.) 716. i Hand v. Baynes, 4 Whart. (Pa.) . 204, 33 Am. Dec. 54 ; Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416. Taking another vessel in tow, when not in distress, constitutes a deviation. Natchez Ins. Co. v. Stan- ton, 2 Smedes & M. (Miss.) 340, 41 Am. Dec. 592; Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416. And see International & G. N. R. Co. v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. 680. But the burden of proving such necessity rests on the carrier. Le Sage v. Great W. Ry. Co., 1 Daly (N. Y.) 306. 360 LIABILITIES OF THE COMMON CARRIER OP GOODS (Ch. 10 made to escape a destructive and dangerous storm, or serious dan- ger from icebergs. 2 In each of the following cases there was no justification or ex- cuse, and the carrier was held liable : When there was a deviation by the vessel from the usual course, and the loss was caused by a tempest ; s when the contract was for transportation by land, and the goods were sent by water,* and destroyed by the act of God ; when the shipper stipulated that the goods were to be sent by one line of boats, and they were sent by another line. 4 SAME— DELAY I2114. In the absence of special contract, the common carrier is bound to use only reasonable care or ordinary diligence in completing the transportation without delay. The car- ri er is therefore liable for delay only when it is dueto"KIs negligen ce. When the carrier specially agrees to transport and deliver the goods w ithin a prescribed time, he is, of c ourse, bnnnH hy hi§. contract, ^ndJaJiaM^i?r_his Ljaihirejto JisB_un_tpjLs terms. When the common carrier receives goods for transportation, there is an implied undertaking on his part that t hey are to be carried an d delivered within a rea son able tim e. 8 But the carrier 2 See Van Zile, Bailm. & Carr. § 499 ; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; Johnson v. New York Cent. R. Co., 33 N. T. 610, 88 Am. Dec. 416 ; Maghee v. Camden & A. R. Transp. Co., 45 N. T. 514, 6 Am. Rep. 124 8 Davis v. Garrett, 6 Bing. (Eng.) 716. The same principle applies to car- riers by land. See Powers v. Davenport, 7 Blackf. (Ind.) 497, 43 Am. Dec. 100; Phillips v. Brigham, 26 Ga. 617, 71 Am. Dec. 237; Lawrence v. McGregor, Wright (Ohio) 193. * Ingalls v. Brooks, 1 Edm. Sel. Cas. (N. Y.) 104; Philadelphia & R. E. Co. v. Beck, 125 Pa. 620, 17 Atl. 505, 11 Am." St. Rep. 924. So, where the agreement was to send by canal, and they were sent by sea. Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am. Dec. 54. Johnson v. New York Cent R. Co., 33 N. Y. 610, 88 Am. Dec. 416; Cox v. Foscue, 37 Ala. 505, 79 Am. Dec. 69. So, if the agreement is to send by steam, and the goods are sent by sail. Wilcox v. Parmelee, 3 Sandf. (N. Y.) 610. A carrier must follow instructions as to the selection of carriers be- yond his own route. Johnson v. New York Cent. R. Co., supra. If the owner of the designated line of boats refuses to receive the goods, the car- rier should so notify the owner and await instructions. Goodrich v. Thomp- son, 44 N. Y. 324. And see Fisk v. Newton, 1 Denio (N. Y.) 45, 43 Am. Dec. 649. e Ryland & Rankin v. Chesapeake & O. R, Co., 55 W. Va. 181, 46 S. E. 923; The Prussia (D. C.) 100 Fed. 484; Denman v. Chicago, B. & Q. R. Co, 52 § 121%) carrier's liability for delay 361 is not an insurer, in this regard, as he is in case of loss or dam- age. 7 He is liable for delay only w hen this is due_ t o -hia, failure to exercise ordinary cafe or reasonable diligence to transport and deliver the goods within a reasonajjlejtime. 8 His primary duty, {Ren7"ferto "carry safely ,~"as to which he is with certain exceptions an insurer. On this primary duty is ingrafted another, the duty of using ordinary care to carry promptly; but as to this he is liable only when he fails to deliver within a reasonable time, and when, in addition, this failure is due to his negligence." When loss or Neb. 140, 71 N. W. 967; Denny v. New York Cent. B. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645 ; Cincinnati, I., St L. & C. Ry. Co. v. Case, 122 Ind. 310, 23 N. E. 797; Pittsburg, C, C. & St. L. R. Co. v. Knox, 177 Ind. 344, 98 N. E. 295; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204; Bibb Broom Corn Co. v. Atchison, T. & S. F. R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361, 3 Ann. Gas. 450. i Taylor v. Railway Co., L. R. 1 C. P. (Eng.) 385; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204 ; Scovill v. Griffith, 12 N. Y. 509; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Empire Transp. Co. v. Wallace, 68 Pa. 302, 8 Am. Rep. 178; Kinnick v. Chi- cago, M. & St. P. R. Co., 69 Iowa, 665, 29 N. W. 772; Savannah, F. & W. Ry. Co. v. Pritchard, 77 Ga. 412, 1 S. E. 261, 4 Am. St. Rep. 92; Johnson v. East Tennessee, V. & G. Ry. Co., 90 Ga. 810, 17 S. E. 121. But see Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458. Goods received on Sunday must be transported within a reasonable time. Philadelphia, W. & B. R. Co. v. Leh^ man, 56 Md. 209, 40 Am. Rep. 415. The rule that a carrier is an insurer of safe delivery held not to apply to liability for delay of transportation; rea- sonable care only being required to avoid delay. Delaney v. United States Express Co., 70 W. Va. 502, 74 S. E. 512. s Southern Ry. Co. v. Wilcox, 99 Va. 394, 39 S. E. 144 ; International & G. N. Ry. Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622; Johnson v. East Tennessee, V. & G. Ry. Co., 90 Ga. 810, 17 S. E. 121; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. R. CO., 163 Mo. App. 426, 143 S. W. 839, Dobie Cas. Bailments and Carriers, 196; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415 ; Taylor v. Railroad Co., L. R. 1 C. P. (Eng.) 385; Rawson v - . Holland, 59 N. Y. 611, 17 Am. Rep. 494; Michi- gan Southern & N. I. R. Co. v. Day, 20 111. 375, 71 Am. Dec. 278; Rathbone v. Neal, 4 La. Ann. 563, 50 Am. Dec. 579. A carrier of live stock is not liable for delay in the transportation thereof, unless the delay was occasioned by Its negligence, and a carrier acting in good faith and to protect the shipment is not negligent. Otrich v. St. Louis, I. M. & S. R. Co., 154 Mo. App. 420, 134 S. W. 665; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204. See, also, Cleveland, C, C. & St L. Ry. Co. v. Heath, 22 Ind. App. 47, 53 N. E 198; Bibb Broom Corn Co v. Atchison, T. & S. F. R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361, 3 Ann. Cas. 450; St Louis & S. F. R. Co. v. Dean (Tex. Civ. App.) 152 S. W. 1127. •Taylor v. Railway Co., L. R. 1 C. P. (Eng.) 385; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204. 362 LIABILITIES OF THE COMMON CARRIES OF GOODS (Ch. 10 damage occurs, the only defense that the carrier can make is one of the excepted perils. When delay o cc urs, the carrier can set U£jhe_ exercise of ordinary care as a perfect defense. The law thus^prjeiers^safety. by.JuoipQsirig jan extraordin ary responsibUitv" oh the common carrier as to this, to promptness, as to which the ca r- rier incurs merely the responsibility of Jthe ordinary ba ilee for hi re. Whfin. the saf etyof the good s demands a delay, t his is thf-n not merely an _actToT which the'carrier is excused, but such dehy becomes a positive duty. 10 "Ar Cunreasonabl edelay. due to the clear negligence of the carri er, dog_ s no t, however, amo unt tp a conversion., 11 Co nversion involves the assertion of" unlawf ul dominio n ove r the -good s.. The owner ofjhjpgxfi^ long_the _delay ." He cannot refu se to accept them and reco ver their value from the carrier. "The remedy of the owner, in such cases, is to sue the carrier for damages. 13 The measure of his recovery is "the amount of damage that he has suffered, proximately and naturally resulting from the delay. 1 * 10 Crosby v. Fitch, 12 Conn. 410, 31 Am. Dee. 745, In which it was held that, when the safer passage was obstructed by ice, the shipmaster should have waited until it was open, instead of venturing out in the open sea. See, also, Davis v. Garrett, 6 Bing. (Eng.) 716 ; International & G. N. Ry. Co. v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. 680. ii Scovell v. Griffith, 12 N. Y. 509; Hackett v. B. C. & M. R. R., 35 N. H. 390. 12 Rubin v. Wells Fargo Exp. Co. (Sup.) 85 N. Y. Supp. 1108; Goldbowitz v. Metropolitan Exp. Co. (Sup.) 91 N. Y. Supp. 318; Illinois Cent. R. Co. v. Johnson & Fleming, 116 Tenn. 624, 94 S. W. 600; Ryland & Rankin v. Chesapeake & O. R. Co., 55 W. Va. 181, 46 S. E. 923 ; Baumbach v. Gulf, C. & S. F. Ry. Co., 4 Tex. Civ. App. 650, 23 S. W. 693; St Louis, I. M. & S. Ry. Co. v. Mudford, 44 Ark. 439. is Lowe v. East Tennessee, V. & G. Ry. Co., 90 Ga. 85, 15 S. E. 692; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527 ; Wells, Fargo & Co.'s Express v. Fuller, 13 Tex. Civ. App. 610, 35 S. W. 824; Ormsby v. Union Pac. R. Co. (C. C.) 4 Fed. 706; Felton v. McCreary-McClellan Live Stock Co., 59 S. W. 744, 22 Ky. Law Rep. 1058; Ward v. New York Cent. R. Co., 47 N. T. 29, 7 Am. Rep. 405. i* See post, § 162. Such as deterioration of goods or loss of market Murrell v. Pacific Exp. Co., 54 Ark. 22, 14 S. W. 1098, 26 Am. St Rep. 17; Scott v. Boston & New Orleans S. S. Co., 106 Mass. 468; Scovill v. Griffith, 12 N. Y. 509 ; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666 ; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Fox v. Boston & M. R. Co., 148 Mass. 220, 19 N. E. 222, 1 L. R. A. 702; Pereira v. Central Pac. R. Co., 66 Ual. 92, 4 Pac. 988 ; Douglass v. Hannibal & St J. R. Co., 53 Mo. App. 473; The Cale- donia, 157 U. S. 124, 15 Sup. Ct 537, 39 L. Ed. 644. The shipper may recover expenses to which he has been put by the delay. Black v. Baxendale, 1 Exch. (Eng.). 410; Gulf, C. & S. F. Ry. Co. v. Hume, 87 Tex. 211, 27 S. W. § 121^j) carrier's liability for delay 363 D elay, how ever, even whe n in,_nojatay due -±o~±he -negligence of the carrier, ?Bes~HbVreleas,e the carrier from his. duty of ^ompieting thecarriag_e_of the, goods. 16 The c ontract of carr iage is in no sense disqharged__by_such^deUy. Accordingly, when~the cause of delay is removed, the carrier must again use ordinary care to complete the transportation and promptly carry the goods to their destina- tion. 18 In the cases that follow, th e common carrier, who was in no wa y neglig ent, was held not liahl eTfor delay Jn all of these.cas.es.Jit might be noted, the c arrier would ha ve been liable for loss of^o r damage Jsvthe-goeds-if -similarly- caused When delay was caused by a collision on land, 17 mobs or strikers, 18 destruction of part of 110; Swift River Co. v. Fitchburg R. Co., 169 Mass. 326, 47 N. B. 1015, 61 Am. St. Rep. 288; Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579. Special damages for a car- rier's delay in transportation cannot be recovered where the carrier had no notice at the time of contract of the special facts; not even those accruing from delay occurring after it is given such notice. Hassler v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App. 1911) 142 S. W. 629. Illinois Cent. R. Co. v. Southern Seating & Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729, 78 Am. St. Rep. 933; Deming v. Grand Trunk Co., 48 N. H. 455, 2 Am. Rep. 267; St. Louis, I. M. & S. Ry. Co. v. Mudford, 48 Ark. 502, 3 S. W. 814. Special damages for delay in shipment of goods are recoverable when the carrier has notice that delay in delivery will result in such damages. Mills v. Southern Ry. Co., 90 S. C. 366, 73 S. E. 772. is St. Louis, I. M. & S. R. Co. v. Jones (Tex. Civ. App.) 29 S. W. 695. i« Hadley v. Clarke, 8 Term R. (Eng.) 259. Palmer v. Lorillard, 16 Johns. (N. Y.) 348; Spann v. Erie Boatman's Transp. Co., 11 Misc. Rep. 680, 33 N. T. Supp. 566 ; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458. " CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204. is See 1 Hutch. Carr. § 657; Pittsburgh, C. & St. L. Ry. Co. v. Hollowell, 65 Ind. 188, 32 Am. Rep. 63. But see Blackstock v. New York & E. R. Co., 20 N. Y. 48, 75 Am. Dec. 372. Where the employes of a railroad company suddenly refuse to work, and are discharged, and delay results from the fail- ure of the company to promptly supply their places, the company is liable for any damage caused by such delay; but, where the places of the striking employes are promptly supplied by other competent men, and the strikers then prevent the new employes from doing duty by lawless and irresistible violence, the company is not liable for delay caused solely by such lawless violence. Pittsburgh, Ft. W. & C. R. Co. v. Hazen, 84 111. 36, 25 Am. Rep. 422; Pittsburgh, C. & St. L. R. Co. v. Hollowell, supra; GREISMER v. LAKE SHORE & M. S. R. CO., 102 N. Y. 563,. 7 N. E. 828, 55 Am. Rep. 837, Dobie Cas. Bailments and Carriers, 206; Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L R. A. 323, 18 Am. St. Rep. 45; Haas v. Kan- sas City, Ft. S. & G. R. Co., 81 Ga. 792, 7 S. E, 629; International & G. N. R. Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545; Lake Shore & M. S. Ry. Co. v. Bennett, 89 Ind. 457; Missouri Pac. R. Co. v. Levi (Tex. App.) 14 S. W. 1062; Southern Pac. R. Co. v. Johnson (Tex. App.) 15 S. W. 121; 364 LIABILITIES OF THE COMMON CARRIER OF GOODS (Ch. 10 the carrier's track by, fire, 18 or a scow running into the carrier's boat, 20 the carrier exercising ordinary diligence was excused. 21 What is a Reasonable Time We have just seen that the carrier must use ordinary care to deliver the goods within a rea sonable time. What is a reasonable time, in this connection, is a question of fact for the jury, to be determined in the light of the particular circumstances of each case. 22 These, of course, may present an almost infinite variety. Thus, the nature of the goods, the distance they are to be carried, Bartlett v. Pittsburgh, C. & St. L. Ry. Co., 94 Ind. 281. But cf. Read v. St. Louis, K. & C. & N. R. Co., 60 Mo. 199. i» Michigan Cent. R. Co. v. Burrows, 33 Mich. 6. 20 Parsons v. Hardy, 14 Wend. (N. T.) 215, 28 Am. Dec. 521. 2i For other cases in which the carrier's delay was excused, see Bowman v. Teall, 23 Wend. (N. Y.) 306, 35 Am. Dec. 562; Beckwith v. Frisby, 32 Vt 559 (freezing of navigable waters) ; Bennett v. Byram, 38 Miss. 17, 75 Am. Dec. 90; Silver v. Hale, 2 Mo. App. 557 (low stage of river) ; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527; Ballentine v. North Missouri R. Co., 40 Mo. 491, 93 Am. Dec. 315 ; Briddon v. Railroad Co., 28 L. J. Exch. (Eng.) 51 (heavy snow) . But where a carrier accepted an automobile for shipment, it is liable for an unreasonable delay in the shipment, and its temporary inability to secure a car large enough to hold the automobile will not exoner- ate it. Grigsby v. Texas & P. Ry. Co. (Tex. Civ. App.) 137 S. W. 709. See, generally, Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458; Livingston v. New York Cent, & H. R. R. Co., 5 Hun (N. Y.) 562; Taylor v. Railroad Co., L. R. 1 C. P. (Eng.) 385. A carrier need not incur heavy expense, or use extraordinary exertions, to hasten the transportation of goods. Reasonable diligence is all that is required. Empire Transportation Co. v. Wallace, 68 Pa. 302, 8 Am. Rep. 178. "Cartwell v. Pacific Express Co., 58 Ark. 487, 25 S. W. 503; Bosley v. Baltimore & O. R. Co., 54 W. Va. 563, 46 S. E 613, 66 L. R. A. 871; Cof- fin v. New York Cent. R. Co., 64 Barb. (N. Y.) 379; Wibert v. New York & E. R. Co., 12 N. Y. 245; Nudd v. Wells, 11 Wis. 407; Parsons v. Hardy, 14 Wend. (N. Y.) 215, 28 Am. Dec. 521; Michigan Southern & N. I. R. Co. v. Day, 20 111. 375, 71 Am. Dec. 278; Bennett v. Byram, 38 Miss. 17, 75 Am. Dec. 90; East Tennessee & G. R. Co. v. Nelson, 1 Cold. (Tenn.) 272; Gerhard's Adm'r v. Neese, 36 Tex. 635; McGraw v. Baltimore & O. R. Co., 18 W. Va. 361, 41 Am. Rep. 696; Petersen v. Case (C. C.) 21 Fed. 885; St Louis, I. M. & S. Ry. Co. v. Heath, 41 Ark. 476; Ormsby v. Union Pac. R. Co. (C. C.) 2 McCrary, 48, 4 Fed. 706; St. Clair v. Chicago, B. & Q. Ry. Co., 80 Iowa, 304, 45 N. W. 570. Where an unusual contingency has arisen, which, un- expectedly, largely Increases the business, and thereby prevents the handling of freight with the usual promptness and dispatch, the criterion of reason- able diligence is not the usual average speed in ordinary times, but the average running time under the extraordinary and unusual circumstances existing at the time. Michigan Cent. R. Co. v. Burrows, 33 Mich. 6. For cases where delay has been held unreasonable, see Missouri Pac. Ry. Co. v. Hall, 14 C. C. A. 153, 66 Fed. 868; Cartwright v. Rome, W. & O. R. Co., 85 Hun, 517, 33 N. Y. Supp. 147; Davte y. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965. § 121%) carrier's liability for delay 365 the mode of transportation, the weather, the season of the year, the amount of traffic handled by the carrier, are all important con- siderations, to which due weight should be given. Delivery Withm Time Stipulated The carrier may here, as elsewhere, enlarge his liability by con- tract. Acco rdingly, when the ca rrier agrees to transp ort goods wit hin a specified time, he liTabsolutelv liable i f he fails to do s o. 23 HeTiere assumes a strict responsibility by his own affirmative con- tract, and he must therefore live up to it. In such a case, when the tenor of his contract is for delivery at or before a definite time, without any exceptions, he would then be liable for delay beyond that time, though due to an inevitable accident, or even to the act of God. 24 The contract is the measure of his responsibility, so that it is simply a question of construing the contract. Of course, there could be no recovery for delay that is due to the shipper's own wrong. 25 28 Fox v. Boston & M. K. Co., 148 Mass. 220, 19 N. BS. 222, 1 L. R. A. 702, Pereira v. Central Pac. R. Co., 66 Cal. 92, 4 Pac. 988 ; Chicago & A. R. Co. v. Thrapp, 5 111. App. 502 ; Deming v. Grand Trunk R. R. Co., 48 N. H. 455, 2 Am. Rep. 267; Place v. Union Express Co., 2 Hilt. (N. Y.) 19; Harrison v. Mis- souri Pac. Ry. Co., 74 Mo. 364, 41 Am. Rep. 318; Parmelee v. Wilks, 22 Barb. (N. Y.) 539; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Cantwell v. Pacific Express Co., 58 Ark. 487, 25 S. W. 503. Cf. Atchison, T. & S. F. Ry. Co. v. Bryan (Tex. Civ. App.) 28 S. W. 98; International & G. N. Ry. Co. v. Wentworth, 87 Tex. 311, 28 S. W. 277. So, where a vendor of goods agrees absolutely to deliver them by a certain time, impossibility of obtaining them will not excuse him. Gilpins v. Consequa, Pet. C. C. 85, Fed. Cas. No. 5,452 ; Youqua v. Nixon, Pet C. C. 221, Fed. Cas. No. 18,189. Nor impossibility of delivering them. Bryan v. Spurgin, 5 Sneed (Tenn.) 681. The contract may be implied from acceptance of the goods with knowledge that they are in- tended to be at their destination on a given day. Chicago & A. R. Co. v. Thrapp, 5 111. App. 502; Grindle v. Eastern Express Co., 67 Me. 317, 24 Am. Rep. 31; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415. But see United States Exp. Co. v. Root, 47 Mich. 231, 10 N. W. 351. 2 ■'Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Id., 1 Duer, 209. 20 Fowler v. Liverpool & G. W. Steam Co., 87 N. Y. 190; Stoner v. Chicago G. W. Ry. Co., 109 Iowa, 551, 80 N. W. 569. 366 LIABILITY UNDER SPECIAL CONTRACT (Ch, 11 CHAPTER XI LIABILITY UNDER SPECIAL CONTRACT 122. Historical and Introductory. 123. Method of Limiting Liability. 124. Notice of the Carrier's Regulations. 125. Form of the Contract. 126. Consideration of the Contract 127. Construction of the Contract 128. Burden of Proof. 129. Validity of Specific Stipulations— Stipulations Relieving Carrier of Lia- bility Save for Negligence. 130. Stipulations Seeking to Relieve the Carrier from Liability for Neg- ligence. 13L Stipulations Limiting Liability as to Amount Recoverable— In the Absence of the Carrier's Negligence. 132. Carrier Negligent — Amount Fixed Without Regard to the Val- ue of the Goods. 133. Agreed Valuation of the Goods. 134. Limitations as to Time and Manner of Presenting Claims. 135. Statutory Regulation of Contracts Limiting Carrier's Liability. HISTORICAL AND INTRODUCTORY 122. Though the common-law liability of the common carrier of goods was that of an insurer (with certain exceptions), this rigorous responsibility may be modified by special contract between the shipper and the carrier. Contracts Enlarging the Liability of the Carrier The courts are unanimous in holding that the common carrier of goods may by special contract indefinitely enlarge and extend his common-law liability. 1 The carrier cannot be compelled by law to enter into such contracts, but if he voluntarily enters into them the law will not hesitate to give them effect. Such contracts, in- creasing the liability imposed by the common law, are in no sense i Southern Express Co. v. Glenn, 16 Lea (Tenn.) 472, 1 S. W. 102; Gaither v. Barnett, 2 Brev. (S. C.) 488; McCauley v. Davidson, 10 Minn. 418 (Gil. 335); Id., 13 Minn. 162 (Gil. 150) ; Strohn v. Detroit & M. R Co., 23 Wis. 126, 99 Am. Dec. 114; Redpath v. Vaughan, 52 Barb. (N. X.) 489. As the common carrier's liability at common law is so rigorous, the courts require clear language to indicate an intention to increase this responsibility. They are therefore slow to infer such an intention from mere general expressions. Gage v. Tirrell, 9 Allen (Mass.) 299; Price v. Hartshorn, 44 Barb. 655; Id, 44 N. Y. 94, 4 Am. Rep. 645. § 122) HISTORICAL AND INTRODUCTORY 367 opposed to public policy. Hence, if they possess the usual requi- sites of contractual validity, they are valid and binding. 2 Thus the carrier may by contract constitute himself an insurer, even against the risks ordinarily excepted by the common law, such as the act of God or the public enemy. 3 More usual stipula- tions are that the carrier will carry by a certain route,* that the goods will be carried by land or by water, 6 that only specified cars or other instrumentalities will be used in transporting the goods, 8 or the manner of carrying the goods may be specified in detail. 7 Again, the carrier may by contract absolutely insure the delivery of the goods at the destination by a specified time. 8 In all these cases, the carrier, having fully and freely entered into the contract, is bound to perform it fully or respond in damages for his breach of it. Contracts Limiting the Liability of the Carrier — In England" Though the insuring liability of the common carrier of goods .was fixed as inhering in the relation, and seems not to have been regarded originally as a matter of contract, yet in comparatively early times we find a recognition of the carrier's right to diminish this unusual responsibility by contract. The earliest judicial reference to this right seems to have been a declaration of Lord Coke in Southcote's Case. Lord Hale, in Morse v. Slue, 10 apparently conceded the right. The tremendous importance of the right, however, was not immediately recognized by the carrier, for it was not until after the middle of the eighteenth century that any further cases of importance on the subject were decided. The cases of Gibbon v. Paynton 11 (1769), Forward v. Pittard 12 (1785), and the judgment of Lord Ellenborough in Nich- olson v. Willan 13 (1804), place the right upon a fairly sound ju- 2 See cases cited in preceding note. a Price v. Hartshorn, 44 Barb. 655 ; Id., 44 N. Y. 94, 4 Am. Rep. 645 ; Gage v. Tirrell, 9 Allen (Mass.) 299; Miller v. Chicago & A. Ry. Co., 62 Mo. App. 252. * Maghee v. Camden & A. R. Transp. Co., 45 N. Y. 522, 6 Am. Rep. 124; Steel v. Flagg, 5 Barn. & Aid. (Eng.) 342; 'Goodrich v. Thompson, 44 N. Y. 324. » Merrick v. Webster, 3 Mich. 268. « Mathis v. Southern Ry. Co., 65 S. C. 271, 43 S. E. 684, 61 L. R. A. 824. 1 New York Cent. & H. R. R. Co. v. Standard Oil Co., 20 Hun (N. Y.) 39; Penn v. Buffalo & E. R. Co., 49 N. Y. 204, 10 Am. Rep. 355. s Shelby v. Missouri Pac. Ry. Co., 77 Mo. App. 205 ; Rudell v. Ogdensburgh Transit Co., 117 Mich. 568, 76 N. W. 381, 44 L. R. A. 415. s 4 Coke (Eng.) 43 b (1601). 10 1 Vent. (Eng.) 190 (1671). 12 1 T. R. (Eng.) 27. " 4 Burr. (Eng.) 2298. is 5 East (Eng.) 507. 368 LIABILITY UNDER SPECIAL CONTRACT (Ch. U dicial basis. Later cases unanimously recognized both the existence of this right and its tremendous practical importance. 1 * A num- ber of English statutes, also sanctioned such contractual lim- itations on the old insuring liability. Of these the most important, perhaps,.is the Railway and Canal Traffic Act of 1854, which limited these contracts to such as a court or judge should deem "to be just and reasonable." Same — In the United States With us the earliest cases were Hollister v. Nowlen " (1838) and Cole v. Goodwin, 18 both of which repudiated the right (previously recognized in England) of the carrier to limit his liability by pub- lic notices, and Gould v. Hill, 17 holding that the carrier's excep- tional responsibility could not be diminished even by special con- tract. Very soon after the decision in Gould v. Hill, however, the United States Supreme Court repudiated the ruling of the earlier case and held, in New Jersey Steam Navigation Co. v. Merchants' Bank, 18 that the carrier could limit his common-law liability by a special contract to that effect. After this ruling of the United States Supreme Court, the deci- sion in Gould v. Hill was repudiated even by the New York court which handed it down. 10 In due time this right of the carrier was recognized by the highest courts of all the states. It is now, then, the rule, approved by both state and federal courts, that the com- mon carrier of goods, in the absence of a statute prohibiting it, may restrict by means of a special contract his liability as an in- surer of the safe delivery of the goods, 20 which high responsibility is placed upon him by the rules of the common law. The extraordinary liability of common carriers is said to have " Smith v. Home, 8 Taunt 144; Wyld v. Rickford, 8 M. & W. 443 ; Brooke v. Pickwick, 4 Bing. 218 ; McCance v. London, etc., Ry. Co., 3 H. & C. 343, 34 L. J. Exch. 39; Peck v. North, etc, Ry. Co, 10 H. L. Cas. 4T3, 32 L. J. Q. B. 241; Mayhew v. Eames, 3 B. & C. 601. ib 19 Wend. (N. Y.) 234, 32 Am. Dec. 455. is 19 Wend. (N. T.) 251, 32 Am. Dec. 470. XT 2 Hill (N. T.) 623. 18 6 How. 344, 12 L. Ed. 465.' i» Parsons v. Monteath, 13 Barb. (N. Y.) 353; Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485, 62 Am. Dec. 125. 20 SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226; Merchants' Despatch Transp. Co. v. Leysor, 89 111. 43 ; Ormsby v. Union Pac. Ry. Co. (C. C.) 4 Fed. 706 ; Ull- man v. Chicago & N. W. R. Co., 112 Wis. 150, 88 N. W. 41, 88 Am. St. Rep. 949; Hoadley v. Northern Transportation Co., 115 Mass. 304, 15 Am. Rep. 106; Allam v. Pennsylvania Ry. Co., 183 Pa. 174, 38 Atl. 709, 39 L. R. A. 535; St. Louis, I. M. & S. R. Co. v. Bone, 52 Ark. 26, 11 S. W. 958; Lacey v. Ore- gon R. & Nav. Co, 63 Or. 596, 128 Pae. 999. § 123) METHOD OF LIMITING LIABILITY 36& been originally imposed by public policy, because of the danger of collusion between the carrier and robbers. The improved state of society, the better administration of the laws, and the rapidity and comparative safety of modern modes of transportation, are all factors that have, in the course of time, rendered less imperative the strict application of the rule holding the carrier up to the rigid responsibility of an insurer. Hence a contract exempting a carrier from liability as an insurer, and substituting fer it some less rigor- ous responsibility, came to be considered as just and reasonable, and no longer against public policy. But the uneven terms upon which the parties deal, often enabling the carrier practically to dic- tate his own terms, still make it a matter of public policy that some limitation be put upon the carrier's power thus to limit his liability. The American courts, ' however, as we shall see, have differed greatly as to the nature and extent of such limitations. METHOD OF LIMITING LIABILITY 123. The limitation of the carrier's common-law liability can be effected only by means of a contract assented to by the shipper. Notices limiting liability are ineffectual, unless the shipper assents to the terms of such notice ; and such assent cannot be inferred merely because the shipper, after he has knowledge of the notice, delivers the goods to the carrier for shipment. Notices When the power of the carrier to limit his insuring liability i* conceded, a question of paramount importance is the method by which such limitations can be effected. The effect of a notice, published by the carrier and brought home to the shipper, has resulted in a sharp difference of opinion between the English and American courts. English Rule In England the custom, resorted to by the carrier, of posting notices in public which purport to limit the carrier's responsibility, met with favor at the hands of the courts. It was there accordingly held that merely by general notice to that effect the carrier could restrict his common-law liability, when the shipper knew of such notice. 21 The evils of such a practice, however, led to the pas- 21 Gibbon v. Paynton, 4 Burr. 2298; Riley v. Home, 5 Blng. 217; Mayhew v. Eames, 3 B. & C. 601; Lesson v. Holt, 1 Starkie, 186; Phillips v. Edwards, 3 H. & N. 813 ; Maving v. Todd, 1 Starkie, 72; Nicholson v. Willan, 5 East; 507; London & N. W. Ry. Co. v. Dunham, 18 O. B. 826. Dob.Bailm. — 24 370 LIABILITY UNDER SPECIAL CONTRACT (Ch.U sage in 1854 of the Railway and Canal Traffic Act. Under this act the carrier was prohibited from limiting his liability by "notice, condition or declaration" ; but the right of the carrier to diminish his responsibility by a contract signed by the shipper was expressly recognized. American Rule But in this country the rule is well established that notices lim- iting the liability of the carrier are of no avail unless assented to by the shipper, 22 in which case a contract is established. 28 The American rule finds its justification in the essential nature of a common carrier's duty to the public. It is a common carrier's duty to carry for all who offer, and it cannot divest itself of this duty by any ex parte act of its .own, short of ceasing to be -a common carrier. 2 * The fact that a restrictive notice is shown to have been actually received or seen by the owner of the goods will not of itself raise the presumption that he assents to its terms, since it is as reasonable to infer that he intends to hold the carrier to his full common-law liability as that he assents to a limitation of this liability, and the burden of proof is upon the carrier to establish the contract limiting his liability, if he claims that one exists. 26 22 Western Transp. Co. v. Newhall, 24 111. 466, 76 Am. Dec. 760; Dorr v. New Jersey Steam Navigation Co., 11 N. Y. 485, 62 Am. Dec. 125; McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208 ; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349 ; Little v. Boston & M. R. R., 66 Ma 239; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Hartwell v. North- ern Pacific Exp. Co., 5 Dak. 463, 41 N. W. 732, 3 L. R. A. 342; Brown v. Adams Exp. Co., 15 W. Va. 812; Georgia R. Co. v. Gann, 68 Ga. 350; Central of Ga. R. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 128. 23 Gott v. Dinsmore, 111 Mass. 45, 52; Fibel v. Livingston, 64 Barb. (N. Y.) 179; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140; Brown v. Adams Exp. Co., 15 W. Va. 812; Farmers' & Mechanics' Bank v. Champ- lain Transp. Co., 23 Vt 186, 56 Am. Dec. 68; Blumenthal v. Brainerd, 38 Vt 402, 91 Am. Dec. 349; BLOSSOM v. DODD, 43 N. Y. 264, 3 Am. Sep. 701, Dobie Cas. Bailments and Carriers, 208; Davidson v. Graham, 2 Ohio St. 131 ; Rome R. Co. v. Sullivan, 14 Ga. 277 ; Gerry v. American Exp. Co., 100 Me. 519, 62 Atl. 498. 24 See Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; Cole v. Goodwin, 19 Wend. (N. Y.) 251, 32 Am. Dec. 470; Jones v. Voorhees, 10 Ohio, 145; BENNETT v. DDTTON, 10 N. H. 481, 487, Dobie Cas. Bailments and Carriers, 322 ; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 382, 12 L. Ed. 465; Moses v. Boston & M. R. R., 24 N. H. 71, 55 Am. Dec. 222; Kimball v. Rutland & B. R. Co., 26 Vt 256, 62 Am. Dec. 567; Dorr v. New Jersey Steam Navigation Co., 4 Sandf. (N. Y.) 137; Id., 11 N. Y. 485, 62 Am. Dec. 125; Michigan Cent. R. Co. v. Hale, 6 Mich. 243; Slocum v. Fairchild, 7 Hill (N. Y.) 292. 25 McMillan v. Michigan S. & N. I. R. Co.. 16 Mich. 79. Ill, 93 Am. Dec. § 123) METHOD OF LIMITING LIABILITY 371 "Conceding that there may be a special contract for a restricted liability," says Bronson, J., in a leading American case, 20 "such a contract cannot, I think, be inferred from a general notice brought home to the employer. The argument is that where a party de- livers goods to be carried, after seeing a notice that the carrier intends to limit his responsibility, his assent to the terms of the notice may be implied. But this argument entirely overlooks a very important consideration. Notwithstanding the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment. If the delivery of the goods under such circumstances authorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights, as it is that he was willing to yield to the wishes of the carrier. If a coat be ordered from a mechanic after he has given the customer notice that he will not furnish the article at a less price than $100, the as- sent of the customer to pay that sum, though it be double the value, may, perhaps, be implied; but if the mechanic had been under a legal obligation, not only to furnish the coat, but to do so at a reasonable price, no such implication could arise. Now, the car- rier is under a legal obligation to receive and convey the goods safely, or answer for the loss. He has no right to prescribe any oth- er terms ; and a notice can, at the most, only amount to a proposal for a special contract, which requires the assent of the other party. Putting the matter in the most favorable light for the carrier, the mere delivery of goods after seeing a notice cannot warrant a stronger presumption that the owner intended to assent to a re- stricted liability on the part of the carrier, than it does that he intended to insist on the liabilities imposed by law ; and a special contract cannot be implied where there is such an equipoise of probabilities." The American rule, then, is that, though, the carrier can modify his responsibility by contract, he cannot do so by notice. 27 When, however, the shipper does more than deliver the goods to the car- rier with knowledge of the notice, and actually assents to the terms of the notice, then the shipper is bound. 28 This is on the theory, of course, that the proposal contained in the notice, when accepted by the shipper, ripens into a contract. The limitation, in such a case, is not by notice, but by contract, and the notice is 208 (per Cooley, J.) ; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 383, 12 L. Ed. 465 (per Nelson, J.). 26 Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 245, 32 Am. Dec. 455. " See cases cited in note 22. 28 See cases cited in note 23. 372 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 merely a means by which the contract is made. The assent of the shipper thus converts an ex parte notice of the carrier into a con- tract agreed to by both parties to the transaction, and the limita- tions of the carrier's liability are thus validly effected by contract. SAME— NOTICE OF THE CARRIER'S REGULATIONS 124. Regulations of the carrier, enacted for the proper conduct of the carrier's business, are binding on the shipper, when they are reasonable and notice of them is brought home to the shipper, even without his assent. In order that the carrier may properly perform the manifold duties imposed upon him, the law gives him the right to establish regulations for the conduct of his business. 28 It will be seen that this right is given, not on the basis of the bestowal of an arbitrary privilege upon the carrier, but rather as a method of enabling him to serve the public more efficiently and more expeditiously. When such regulations are reasonable, and when they are brought to the notice of the shipper, he is bound by, and must con- form to, them. When loss or damage is due to the shipper's failure to conform to such reasonable regulations, of which he has knowl- edge, he is barred of a recovery against the carrier. 30 The shipper who has failed to comply with the regulations loses his right to recover from the carrier on the ground that the fault of the shipper contributed to the loss or damage. As such regula- tions are not attempts on the part of the carrier to limit his liability, no assent to the notice or regulation is necessary. 31 The notice is in no sense a proposal for a contract, but merely informs the ship- per of the rules under which the carrier's business is conducted. The validity of the regulation is derived, not from the assent of the shipper, but from its reasonableness. 32 The shipper who does busi- ness with the carrier must do so in conformity with the latter's known reasonable rules, and any departure therefrom will be at his peril. 2» Harp v. Choctaw, O. & G. R. Co., 125 Fed. 445, 61 C. C. A. 405; Robin- son v. Baltimore & O. R. Co., 129 Fed. 753, 64 C. C. A. 281 ; BULLARD v. AMERICAN EXP. CO., 10T Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St Rep. 358, Dobie Cas. Bailments and Carriers, 244. «o Western Transp. Co. v. Newhall, 24 111. 466, 76 Am. Dec. 760; Boscowitz v. Adams Exp. Co., 93 111. 523, 34 Am. Rep. 191; McMillan v. Michigan S. & N. I. R Co., 16 Mich. 79, 93 Am. Dec. 208. si Oppenheimer v. United States Exp. Co., 69 111. 62, 18 Am. Rep. 696; Western Transp Co. v. Newhall, 24 111. 466, 76 Am. Dec. 760. " Pennsylvania Coal Co. v. Delaware & H. Canal Co., 31 N. Y. 91. § 124) LIMITING LIABILITY — REGULATIONS OF OAEKIEE 873 Notices of reasonable regulations, which for the reasons just stated are valid without assent, and notices limiting liability, which are not valid without assent, are severable; and, though con- tained in the same paper, the latter may be rejected and the former enforced. 88 Regulations Requiring Shipper to Disclose the Value of the Goods Shipped Among the regulations of the carrier which have been most fre- quently before the courts are those in various forms requiring the shipper to reveal the value of the goods shipped. If the shipper does nothing to mislead the carrier, and the latter makes no in- quiries, the shipper is not bound to state the character or value of the goods. 3 * But, if the carrier inquires, the shipper must answer truly. 85 The carrier may make such an inquiry in the case of each individual shipper, or the carrier may by means of public notices dispense with the necessity of such special inquiries. 88 Thus a regulation of the carrier may provide that the goods are accepted as not exceeding in value a specific amount unless the shipper discloses a value in excess of such amount. The carrier has a right to graduate his charges according to the value of the goods, which value largely determines the measure of the carrier's risk, as well as the nature of the precautions the carrier must take to deliver the goods safely. 87 If the shipper, with full knowledge of such regulation, is silent as to the value of the goods, the ship- per would be bound by the terms of such notice and could not re- cover an amount in excess of that fixed in the notice. 88 »» Oppenheimer v. United States Express Co., 69 111. 62, 18 Am. Rep. 596; Moses v. Boston 4 M. R. R., 24 N. H. 71, 55 Am. Dec. 222 ; The Majestic, 9 C. O. A. 161, 60 Fed. 624, 23 L. R. A. 746. " Faulk t. Columbia, N. & L. Ry. Co., 82 S. C. 369, 64 S. E. 383 ; NEW YORK C. & H. R. R. CO. v. FRALOFF, 100 U. S. 24, 25 L. Ed. 531, Dobie Cas. Bailments and Carriers, 364 ; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140 ; Camden & A. R. Co. v. Baldauf , 16 Pa. 67, 55 Am. Dec. 481. See ante, p. 335. »« Phillips v. Earle, 8 Pick. 182. See ante, p. 336. »« Batson v. Donovan, 4 Barn. & Aid. (Eng.) 21, 28. " Gibbon v. Paynton, 4 Burrows (Eng.) 2298 (per Lord Mansfield, and Aston, J.); Tyly v. Morrice, Carth. (Eng.) 485 (per Holt, O. J.); Southern Exp. Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783; Batson v. Donovan, 4 Barn. & Aid. (Eng.) 21. •» Orange County Bank v. Brown, 9 Wend. (N. X.) 85, 115, 24 Am. Dec. 129. 374 LIABILITY UNDER SPECIAL CONTRACT (Ch.ll SAME— FORM OF THE CONTRACT 125. While the limitation of the carrier's liability must be by con- tract, it is not essential that this contract should be in any special form. Acceptance by the shipper of a bill of lading, or similar instru- ment purporting generally to contain the contract between the carrier and shipper, creates a contract binding on both parties. While the carrier's limitation of liability must be made through a contract, and not merely by notice brought home to the shipper, this contract requires no special form. 89 It can be made in any way in which contracts are usually made. Such contracts may be oral or written, express or implied, and the general rules as to the for- mation of contracts are applicable. 40 Bills of Lading In the overwhelming majority of cases, the contract between the shipper and carrier is contained in the bill of lading. This well- known instrument, by its very character, gTves notice to the shipper or other person dealing with it that, besides being a receipt for the goods delivered, it is a contract embodying the stipulations and terms under which the carrying of the goods is undertaken. 41 Per- See, also, Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393; Cole v. Goodwin, 19 Wend. (N. T.) 251, 32 Am. Dec. 470 ; Judson v. Western R. Corp., 6 Allen (Mass.) 486, 83 Am. Dec. 646 ; Magnin v. Dinsmore, 62 N. T. 35, 20 Am. Kep. 442; Hopkins v. Westcott, 6 Blatchf. 64. Fed. Cas. No. 6,692; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465; Farmers' & Mechanics' Bank v. Champlain Transp. Co., 23 Vt. 186, 56 Am. Dec. 6S. Where the effect of failure to inform the bailee of the contents of sealed packages is to prevent him from exercising the care he would otherwise have given, the bailee is liable only for positive misfeasance. Gibbon v. Paynton, 4 Burrows (Bag.) 2298. 89 The shipper's assent must be clear, however, and the burden of proving this rests on the carrier. Coats v. Chicago, R. I. & P. R. Co., 134 111. App. 217; Adams Express Co. v. Adams, 29 App. D. C. 250; MURPHY v. WELLS FARGO & CO. EXPRESS, 99 Minn. 230, 108 N. W. 1070, Dobie Cas. Bail- ments and Carriers, 218; Central of Georgia R. Co. v. City Mills Co., 128 Ga. 841, 58 S. E. 197. *o American Transp. Co. v. Moore, 5 Mich. 368; Bates v. Weir, 121 App. Div. 275, 105 N. X. Supp. 785; Missouri, K. & T. R. Co. v. Patrick, 144 Fed. 632, 75 C. C. A. 434. *i BLOSSOM v. DODD, 43 N. T. 264, 3 Am. Rep. 701, Dobie Cas. Bailments and Carriers, 208; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Wells, Fargo & Co.'s Express Co. v. Fuller, 4 Tex. Civ. App. .213, 23 S. W. 412; McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208; § 125) LIMITING LIABILITY — FORM OF LIMITATION 375 sons receiving these instruments, and others of like character and tenor, are therefore presumed by law to know that they do contain the terms upon which the goods are to be carried. 42 If, therefore, at the time the goods are delivered to the carrier, the shipper accepts a bill of lading from the carrier, then the law presumes, in the absence of fraud or deception on the part of the carrier, the assent of the shipper to the terms, conditions, and re- strictions contained in the bill of lading.* 8 Though the bill of lad- ing is signed only by the carrier, it becomes binding on the shipper without any signature or further assent on his part other than that implied from his receiving it and acting upon it. 4 * The bill of lading is binding in such cases, not only without the signature or other express assent to the terms therein contained, but even though the shipper has neither read nor understood the terms of the bill of lading.* 5 For the reasons indicated in the pre- Montague v. The Henry B. Hyde (D. C.) 82 Fed. 681; Cox v. Central Ver- mont R. Co., 170 Mass. 129, 49 N. E. 97 ; Schaller v. Chicago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042. "Courteen v. Kanawha Dispatch, 110 Wis. 610, 86 N. W. 176, 55 L. R. A. 182; Davis v. Central Vermont R. Co., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852; Merrill v. American Exp. Co., 62 N. H. 514; Graves v. Adams Exp. Co., 176 Mass. 280, 57 N. E. 462; Pacific Exp. Co. v. Foley, 46 Kan. 457, 26 Pac. 665, 12 L. R. A. 799, 26 Am. St Rep. 107; Mouton v. Louisville, etc., Ry. Co., 128 Ala. 537, 29 South. 602. 48 Kirkland v. Dinsmore, 62 N. T. 171, 20 Am. Rep. 475; Mulligan v. Illi- nois Cent. R. Co., 36 Iowa, 181, 14 Am. Rep. 514; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960; Central of Georgia R. Co. v. City Mills Co., 128 Ga. 841, 58 S. E. 197 ; Lansing v. New York Cent. & H. R. R. Co., 52 Misc. Rep. 334, 102 N. Y. S. 1092; Smith v. American Exp. Co., 108 Mich. 572, 66 N. W. 479; Michaiitschke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683, 50 Pac. 847 ; Lawrence v. New York, P. & B. R. Co., 36 Conn. 63 ; Cau v. Texas & P. R. Co., 194 U. S. 427, 24 Sup. Ct, 663, 48 L. Ed. 1053; Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113, 14 L. R. A. 433, 33 Am. St. Rep. 881; Merchants' D. T. Co. v. Bloch, 86 Tenn. 392, 6 S. W. 881, 6 Am. St. Rep. 847 ; Pacific Exp. Co. v. Foley, 46 Kan. 457, 26 Pac. 665, 12 L. R. A. 799, 26 Am. St. Rep. 107 ; Pacific Exp. Co. v. Ross (Tex. Civ. App.) 154 S. W. 340. In Illinois and Ohio, the contrary view has been held. Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 111.. 9, 61 N. E. 1095, 88 Am. St. Rep. 68; Wabash Ry. Co. v. Thomas, 222 111. 337, 78 N. E. 777, 7 L. R. A. (N. S.) 1041; Illinois Match Co. v. Chicago, R. I. & P. R. Co., 250 111. 396, 95 N. E. 492; Gaines v. Union Transp. & Ins. Co., 28 Ohio St. 418 ; Delta Bag Co. v. Frederick Leyland & Co., 173 111. App. 38. ** Inman & Co. v. Seaboard Air Line R. Co. (C. O.) 159 Fed. 960; Steele V. Townsend, 37 Ala. 247, 79 Am. Dec. 49; Kallman v. United States Exp. Co., 3 Kan. 205; Hengstler v. Flint & P. M. R. Co., 125 Mich. 530, 84 N. W. 1067. See,' also, cases cited in preceding note. « Davis v. Central Vermont R. Co., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852; McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208; Mc- 376 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 ceding paragraphs, the law, in the absence of fraud or deception, presumes that the contract is binding on the shipper either because he has read it, or otherwise learned the nature of its contents, or because, in the absence of either of these, he is willing to consent to its terms. Ignorance of the stipulations in the bill of lading or failure to read it is therefore no defense to its binding force, under such circumstances, as a contract. It has even been held that the bill of lading was binding on the shipper, though, through illiteracy or ignorance of the English language, he was unable to read the bill of lading, when this inability was not known by the carrier. 46 In order that the bill of lading may have this effect, and be bind- ing owing to its mere acceptance by the shipper, the bill of lad- ing must have been delivered to the shipper at the time of, or before, the shipment of the goods." When the carrier accepts the goods without limiting his liability, the shipper's consent to limitations wilj not be presumed merely from his acceptance of a bill of lading subsequently delivered to him by the carrier. 48 The rule as to merging all prior oral negotiations in the written contract has plain- ly no application in such a case. Acceptance of the subsequent bill of lading would, however, be binding on the shipper, if, at the time the goods are accepted by the carrier, there was then an under- standing between the parties, express or implied, that the ship- ment was to be governed by the terms of the bill of lading which •the carrier was to deliver later. 4 ' Fadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St Rep. 721; Atchison, T. & S. F. Ry. Co. v. Dill, 48 Kan. 210, 29 Pac. 148; Hill v. Syracuse, B. & N. Y. R. Co., 73 N. Y. 351, 29 Am. Rep. 163; St. Louis, I. M. & S. Ry. Co. v. Weakly, 50 Ark. 397, 8 S. W. 134, 7 Am. St Rep. 104. *• Jones v. Cincinnati, S. & M. R. Co., 89 Ala. 376, 8 South. 61 ; Fibel v. Livingston, 64 Barb. (N. Y.) 179. " Gage v. Tirrell, 9 Allen (Mass.) 299; Southard v. Minneapolis, St P. & S. S. M. R. Co., 60 Minn. 382, 62 N. W. 442, 619; Harris t. Great Northern R. Co., 48 Wash. 437, 93 Pac. 908, 96 Pac. 224; McGregor v. Oregon R. & Nav. Co., 50 Or. 527, 93 Pac. 465, 14 L. R. A. (N. S.) 668; Illinois Cent. R. Co. v. Craig, 102 Tenn. 298, 52 S. W. 164; The Arctic Bird (D. C.) 109 Fed. 167; Farnsworth v. National Exp. Co., 166 Mich. 676, 132 N. W. 441. 48 Wilde v. Merchants' Despatch Transp. Co., 47 Iowa, 247, 29 Am. Rep. 479; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527; Merchants' Dispatch & Transp. Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Union P. Ry. Co., v. Marston, 30 Neb. 241, 46 N. W. 485; Galveston, H. & S. A. Ry. Co. v. Botts, 22 Tex. Civ. App. 609, 55 S. W. 514; Central R. R. y. Dwight Mfg. Co. 75 Ga. 609. *» Shelton v. Merchants' Dispatch Transp. Co., 59 N. Y. 258; Leitch v. Union R. Transp. Co., Fed. Cas. No. 8,224; Union Pac. Ry. Co. v. Beardwell, 79 Kan. 40, 99 Pac. 214; Richmond, N., I. & B. R. Co. v. Richardson, 66 S. W. 1035, 23 Ky. Law Rep. 2234. Where it was disputed whether the goods in controversy had been carried I 125) LIMITING LIABILITY — FORM OP LIMITATION 377 Again, this presumption of assent by the shipper to the stipula- tions contained in the bill of lading does not attach, unless it is clear that the particular stipulation was so arranged as clearly to form a part of the contract which the bill of lading is presumed to em- body Thus, mere acceptance alone does not import assent on the part of a shipper to stipulations printed on the back of a bill of lading, 80 or 'stipulations so covered by stamps as to make them illegible. 61 Express Receipts Express receipts stand upon the same general footing as bills of lading. When accepted without objection, they, too, constitute the ■contract between the parties. 52 In some of the earlier cases, it under an original agreement between the consignee and the carrier, or whether such alleged agreement was a mere preliminary negotiation, and that the actual shipping agreement was between the defendant and the .con- signors, that question was for the jury. Henry J. Perkins Co. v. American Exp. Co., 199 Mass. 561, 85 N. E. 895. oo Inman & Co. v. Seaboard Air Line E. Co. (C. C.) 159 Fed. 960 ; Michi- gan Cent. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. (U. S.) 318, 21 L. Ed. 297; Newell v. Smith, 49 Vt 255; Baltimore & O. R. Co. v. Doyle, 142 Fed. 669, 74 C. C. A. 245; St. Louis & S. F. Ry. Co. v. Tribbey, 6 Kan. App. 467, 50 Pac. 458; Merchants' Despatch Transp. Co. v. Furthmann, 149 111. 66, 36 N. E. 624, 41 Am. St Rep. 265. si Perry v. Thompson, 98 Mass. 249. B2 Huntington v. Dinsmore, 4 Hun (N. T.) 66; Id., 6 Thomp. & C. (N. T.) 195; Snider v. Adams Exp. Co., 63 Mo. 376 ; Soumet v. National Exp. Co., 66 Barb. (N. Y.) 284; Brehme v. Dinsmore, 25 Md. 328; Christenson v. American Exp. Co., 15 Minn. 270 (Gil. 208), 2 Am. Rep. 122; Kirkland v. Dinsmore, 62 N. Y. 171, 20 Am. Rep. 475; Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575; Mag- nin v. Dinsmore, 56 N. Y. 168; Westcott v. Fargo, 61 N. Y. 542, 19 Am. Rep. 300 ; Adams Exp. Co. v. Haynes, 42 111. 89 ; Merchants' Despatch Transp. Co. v. Les- sor, 89 111. 43; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Boorman v. American Exp. Co., 21 Wis. 152. But see Adams Exp. Co. v. Stettaners, 61 111. 184, 14 Am. Rep. 57; American Merchants' Union Exp. Co. v Schier, 55 111. 140; Bennett v. Virginia Transfer Co., 80 Misc. Rep. 222, 140 N. Y. Supp. 1055; Jonasson v. Weir, 130 App. Div. 528, 115 N. Y. Supp. 6; Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469, 33 Sup. Ct. 267, 57 L. Ed. 600. Where a person delivers a package to an express com- pany and accepts a receipt, it is presumed to contain the terms of the con- tract, and if he desires to avoid such terms the burden is on the person ac- -cepting the receipt to show that he was misled by misrepresentations or fraud, and mere failure to examine the receipt is not sufficient. Porteous v. Adams Exp. Co., 115 Minn. 281, 132 N. W. 296. Delivery by an express company to a shipper, and his acceptance without dissent, of a shipping receipt' con- taining a clause of limited liability, raises a presumption that the shipper Tmew of the restriction and would be bound thereby; but such presumption may be rebutted by evidence negativing knowledge and assent. Hill v. Adams Exp. Co., 80 N. J. Law, 604, 77 Atl. 1073. Plaintiff, a guest at a ho- tel, gave a bell boy a package addressed to plaintiff in another city, instruct- 378 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 was held that the mere delivery of such receipts did not amount to a contract, unless the terms contained in the receipts were read and assented to by the shipper. 68 But the practice of embodying the terms of shipment in such receipts has become so general that they are no longer distinguishable in this respect from bills of lading. A distinction, however, must be observed between the great ex- press companies of the country, operating on fast passenger trains and boats, and local express companies that make a business of receiving baggage from travelers for transportation to their im- mediate destination. In the latter case, there is nothing in the na- ture of the transaction which should naturally lead the traveler to suppose that he was receiving and accepting the written evidence of a contract, rather than a mere identifying voucher, and therefore he is not bound by the terms of the receipt received, in the absence of other evidence that he assented thereto. 6 * Tickets, Baggage Checks, Receipts, Etc. ' Assent to conditions and limitations printed on railroad and steamboat tickets, baggage checks, receipts, and the like, is not presumed from a mere acceptance of these without objection. 58 lng the boy to "take this to Adams Express." The boy did as directed, neg- lected to value the package, and received an express receipt containing a stipulation limiting the carrier's liability on unvalued packages to $50. Held, that the boy was plaintiff's agent, and, being authorized to deliver the pack- age for shipment, was authorized to bind plaintiff by his acceptance of such limited liability contract, under the rule that an agent to whom the owner intrusts goods for delivery to a carrier must be regarded as having author- ity to stipulate for the ordinary terms of transportation. Addoms v. Weir, 56 Misc. Rep. 487, 108 N. Y- Supp. 146. In an action against an express company, it appeared that at the time of the shipment a receipt limiting the carrier's liability to fraud and gross negligence was delivered to the shipper. Plaintiff testified that he did not read the receipt at the time of shipment, but upon cross-examination stated that the receipt came out of his own book of receipts, in his possession at the time of the shipment. Held, insuffi- cient to support a finding that the shipper did not have notice of the limi- tation of liability contained in the receipt. Fried v. Wells, Fargo & Co., 51 Misc. Rep. 669, 100 N. Y. Supp. 1007. In Dakota and Michigan the ship- per's assent is by statute required to be shown by his signature. Hartwell v. Northern Pacific Exp. Co., 5 Dak. 463, 41 N. W. 732, 3 L. R. A. 342 ; Feige v. Michigan Cent R. Co., 62 Mich. 1, 28 N. W. 685. And see Southern Exp. Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783. 8 Kirkland v. Dinsmore, 2 Hun (N. Y ) 46 ; Id., 4 Thomp. & C. (N- Y.) 304, reversed 62 N. Y. 171, 20 Am. Rep. 475; Belger v. Dinsmore, 51 Barb. (N. Y.) 69, reversed 51 N. Y. 166, 10 Am. Rep. 575; Adams Exp. Co. v. Nock, 2 Duv. (Ky.) 562, 87 Am. Dec. 510; Kember v. Southern Exp. Co., 22 La. Ann. 158, 2 Am. Rep. 719. 6 4 BLOSSOM v. DODD. 43 N. Y. 264, 3 Am. Rep. 701, Dobie Cas. Bailments and Carriers, 208. See, also, cases cited in the note following. «« Prentice v. Decker, 49 Barb. (N. Y.) 21; Limburger v. Westcott, 49 Bartx (N. Y.) 283; Sunderland v. Westcott, 2 Sweeney (N. Y.) 260; Isaacson v. § 125) LIMITING LIABILITY — FORM OP LIMITATION 379 The reason for this is that the nature of such instruments is not such as to convey to the mind of the shipper the idea of a contract, in such a manner as to raise the presumption that he knew it was a contract expressive of the terms upon which the goods are car- ried, or an agreement limiting the liability of the carrier. A railroad ticket, for example, is not the contract between the carrier and passenger, but is merely evidence of such contract. 66 Such ticket is primarily a convenient voucher or token showing that the passenger has paid for the privilege of being carried be- tween two places. Therefore a passenger is not bound by a notice printed on his ticket, unless he in some way assents to it. 67 When the passenger's attention is called to the notice, however, such as- sent could be implied from acceptance without objection. 08 So tokens given in exchange for baggage checks are not of such a nature as to put persons on notice as to memoranda printed upon New York Cent. & H. R. R. Co., 94 N. Y. 278, 46 Am. Rep. 142, and cases cited infra. In the absence of fraud, the rights of a carrier and shipper are controlled by the contract made on receipt of the property for transporta- tion, and a contract limiting the liability to a specified sum in case of loss is valid; but this rule does not apply to carriers of baggage, the receipt for baggage being only a voucher enabling the owner to follow and identify his property. Baum v. Long Island R. Co., 58 Misc. Rep. 34, 108 N. Y. Supp. 1113. See post, § 194. se See post, p. 624; Rawson v. Pennsylvania R. Co., 48 N. Y. 212, 217, 8 Am. Rep. 543 ; Sleeper v. Pennsylvania R, Co., 100 Pa. 259, 45 Am. Rep. 380 ; Chol- lette v. Omaha & R. V. R. Co., 26 Neb. 159, 41 N. W. 1106, 4 L. R. A. 135; New York, L. E. & W. R. Co. v. Winter, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71; Burke v. S. E. Ry. Co., 5 C. P. D. (Eng.) 1, 49 L. J. C. P. 107. 57 Louisville & N. R. Co. v. Turner, 100 Tenn. 213, 47 S. W. 223, 43 L. R. A. 140; The Majestic (D. C.) 56 Fed. 244; Boyd v. Spencer, 103 Ga. 828, 30 S. E 841, 68 Am. St. Rep. 146; San Antonio & A. P. Ry. Co. v. New- man, 17 Tex. Civ. App. 606, 43 S. W. 915; Rawson v. Pennsylvania R. Co., 48 N. Y. 212, 8 Am. Rep. 543; Mauritz v. New York, L. E. & W. R. Co. (C. C.) 23 Fed. 765. But one who accepts and travels on a "contract ticket" issued by a steamship company for the voyage from England to America, which ticket contained two quarto papers of printed matter, describing the rights and liabilities of the parties, is bound by the stipulations therein, though he has not read or signed. FONSECA v. CUNARD S. S. CO.', 153 Mass. 553, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660, Dobie Cas. Bailments and Carriers, 353. The principle of this last case applies when- ever the ticket purports to express the complete contract and express or Implied notice of this is brought to the passenger. BOYLAN v. HOT SPRINGS R. CO., 132 U. S. 146, 10 Sup. Ct. 50, 33 L. Ed. 290, Dobie Cas. Bailments and Carriers, 355; Eastman v. Maine Cent. R. R., 70 N. H. 240, 46 Atl. 54; Wenz v. Savannah, F. & W. Ry. Co., 108 Ga. 290, 33 S. E. 970. See post, p. 625. 6s Baltimore & O. R. Co. v. Campbell, 36 Ohio St. 647, 38 Am. Rep. 617; Rawson v. Pennsylvania R. Co., 48 N. Y. 212, 8 Am. Rep. 543. 380 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 them, and persons receiving them are not presumed to know their contents, or to assent to them. 59 The bill of lading, too, unlike the ticket or check, plays an im- portant part in commercial transactions as a method of transferring title or otherwise dealing with the goods for which it stands. SAME— CONSIDERATION OF THE CONTRACT 126. Like other contracts, the contract limiting the carrier's liabil- ity must be founded upon a consideration. This consid- eration is usually found in the reduction of the rate charg- ed for carrying the goods. The contract limiting the carrier's liability must possess the or- dinary elements of contractual validity, and, to be effectual, must hence be supported by a consideration. 60 But as common carriers are bound, owing to their public profession, to carry without any contract limiting their liability, their mere agreement to carry does not furnish any consideration for a contract to limit their liability. 61 In order, therefore, that such contracts must be valid, some other consideration must be found, moving from the carrier to the shipper. It is a sufficient consideration, however, if the carrier agrees to carry for a reduced compensation because of the limitation of his liability. 62 The same is true when the carrier agrees to do o» BLOSSOM v. DODD, 43 N. T. 264, 3 Am. Rep. 701, Doble Cas. Bailments and Carriers, 208; Madan v. Sherard, 73 N. Y. 329, 29 Am. Rep. 153; Indi- anapolis, & C. R. Co. v. Cox, 29 Ind. 360, 95 Am. Dec. 640. «o Southard v. Minneapolis, St. P. & S. S. M. Ry. Co., 60 Minn. 382, 62 N. W. 442, 619; Gardner v. Southern R. Co., 127 N. C. 293, 37 S. E. 328; York Mfg. Co. v. Illinois C. R. Co., 3 Wall. 107, 18 L. Ed. 170; Louisville & N. E. Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 7 L. R. A. 162; Mouton v. Louis- ville & N. R. Co., 128 Ala. 537, 29 South. 602 ; Wilcox v. Chicago G. W. E. Co., 135 Mo. App. 193, 115 S. W. 1061; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960; St Louis, I. M. & S. R. Co. v.. Furlow, 89 Ark. 404, 117 S. W. 517; Jones v. Southern Exp. Co. (Miss.) 61 South. 165. 6i. St. Louis, I. M. & S. R. Co. v. Caldwell, 89 Ark. 218, 116 S. W. 210; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Illinois Cent. R. Co. v. Lancashire Ins. Co., 79 Miss. 114, 30 South. 43 ; Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Mc- Millan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208; German v. Chicago & N. W. R. Co., 38 Iowa, 127. See, also, cases cited in preceding note. «2 Louisville & N. R. Co. v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 7 L. E. A. 162; Carter & Co. v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Scott County Milling Co. v. St. Louis, I. M. & S. Ry. Co., 127 Mo. App. 80, 104 S. W. 924; Johnstone v. Richmond & D. R. Co., 39 S. C. 55, 17 S. B. 512;. § 126) LIMITING LIABILITY — OONSIDEBATION FOB LIMITATION 381 something he is not already bound to do, 6 * such as receiving a passenger on freight trains,** or carrying a customer free of charge. 66 If the rate of compensation is fixed by law, so that the carrier can charge neither more nor less than a given amount for the transportation of goods, an agreement to carry for such rate would not be any consideration for an agreement on the part of the shipper limiting the carrier's liability. 60 So, also, an agreement to carry at the highest rate allowed by law furnishes no consider- ation for a contract limiting the carrier's liability." St Louis, I. M. & S. R. Co. v. Furlow, 89 Ark. 404, 117 S. W. 517; Jones v. Southern Exp. Go. (Miss.) 61 South. 165; Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Nelson v. Hudson - River R. Co., 48 N. Y. 498; Jennings v. Grand Trunk Ry. Co., 52 Hun, 227, 5 N. Y. Supp. 140; Dillard v. Louisville & N. R. Co., 2 Lea (Tenn.) 288. A stipulation in a bill of lading exempting the receiving carrier from his common-law liability for the loss of goods while in its warehouse, at the end of its line, and before delivering to the connecting carrier, is void, unless there is a special con- sideration for such exemption, other than the mere receipt of the goods and the undertaking to carry them. Wehmann v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546. «s California Powder Works v. Atlantic & P. R. Co., 113 Cal. 329, 45 Pac. 691, 36 L. R. A. 648 (accepting dangerous articles which carrier was not bound to carry) ; Robertson v. Old Colony R. Co., 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482 (unique contract for transportation of a circus train) . e* Arnold v. Illinois Cent. R. Co., 83 111. 273, 25 Am. Rep. 386. eo Carter & Co. v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369. ee Wehmann v. Minneapolis, St. P. & S. S. M. R. Co., 58 Minn. 22, 59 N. W. 546. Where a statute requires a railroad carrying United States mail to carry a postal clerk with the mail without charge, a limitation of the car- rier's liability, contained in a pass issued to such postal clerk, is without consideration and void. Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562, 47 Am. Rep. 75. Where a carrier had but one regular rate applicable to a given class of property, it is not a reduced or a special rate that will serve as a consideration for an owner's risk contract, as the word "reduced" implies a comparison, and it is not permissible to go outside the subject- matter to seek the comparison; but it must be made with another higher rate on the same class of property, and where there is no such rate there can be no reductions. Leas v. Quincy, O. & K. C. R. Co., 157 Mo. App. 455, 136 S. W. 963. A railroad, in compliance with the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U~. S. Comp. St 1901, p. 3154]) placed on file with the Interstate Commerce Commission a schedule of tariffs, showing two rates. The railroad subsequently contracted to carry goods. No freight rate was agreed to, either verbally or in the bill of lading, the latter not reciting that a reduced rate was charged. Held, that no consideration was shown for a contract limiting the liability of the railroad on account of car- rying the property for the lower rate. Phoenix Powder Mfg. Co. v. Wabash B. Co., 120 Mo. App. 566, 97 S. W. 256. « McMillan v. Michigan S. & N. I. R. Co., 16 Mich. 79, 93 Am. Dec. 208; 382 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 When, however, the carrier actually carries for a lower rate than he would charge, were his responsibility as at common law, then the contract is based on a real consideration. 68 The shipper grants, and the carrier benefits by, a diminished liability; the carrier grants, and the shipper benefits by, a reduced rate. Here is the quid pro quo, a mutual and sufficient consideration. In the absence of proof to the contrary, there is a prima facie presumption of a sufficient consideration. 89 The basis of this pre- sumption is the practice of carriers to graduate their rates accord- ing to the risk that they run and the responsibilities they incur. 70 Shipper's Option of Carrier's Full Responsibility A corollary to .the principle that the contract limiting liability must be based on a consideration is the rule that the shipper has a right to insist that the goods be carried under the full common-law liability if a commensurate and reasonable rate be paid. 71 Were it not for this option on the part of the shipper, not only would there be no real consideration for the contract limiting liability, but Bissell v. New York Cent. R. Co., 25 N. X. 442, 82 Am. Dec. 369 ; German v. Chicago & N. W. R. Co., 38 Iowa, 127. 68 See cases cited in note 62. eo Schaller v. Chicago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042; Can v. Texas & P. R. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; Weh- man v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546; Arthur v. Texas & P. R. Co., 139 Fed. 127, 71 C. C. A. 391 ; Stewart v. Cleve- land, C, C. & St. L. Ry. Co., 21 Ind. App. 218, 52 N. E. 89. Particularly is this true when the contract recites that it is based on a consideration. Geor- gia Southern & F. R. Co. v. Greer, 2 Ga. App. 516, 58 S. E. 782; Mires v. St. Louis & S. F. R. Co., 134 Mo. App. 379, 114 S. W. 1052. A declaration contained in a bill of lading to the effect that a limitation of liability ex- pressed in the bill was in consideration of a reduced rate 1 is prima facie evidence of such reduction; and it was error to tell the jury in an action for damages for failure to transport safely, that they could not consider the contract as to the limitation without other evidence of consideration. Wa- bash R. Co. v. Curtis, 134 111. App. 409. This presumption is, of course, a prima facie one, and it may be rebutted (even when there is a recital of a consideration) by evidence showing that the contract limiting the carrier's liability is in reality supported by no consideration. McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Lake Erie & W. R. Co. v. Holland, 162 Ind. 406, 69 N. E. 138, 63 L. R. A. 948; Georgia Rail- road & Banking Co. v. Reid, 91 Ga. 377, 17 S. E. 934. 70 St. Louis, I. M. & S. Ry. Co. v. Lesser, 46 Ark. 236; Schaller v. Chi- cago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042; Courteen v. Kanawha Dis- patch, 110 Wis. 610, 86 N. W. 176, 55 L. R. A. 182. See, also, cases cited in the preceding note. 7i St. Louis Southwestern R. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594, 115 S. W. 393; Illinois Cent. R. Co. v. Lancashire Ins. Co., 79 Miss. 114, 30 South. 43; Paddock v. Missouri Pac. Ry. Co., 155 Mo. 524, 56 S. W. 453; Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210, 29 Pac. 148. § 127) LIMITING LIABILITY — CONSTRUCTION OF LIMITATION 383 it could not be said that the shipper had freely and voluntarily en- tered into the contract. If the carrier had a right to force the ship- per into a contract limiting liability or else refuse to carry the goods, then the element of choice on the part of the shipper, from which such contracts derive their binding force, would be utterly lacking. But when the carrier offers the shipper the alternative of full re- sponsibility at the full price, or reduced responsibility at a reduced price, and the shipper, after weighing the comparative advantages of the two schemes, voluntarily accepts the latter, then clearly there is the freest choice. Accordingly, when the carrier refuses to carry the goods unless the shipper accepts a contract of limited liability, this contract would not then be binding on the shipper, though he sent his goods under it. 72 Nor, in such a case, would it be a defense for the carrier to say that the shipper could have declined to ship the goods and sued the carrier for his refusal to carry. 78 When, how- ever, the option really existed, it is not essential that, in each case, the carrier must expressly offer to the shipper his choice of the two liabilities with the attendant difference in rates. 7 * As has al- ready been seen, for the full insuring responsibility, the carrier can- not charge more than is reasonable under the circumstances. 76 SAME— CONSTRUCTION OF THE CONTRACT 127. Contracts limiting the common-law liability of the carrier of goods are to be construed strictly against the carrier. Perhaps it should first be indicated that the common carrier of goods does not lose his character as such merely by means of con- 72 Stewart v. Cleveland, 0„ C. & St. L. Ry. Co., 21 Ind. App. 218, 52 N. E. 89; Kimball v. Rutland & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567; Mc- Fadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721 ; Pacific Exp. Co. v. Wallace, 60 Ark. 100, 29 S. W. 32 ; Atchison, T. & S. F. R. Co. v. Mason, 4 Kan. App. 391, 46 Pac. 31. 'a Little Rock & Ft. S. Ry. Co. v. Cravens, 57 Ark. 112, 20 S. W. 803, 18 L. R. A. 527, 38 Am. St. Rep. 230. i* Louisville & N. Ry. Co. v. Sowell, 90 Tenn. 17, 15 S. W. 837. Such op- tion must be real, however, and not merely colorable. Illinois Cent. R. Co. v. Craig, 102 Tenn. 298, 52 S. W. 164 ; Little Rock & Ft. S. Ry. Co. v. Crav- ens, 57 Ark. 112, 20 S. W, 803, 18 L. R. A. 527, 38 Am. St. Rep. 230. Where a carrier did not refuse to transport freight, except under a special contract limiting liability for gross negligence, and then only to the extent of a valu- ation fixed in the contract, but such contract was thoroughly discussed be- fore executed, and no objection was made to it by the shipper, who Inserted in the contract in his own handwriting the valuation on the property, the contract was not imposed on the shipper and the carrier's liability was as fixed by it. Mering v. Southern Pac. Co., 161 Cal. 297, 119 Pac. 80. •« See ante, pp. 284, 319 ; post, § 147. 384 LIABILITY TJNDEE SPECIAL CONTRACT (Ch. 11 tracts limiting his liability. 76 These contracts do not serve to rid the carrier of his public employment, and he remains as before a common and not a private carrier. This is none the less true, though the liability of the common carrier has been, as to the particular shipment, so reduced by contract as to correspond ex- actly to the liability of a private carrier. 77 Contracts limiting liability are by the courts uniformly construed against the carrier. 78 All doubts and ambiguities will be resolved in favor of the shipper; and when the contract is capable of two meanings, the courts incline to the one least beneficial to the car- rier. 79 Specific exemptions will not be enlarged by the use of gen- eral language in the same connection. For example, a release from liability for loss arising from "leakage or decay, chafing or break- age, or from any other cause," does not exempt the carrier from Ha- re Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; Crawford v. Southern Ry. Co., 56 S. C. 136, 34 S. E. 80; Liverpool & G. W. S. Co. v. Phoenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788 ; Gaines v. Union Transp. & Ins. Co., 28 Ohio St. 418; Hull v. Chicago, St. P., M. & O. Ry. Co., 41 Minn. 510, 43 N. W. 391, 5 L. R. A. 587, 16 Am. St. Rep. 722. tt See cases cited in preceding note. 78 Magnin v. Dinsmore, 56 N. T. 168; Edsall v. Camden & A. R. & Transp. Co., 50 N. Y. 661; Hooper v. Wells, Fargo & Co., 27 Cal. 11, 85 Am. Dec 211; Levering v. Union Transp. & Ins. Co., 42 Mo. 88, 97 Am. Dec. 320; Ros- enfeld v. Peoria, D. & E. Ry. Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. 500; St. Louis & S. E. Ry. Co. v. Smuck, 49 Ind. 302; Gronstadt v. Witthoff (D. C.) 15 Fed. 265; Marx v. National Steamship Co. (D. C.) 22 Fed. 680- Ayres v. Western R. Corp., 14 Blatchf. 9, Fed. Cas. No. 689; Hoye v. Pennsyl- vania R. Co., 191 N. Y. 101, 83 N. E. 586, 17 L. R. A. (N. S.) 641, 14 Ana Cas. 414; Estes v. Denver & R. G. R. Co., 49 Colo. 378, 113 Pac. 1005; E. O. Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258, 26 S. W. 704; Cream City R. Co. v. Chicago, M. & St. P. Ry. Co., 63 Wis. 93, 23 N. W. 425, 53 Am. Rep. 267 ; Galloway v. Erie R. Co., 116 App. Div. 777, 102 N. Y. Supp. 25; MYNARD v. SYRACUSE, B. & N. Y. R. CO., 71 N. Y. 180, 27 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 213. i» Munn v. Baker, 2 Starkie (Eng.) 255. And see Edsall v. Camden & A. R. & Transp. Co., 50 N. Y. 661; Airey v. Merrill, 2 Curt. 8, Fed. Cas. No. 115; Kansas City, M. & B. R. Co. v. Holland, 68 Miss. 351, 8 South. 516; Black v. Goodrich Transp. Co., 55 Wis. 319, 13 N. W. 244, 42 Am. Rep. 713; Little Rock, M. R. & T. R. Co. v. Talbot, 39 Ark. 523. A bill of lading pro- vided that "no carrier shall be liable for loss or damage not accruing on its portion of the route, nor after said property is ready for delivery to the consignee." Held that, the stipulation being intended to qualify or limit the common-law liability and therefore to be strictly construed against the car- rier and in favor of the shipper, the term "carrier" should be taken as re- ferring, not merely to the transportative capacity of the company, but to the contracting entity in its dual capacity of common carrier and warehouse- man. Central of Georgia Ry. Co. v. Merrill & Co., 153 Ala. 277, 45 South. 628. Clauses in a bill of lading, exempting the carrier from liability for § 127) LIMITING LIABILITY — CONSTRUCTION OF LIMITATION 385 bility for loss by fire. 80 An exemption from liability for loss through any particular cause does not include losses of that char- acter due to the carrier's negligence. 81 For this rule of construction as to such contracts, two reasons are usually given: An ambiguity in a written contract is ordina- rily resolved against the person who made it possible ; that is, the one who drew the contract and determined in what language it should be couched. The contract limiting liability is usually, as has been seen, embodied in the bill of lading drawn by, and pri- delay in transportation arising from specified causes, did not relieve it, when delay occurred, from the obligation which it assumed to re-ice a re- frigerator car from point of shipment to destination. Geraty v. Atlantic Coast Line R. Co., 81 S. C. 367, 62 S. B. 444. A clause in a bill of lading, providing that no carrier or party in possession of all or any of the property ' shall be liable for any loss thereof or damage thereto by fire, was applicable only in case the carrier at the time of the fire which destroyed the goods was "in possession" thereof. Bolles v. Lehigh Valley R. Co., 159 Fed. 694, 86 C. C. A. 562. Deviation by a carrier from the route described in the contract of shipment makes him liable as an insurer of the goods shipped, though the contract of shipment exempts him from liability under the circumstances under which the goods were lost or damaged. McKahan v. American Ex- press Co., 209 Mass. 270, 95 N. E. 785, 35 L. R. A. (N. S.) 1046, Ann. Cas. 1912B, 612. so Menzell v. Chicago & N. W. Ry. Co., 1 Dillon, 531, Fed. Cas. No. 9,429. See, also, Hawkins v. Great Western R. Co., 17 Mich. 57, 97 Am. Dec. 179. «i Insurance Co. of North America v. Lake Erie & W. R. Co., 152 Ind. 333, 53 N. E. 382; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Ashmore v. Pennsylvania Steam Towing & Transp. Co, 28 N. J. Law, 180; MYNARD v. SYRACUSE, B. & N. Y. R. GO.,. 71 N. Y 180, 27 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 213. An exemp- tion from liability for delay does not cover a negligent delay. McKay v. New York Cent. & H. R. R. Co., 50 Hun, 563, 3 N. Y. Supp. 708. General words in a contract of carriage are not sufficient to release a carrier from negligence, but, if such a result is intended, it must be expressly provided for; and hence, where a bill of lading in a shipment of glass contained a condition that defendant would not be liable for damages to glass by break- age or for any cause, if it should be necessary or was usual to carry such property upon open cars, and the words "Loaded and secured by shipper, released," were written upon the face of it, the defendant's liability for neg- ligence remained unaffected. Brewster v. New York Cent. & H. R. R. Co., 145 App. Div. 51, 129 N. Y. Supp. 368. Where a connecting carrier permit- ted flour to remain in its warehouse for 49 days before' forwarding the same because of a shortage of cars, without notifying the shipper, knowing that the detention would be unusual, thereby preventing the shipper from protect- ing itself by insurance, and the flour was totally or partially destroyed by the burning of the warehouse, the carrier was chargeable with such negli- gence as made it responsible for the loss of the flour, notwithstanding a pro- vision in the bill of lading that no carrier should be liable for the loss of the goous or damage thereto by fire. Erie R. Co. v. Star & Crescent Mill. Co., 162 Fed. 879, 89 C. C. A. 569. Dob.Ballm. — 25 386 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 marily in the interest of, the carrier. 82 A second reason is found in the fact that, when the law fixes the measure of the responsibility of one engaged in a public employment, the courts are inclined, if not to regard with disfavor, at least to scrutinize with great nicety and no frjendly eye, attempts by the one engaged in such public employment to lessen this responsibility by contract. 88 When Contract Inures to Benefit of Connecting Lines As will be seen hereafter, a common carrier may, by special con- tract in particular instances, bind himself for transportation over connecting lines to points beyond his own line; and in such a case, he is liable as a carrier for the whole route, even though the loss of, or injury to, the goods occurs on the line of one of the connecting carriers. 84 In the absence of a contract thus extending his liability, the responsibility of the initial carrier is limited to his own line, and ceases entirely when the goods are delivered to the connecting carrier. 85 When the initial carrier has by his contract undertaken to trans- port the goods through to their destination, beyond the end of his line, then the stipulations in the special contract between the ship- per and the first carrier inure to the benefit of the connecting car- rier. 88 This is upon the theory that since the compensation is fixed 82 See Amory Mfg. Co. v. Gulf, O. & S. F. Ry. Co., 89 Tex. 419, 37 S. W. 856, 59 Am. St. Rep. 65: "To no class of contracts has this rule been ap- plied with more stringency than to those in which common carriers seek to limit their liability as it exists at common law." 8 3 Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419 ; Gwyn Harper Mfg. Co. v. Carolina Cent R. Co., 128 N. C. 280, 38 S. E. 894, 83 Am. St. Rep. 675; Alabama G. S. R. Co. v. Thomas, 89 Ala. 294, 7 South. 762, 18 Am. St. Rep. 119; MYNARD v. SYRACUSE, B. & N. Y. R. CO., 71 N. Y. 180, 27 Am. Rep. 28, Dobie Cas. Bailments and Car- riers, 213. s* Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Hill Mfg. Co. v. Boston & L. R. Corp., 104 Mass. 122, 6 Am. Rep. 202; Bennett v Steam- boat Co., 6 C. B. (Eng.) 775; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. (TJ. S.) 123, 22 L. Ed. 827. This subject is discussed later at some length. See post, § 145. as Miller Grain & Elevator Co. v. Union Pac. Ry. Co., 138 Mo. 658, 40 S. W. 894 ; Fremont E. & M. V. R. Co. v. Waters, 50 Neb. 592, 70 N. W. 225; Post v. Southern Ry. Co., 103 Tenn. 184, 52 S. W. 301, 55 L. R. A. 481; Har- ris v. Grand Trunk Ry. Co., 15 R. I. 371, 5 Atl. 305; Seasongood v. Tennessee & O. R. Transp. Co., 54 S. W'. 193, 21 Ky. Law Rep. 1142, 49 L. R. A. 270. See post, § 145. so Maghee v. Camden & A. R. Transp. Co., 45 N. Y. 514, 6 Am. Rep. 124; Bird v. Southern R. Co., 99 Tenn. 719, 42 S. H. 451, 63 Am. St. Rep. 856; Mears v. New York, N. H. & H. R Co., 75 Conn. 171, 52 Atl. 610, 56 L. E. A. 884, 96 Am. St. Rep. 192; Kiff v. Atchison, T. & S. F. R. Co., 32 Kan. § 127) LIMITING LIABILITY — OONSTBUOTION OF LIMITATION 387 with reference to the liability assumed, and since the first carrier is liable for the entire transportation, such carrier has an interest in making the exception commensurate with the scope and duration of the contract, and the connecting lines acting under its employ- ment are entitled as agents of the initial carrier to the benefits of the contract. 87 The contract, since it is one providing for through shipment, covers the entire transportation. Hence the diminution of liability is equally effective all through the transit and protects all the carriers, both initial and connecting, engaged in such transit. When, however, there is no contract for through transportation, since the liability of the initial carrier is limited to its own line, any contract it makes with the shipper prima facie is made for its own protection only, and the security afforded to the carrier under the contract would cease when the carrier's responsibility ceases, namely, when the- goods are delivered to the connecting carrier. 88 The initial carrier, having no interest in the subsequent transpor- tation, is not supposed to have made a contract operative in a transit as to which it receives no benefit and incurs no liability. 88 The 263, 4 Pac. 401 ; Central Kailroad & Banking Co. v. Bridger, 94 Ga. 471, 20 S. B. 349; Pittsburg, C, C. & St. L. R. Co. v. Viers, 113 Ky. 526, 68 S. W. 469, 24 Ky. Law Rep. 356; White v. Weir, 33 App. Div. 145, 53 N. Y. Supp. 465. See, also, Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Bird v. Southern R. Co., 99 Tenn. 719, 42 S. W. 451, 63 Am. St. Rep. 856; Kansas City, Ft, S. & M. Ry. Co. v. Sharp, 64 Ark. 115, 40 S. W. 781. The cases are far from clear on this subject, and many conflicting opinions are found. 87 Evansville & C. R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. Ed. 724; Manhattan Oil Co. v. Camden & A. R. & Transp. Co., 54 N. Y. 197; Whitworth v. Erie Ry. Co., 87 N. Y. 413; Halliday v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 159, 41 Am. Rep. 309 ; Levy v. Southern Exp. Co., 4 S. C. 234. Whenever the carrier is bound, by contract or by law, to carry to destina- tion, all carriers who engage in the transportation for any portion of the route are entitled to all the protection which the first carrier has secured by his contract with the shipper. Whitworth v. Erie Ry. Co., supra; Kiff v. Atchison, T. & S. F. R. Co., 32 Kan. 263, 4 Pac. 401. See cases cited in pre- ceding note. ss Babcock y. Lake Shore & M. S. Ry. Co., 49 N. Y. 491; Merchants' Des- patch Transp. Co. v. Bolles, 80 111. 473; Bancroft v. Merchants' Despatch Transp. Co., 47 Iowa, 262, 29 Am. Rep. 482; Adams Exp. Co. v. Harris, 120 Ind. 73, 21 N. E. 340, 7 L. R. A. 214, 16 Am. St. Rep. 315; Martin v. American Exp. Co., 19 Wis. 336; Camden & A. R. Co. v. Forsyth, 61 Pa. 81; -iEtna Ins. Co. v. Wheeler, 49 N. Y. 616; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 523, 7 S. E. 916, 2 L. R. A. 102. See, also, Taylor v. Little Rock, M. R. & T. R. Co., 39 Ark. 148. »» See 1 Hutch. Carr. § 471: "The connecting carrier, in such case, is not only a stranger to the contract, but to its consideration. There can be no presumption that there has been, on his part, any abatement of his charges 388 LIABILITY UNDER SPECIAL CONTRACT (Ch.ll immunities provided in the contract made by the initial carrier are not extended beyond the transportation imposed by- this contract on such initial carrier who made it. The connecting carriers, in such a case, tarry not on behalf of the first carrier, but on behalf of the owner, and these must in turn protect themselves by con- tracts which they themselves make with such owner or his au- thorized agent. These contracts, for transporting the goods over the lines beyond that of the initial carrier, however, are frequently made by the initial carrier, acting on behalf of the shipper, with the connecting carrier. In such cases it is generally held that the initial carrier has the authority to make with such connecting carriers a contract similar in terms to that made by the shipper with the first carrier, and providing for the same limitations as to the liability of such connecting carrier. 90 Or such contract might be binding on the shipper, even though differing from the contract with the original carrier, when the contract in question with the connecting carrier is the one usually made by the connecting carrier in like cases and the shipper has knowledge of this fact. 81 SAME— BURDEN OF PROOF 128. When the carrier seeks to escape liability on the ground that the loss of or injury to the goods was due to causes as to which he is exempt under his contract, the burden of proof rests upon the carrier to bring such loss or injury within his contractual exemption. We have already seen that at common law the shipper makes out a prima facie case against the carrier by showing a delivery of the goods to, and their acceptance by, the carrier, and the car- rier's failure to deliver the goods or his delivery of them in a damaged condition. 92 When the carrier's defense is that the loss or injury falls within the exemption or limitation contained in the contract with the shipper, the law properly imposes upon the ear- as a consideration for exemption from liability on the part of the owner of the goods ; and, there being no express contract with him, the law will not imply one for his benefit." »o Lamb v. Camden & A. R. & Transp. Co., 46 N. Y. 271, 7 Am. Rep. 327. »i As to the authority of a carrier to bind the shipper by a contract with a connecting carrier limiting the liability of the latter, see, in favor of such, authority, The St. Hubert, 107 Fed. 727, 46 C. C. A. 603; Rawson v. Holland, 59 N. Y. 611, 17 Am. Rep. 394 ; Levy v. Southern Exp. Co, 4 S. C 234. »a Ante, § 118. § 128) LIMITING LIABILITY — BURDEN OF PROOF 389 rier the duty of affirmatively proving this. 98 There is certainly no ground, in the - absence of such proof on the part of the carrier, for any presumption that the loss or injury was due to a cause which the contract excepts. If, for example, the contract released the car- rier from responsibility for losses "due to fire not caused by carrier's negligence," the shipper need not show that the loss was due to some cause other than fire, but the carrier must prove that the loss was the result of the specific exception — fire. 94 Since the means of knowledge as to the causes of loss or injury are peculiarly the carrier's, this rule imposes no undue burden on the carrier and is consistent with both justice and convenience. Negligence of Carrier As we shall soon see, 9 * the carrier is not permitted to absolve himself from liability for his negligence. When, therefore, not only a peril excepted by contract, but also the negligence of the carrier, is involved in the loss or injury, the question as to the burden of proof is more complicated. In such cases, the holdings of the courts are utterly at variance with one another. According to what is perhaps the majority view, the carrier is prima facie relieved of liability when he proves that the loss or injury was due to a cause exempted by his contract, and the bur- den of showing the negligence of the carrier (thus fixing liability on him in spite of the contractual exemption) rests on the shipper. 98 »s Southern Exp. CO. t. Newby, 36 Ga. 635, 91 Am. Dec. 783; Georgia South- ern & P. E. Co. v. Greer, 2 Ga. App. 516, 58 S. E. 782; Carter & Co. v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Browning v. Goodrich Transp. Co., 78 Wis. 391, 47 N. W. 428, 10 L. R. A. 415, 23 Am. St. Rep. 414; The Niagara v. Cordes, 21^ How. 7, 16 L. Ed. 41; Johnson v. Alabama & V. Ry. Co., 69 Miss. 191, 11 South. 104, 30 Am. St. Rep. 534 ; Schaller v. Chicago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042; U. S. Exp. Co. v. Bachmann, 28 Ohio St. 144; Bonfiglio v. Lake Shore & M. S. Ry. Co., 125 Mich. 476, 84 N. W. 722; Hall v. Cheney, 36 N. H. 26; Mitchell v. Carolina Cent. R. Co., 124 N. C, 236, 32 S. E. 671, 44 L. R. A. 515. Of course the carrier, relying on the contract as a defense, must prove this contract, with the elements of contractual validity. Deierling v. Wabash R. Co., 163 Mo. App. 292, 146 S. W. 814; Adams Express Co. v. Adams, 29 App. D. C. 250; Illinois Match Co. v. Chicago, R. I. & P. R. Co., 250 111. 396, 95 N. E. 492. »« Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314; Little Rock, M. R. & T. Ry. Co. v. Talbot, 39 Ark. 523. »» Post, § 130. * »« The conflict here is the same, whether the particular exemption be one implied by law (e. g., act of God) or whether it be one created by contract (e. g„ fire). The considerations set forth and cases cited in discussing this question as to the exceptions implied by law are also applicable here. See ante, p. 349, notes 60, 61. See, also. Insurance Co. of North America v. Lake & W. R. Co., 152 Ind. 333, 53 N. E. 382; Smith v. American Exp. Co., 108 Mich. 572, 66 N. W. 479; Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; The Lennox (D. C.) 90 Fed. 308; Buck v. Pennsylvania R. Co., 150 Pa. 170, 390 LIABILITY UNDER SPECIAL CONTRACT (Ctl.ll The basis of this holding seems to be that the law presumes that one has lived up to his duty rather than that there has been a fail- ure in this respect. According, too, to some of the courts, the con- ditions of modern transportation do not require any stricter rule as to the carriers. A great many courts, however, hold that the carrier must go fur- ther than showing merely that the loss or injury was due to a cause excepted by his contract and that he must also prove that such loss or injury was in no way due to his negligence. 97 This rule has, to commend it, the strong consideration of convenience, since the carrier's means of showing the absence of negligence are at hand, while the shipper, having no control over the goods or first-hand knowledge of the methods and details of transportation, has great difficulty in proving affirmatively the negligence of the carrier. 08 Very much the same considerations apply here as in the case (al- ready discussed) 99 of the burden of proof as to the carrier's neg- ligence when loss or injury is due to one of the perils excepted from the carrier's insuring liability by the common law, such as, for example, the act of God. 24 Atl. 678, 30 Am. St. Rep. 800; Sager v. Portsmouth S. & P. & E. R. Co., 31 Me. 228, 50 Am. Dec. 659; St Louis, I. M. & S. Ry. Co. v. Bone, 52 Ark. 26, 11 S. W. 958; Lancaster Mills v. Merchants' Cotton-Press Co., 89 Tenn. 1, 14 S. W. 317, 24 Am. St. Rep. 586; Kelham v. The Kensington, 24 La. Ann. 100; Standard, etc., Co. v. White Line Cent. Transit Co., 122 Mo. 258, 26 S. W. 704. " Georgia Southern & F. R. Co. v. Greer, 2 Ga. App. 516, 58 S. E. 782; Carter & Co. v. Southern R. Co., 3 Ga. App. 34, 59 S. E. 209; Baltimore & 0. R. Co. v. Oriental Oil Co., 51 Tex. Civ. App. 336, 111 S. W. 979; Hinton v. Eastern Ry. Co., 72 Minn. 339, 75 N. W. 373; Crawford v. Southern Ry. Co., 56 S. C. 136, 34 S. E. 80; Johnson v. Alabama & V. Ry. Co., 69 Miss. 191, 11 South. 104, 30 Am. St. Rep. 534; Union Exp. Co. v. Graham, 26 Ohio St. 595 ; Brown v. Adams Exp. Co., 15 W|. Va. 812; Hinkle v. Southern By. Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685. See cases cited, p. 349, note, 61. 8 Pittsburgh, C, C. & St. L. Ry. Co. v. Racer, 5 Ind. App. 209, 31 N. B. 853; Mitchell v. Carolina Cent R. Co., 124 N. C. 236, 32 S. E. 671, 44 L. R. A. 515; Johnstone v. Richmond & D. R. Co., 39 S. C. 55, 17 S. E. 512. See' cases cited in preceding note. »» See ante, § 118. § 129) LIMITING LIABILITY SAVE EOK NEGLIGENCE 391 VALIDITY OF SPECIFIC STIPULATIONS— STIPULA- TIONS RELIEVING CARRIER OF LIABIL- ITY SAVE FOR NEGLIGENCE 129. The carrier may validly stipulate for entire relief from lia- bility for all loss or damage that is not due to the negli- gence of the carrier or that of his agents or servants. It is clear, from what has been said, that the carrier may by contract limit the insuring liability imposed on him by the com- mon law. • It is equally clear that the carrier cannot, even by ex- press contract, relieve himself of all liability for loss or damage, regardless of the means by which it was caused. It is far from clear, however, just what these limitations are on the power of the carrier thus to diminish his responsibility. How far a sound public policy, considering the public nature of the carrier's employ- ment, may permit the carrier to go in this respect, is a question which has caused the courts no end of trouble, and has given rise to many and conflicting doctrines. There is substantial agreement, however, that. there is no ob- jection, on the score of public policy, to contracts which make the carrier liable for his negligence, or that of his agents or servants, but which afford the carrier complete exemption from liability for loss or damage due to any other causes. 1 In other words, the i South & N. A. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Eep. 578; Id., 56 Ala. 368 ; East Tennessee, V. & 6. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; Little Rock, M. R. & T. Ry. Co. v. Talbot, 47 Ark. 97, 14 S. W. 471; Taylor v. Little Rock, M. R. & T. R. Co., 39 Ark. 148; Overland M. & B. Co. v. Carroll, 7 Colo. 43, 1 Pac. 682; Merchants' Dispatch & Transp. Co. v. Cornforth, 3 Colo. 280, 25 Am. Rep. 757; Union Pac. R. Co. v. Rainey, 19 Colo. 225, 34 Pac. 986; Camp v. Hartford & N. Y. Steamboat Co., 43 Conn. 333 ; Welch v. Boston & A. R. Co., 41 Conn. 333 ; Central R. R. v. Bryant, 73 Ga. 722, 726; Berry v. Cooper, 28 Ga. 543 ; Flinn v. Philadelphia, W. & B. R. Co., 1 Houst. (Del.) 469, 502; Boscowitz v. Adams Exp. Co., 93 111. 523, 34 Am. Rep. 191; Erie Ry. Co. v. Wilcox, 84 111. 239, 25 Am. Rep. 451; Rosenfeld v. . Peoria, D. & E. Ry. Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. 500 ; Bartlett v. Pittsburgh, C. & St. L. Ry. Co., 94 Ind. 281 ; Ohio & M. Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Sprague v. Missouri Pac. Ry. Co., 34 Kan. 347, 8 Pac. 465; St. Louis, K. C. & N. Ry. Co. v. Piper, 13 Kan. 505; Louisville & N. R. Co. v. Brownlee, 14 Bush (Ky.) 590 ; Louisville, C. & L. R. Co v. Hed- ger, 9 Bush (Ky.) 645, 15 Am. Rep. 740; New Orleans Mut. Ins. Co. v. New Orleans, J. & G. N. R. Co., 20 La. Ann. 302; Roberts v. Riley, 15 La. Ann. 103, 77 Am. Dec. 183; Little v. Boston & M. R. R., 66 Me. 239; Willis v. Grand Trunk Ry. Co., 62 Me. 488; McCoy v. Erie & W. Transp. Co., 42 Md. 498; Brehme v. Dinsmore, 25 Md. 328; Hoadley v. Northern Transportation Co., 115 Mass. 304, 15 Am. Rep. 106; Pemberton Co. v. New York Cent. R. Co., 104 392 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 carrier, can by contract validly stipulate that his liability is to be measured, not in terms of insurance, but in terms of negligence. For the insuring liability which the law affixes to him as an ex- traordinary bailee, he can contractually substitute the liability Mass. 144, 151; School District in Medfleld v. Boston, H. & B. R. Co, 102 Mass. 552, 3 Am. Rep. 502 ; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Squire v. New York Cent. R. Co, 98 Mass. 239, 93 Am. Dec. 162; Feige v. Michigan Cent. R. Co, 62 Mich. 1, 28 N. W. 685; Michigan Cent R. Co. v. Ward, 2 Mich. 538, overruled in Michigan Cent R. Co. v. Hale, 6 Mich. 243; Boehl v. Chicago, M. & St. P. Ry. Co, 44 Minn. 191, 46 N. W, 333; Hull v. Chicago, St. P, M. & O. Ry. Co, 41 Minn. 510, 43 N. W. 391, 5 L. R. A. 587, 16 Am. St. Rep. 722; Ortt v. Minneapolis & St. L. Ry. Co, 36 Minn. 396, 31 N. W. 519 ; Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 1003, 1011, 45 Am. Rep. 428 ; Chicago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017; New Orleans, St. L. & C. R. Co. v. Faler, 58 Miss. 911; McFadden v. Missouri Pac. Ry. Co, 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Ball v. Wabasha, St. L. & P. Ry. Co, 83 Mo. 574; Craycroft v. Atchison, T. & S. F. Ry. Co, 18 Mo. App. 487; Atchison & N. R. Co. v. Washburn, 5 Neb. 117, 121; Chicago, R. I. & P. R. Co. v. Witty, 32 Neb. 275, 49 N. W. 183, 29 Am. St. Rep. 436; Rand v. Merchants' Dispatch Transp. Co, 59 N. H. 363; Moses v. Boston & M. R. R, 24 N. H. 71, 55 Am. Dec. 222; Id, 32 N. H. 523, 64 Am. Dec. 381; Ashmore v. Pennsylvania Steam Towing & Transp. Co, 28 N. J. Law, 180 ; Phifer v. Carolina Cent. R. Co, 89 N. C. 311, 45 Am. Rep. 687; Smith v. North Carolina R. Co, 64 N. C. 235 ; Gaines v. Union Transp. & Ins. Co, 28 Ohio St. 418; U. S. Exp. Co. v. Backman, 28 Ohio St 144; Union Exp. Co. v. Graham, 26 Ohio St. 595; Armstrong v. United States Exp. Co, 159 Pa. 640, 28 Atl. 448 ; Merchants' D. T. Co. v. Bloch, 86 Term. 392, 397, 6 S. W. 881, 6 Am. St. Rep. 847 ; Coward v. East Tennessee V. & G. R. Co, 16 Lea (Tenn.) 225, 57 Am. Rep. 227; Gulf, C. & S. F. Ry. Co. v. Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494 (under statute) ; Gulf, C. & S. F. Ky. Co. v. McGown, 65 Tex. 640; Houston & T. C. R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808 ; Mann v. Birchard, 40 Vt 326, 94 Am. Dec. 398; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349; Virginia & T. R. Co. v. Sayers, 26 Grat. (Va.) 328; Wilson v. Chesapeake & O. R. Co, 21 Grat. (Va.) 654, 671; Brown v. Adams Exp. Co, 15 W. Va. 812; Maslin v. Baltimore & O. R. Co, 14 W. Va, 180, 35 Am. Rep. 748; Abrams v. Milwaukee, L. S. & W. Ry. Co, 87 Wis. 485, 58 N. W. 780, 41 Am. St. Rep. 55. And see Black v. Goodrich Transp. Co, 55 Wis. 319, 13 N. W. 244, 42 Am. Rep. 713 ; Thomas v. Wabash, St. L. & P. R. Co. (C. C.) 63 Fed. 200 ; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Michigan C. R. Co. v. Mineral Springs Mfg. Co, 16 WaU. 318, 328, 21 L. Ed. 297; Ogdensburg & L. O. R. Co. v. Pratt 22 Wall. 123, 22 L. Ed. 827; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465; Liverpool & G. W,. Steam Co. v. Phenix Ins. Co, 129 U. S. 397, 9 Sup. Ct 469, 32 Li. Ed. 788; Thomas v. Lancaster Mills, 71 Fed. 481, 19 C. C. A. 88. See, also, the following recent cases: Hlx v. Eastern S. S. Co, 107 Me. 357, 78 Atl. 379; George N. Pierce Co. v. Wells Fargo & Co, 189 Fed. 561, 110 C. C. A. 645; Mobile & O. R. Co. v. Brownsville Livery & Live Stock Co, 123 Tenn. 298, 130 S. W. 788 ; Penn. Clothing Co. v. United States Exp. Co, 48 Pa. Super. Ct. 520 ; Russell v. Erie R. Co, 70 N. J. Law, 808, 59 Atl. 150, 67 L. R. A. 433, 1 Ann. Cas. 672 ; Louisville, etc.. Ry. Co. v. Landers, 135 Ala. 504, 33 South. 482. § 130) LIMITING LIABILITY FOR NEGLIGENCE 393 attaching to the ordinary bailee for hire. 2 He can agree that, in- stead of being responsible at all hazards for loss or injury not due to one of the five excepted causes, he shall be liable only when the loss or injury is attributable to his failure to exercise due care. Though there are many practical objections to it, this rule is firmly established, 3 in the absence Of statute * limiting the right of the carrier thus to restrict his liability by contract. SAME— STIPULATIONS SEEKING TO RELIEVE THE CAR- RIER FROM LIABILITY FOR NEGLIGENCE 130. The carrier cannot by contract relieve himself from liability for loss or injury due to his negligence, or that of his agents or servants. The American courts have with substantial unanimity consistent- ly refused to permit the carrier to stipulate against the consequenc- es of his negligence. 5 The public nature of the employment in *As we have seen, however (ante, pp. 383-384), the common carrier con- tinues a common carrier, however, even though by-Jiis contract he reduces his liability to that of an ordinary bailee. » This is apparent even from a casual inspection of the cases cited In note 1. * For discussion of statutory regulation of contracts limiting the carrier's liability, see post, § 135. o Alabama G. S. R. Co. v Thomas, 89 Ala. 204, 7 South. 762, 18 Am. St Rep. 119; Pacific Exp. Co. v. Wallace, 60 Ark. 100, 29 S. W. 32; Insurance Co. of North America v. Lake Erie & W. R. Co., 152 Ind. 333, 53 N. E. 382 ; Louis- ville & N. R. Co. v. Plummer, 35 S. W. 1113, 18 Ky. Law Rep. 228; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St Rep. 550; Cox v. Central Vermont R. Co., 170 Mass. 129, 49 N. E. 97; Ortt v Minneapolis & St. L. Ry. Co., 36 Minn. 396, 31 N. W. 519; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Pittsburgh, C. C. & St. L. Ry. Co. v. Sheppard, 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 732 ; Willock v. Pennsylvania R. Co., 166 Pa. 184, 30 Atl. 948, 27 L. R. A. 228, 45 Am. St. Rep. 674; Norfolk & W. R. Co. v. Harman, 91 Va. 601, 22 S. E. 490, 44 L. R. A. 2S9, 50 Am. St. Rep. 855 ; Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788; Thomas v. Wabash, St L. & P. R Co. (C. C.) 63 Fed. 200. See, also, the following recent cases: P. Garvan v. New York Cent. & H. R. R. Co., 210 Mass. 275, 96 N. E. 717; Central of Georgia R. Co. v. City Mills Co., 128 Ga. 841, 58 S. E. 197; St Louis & S. P. R Co. v. Phillips, 17 Okl. 264, 87 Pac. 470 ; Jolliffe v Northern Pac. R. Co., 52 Wash. 433, 100 Pac. 977; Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St Rep. 524; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960; St. Louis Southwestern R. Co. v. Wal- lace, 90 Ark. 138, 118 S. W. 412, 22 L. R. A. (N. S.) 379; Checkley v. Illinois Cent. Ry. Co., 257 111. 491, 100 N. E. 942, 44 L. R. A. (N. S.) 1127, Ann Cas. 1914A, 1202. 394 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 which the carrier is engaged, the tremendous part that he plays in the commercial and economic life of a country, the fact that the carrier and shipper do not stand on a footing of equality as to con- tracts between them, would require that such contracts, Which un- questionably tend to a deterioration in the service of the carrier, should be prohibited by sound public policy. These considerations completely outweigh the sanctity which would otherwise attach to the freedom of contract between persons who are under no dis- ability. In New York C. R. Co. v. Lockwood, 8 a leading American case, it was said, as to contracts attempting to relieve the carrier from the consequences of his negligence : "The proposition to allow a pub- lic carrier to abandon altogether his obligations to the public, and to stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employ- ment, would never have been entertained by the sages of the law. * * * And then the inequality of the parties, the compulsion under which the customer is placed, and the obligations of the car- rier to the public, operate with full force to divest the transaction of validity." Anomalous Doctrines of a Few States While the sound doctrine just stated very generally prevails, this doctrine has been qualified by the peculiar holdings of a few states. Thus, in Illinois, it has been held that the carrier may validly contract for exemption from liability for ordinary negligence, but not for gross negligence. 7 Not only is any attempt to restrict the salutary doctrine, as above outlined, regrettable, but any attempt to distinguish here between grades of negligence is particularly ob- jectionable. The so-called Illinois doctrine has, accordingly, met with scant favor at the hands of the courts of other states. 8 The New York courts recognized a distinction between the car- rier's own negligence and that of his servants or agents. The car- rier was then permitted to contract against the negligence of his e 17 Wall. (U. S.) 357, 21 L. Ed. 627. 1 1llinois Cent R. Co. v. Morrison, 19 111. 136; Wabash Ry. Co. v. Brown, 152 111. 484, 39 N. E. 274; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 111. 9, 61 N. E. 1095, 88 Am. St. Rep. 68. Language to the same effect is found also in Cooper v. Raleigh & G. R. Co., 110 Ga. 659, 36 S. E. 240; Gait v. Adams Exp. Co., MacArthur & M. (D. C.) 124, 48 Am. Rep. 742 ; Rhodes v. Louisville & N. R. Co., 9 Bush (Ky.) 688. s See, particularly, criticism of Christian, J., in Virginia & T. R. Co. v. Say- ers, 26 Grat (Va.) 328. See, also, Alabama G. S. R. Co. v. Thomas, 83 Ala. 343, 3 South. 802; New York C. R, Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627 ; Sager v. Portsmouth, S. & P. & E. R. Co, 31 Me. 228, 50 Am. Dec. 659; Wyld v. Pickford, 8 Mees. & W. (Eng.) 442. § 131) LIMITING DAMAGES IN THE ABSENCE OF NEGLIGENCE 395 servants, but this right was denied as to his own negligence. 9 This distinction is perhaps even more unfortunate, in that it at- tempts to set at naught a fundamental principle of the law of mas- ter and servant, that the master, receiving the benefits of the serv- ice, is responsible for the acts of the servant within the scope of his authority. This anomalous New York doctrine, therefore, has gained little currency elsewhere. 10 SAME— STIPULATIONS LIMITING LIABILITY AS TO AMOUNT RECOVERABLE— IN THE ABSENCE OF THE CARRIER'S NEGLIGENCE 131. Stipulations limiting the recovery for loss or damage to a specified amount are clearly valid, in the absence of neg- ligence on the part of the carrier or his servants. It has already been shown " that the carrier may by contract re- lieve himself from any liability whatsoever not due to negligence. If, then, the carrier in such cases may validly stipulate for a total exemption from responsibility, clearly he can in like manner se- cure a partial exemption. The greater includes the less, and the carrier's contracts limiting his liability to stated amounts (how- ever short these may fall of the actual loss or injury) are valid as to losses not caused by negligence. 12 Such contracts, however, • The argument for this rule is perhaps best stated by Woodruff, J., in French v. Buffalo, N. Y. & E. R Co., *43 N. Y. 108. See, also, Bissell v. New York Cent R. Co., 25 N. Y. 442, 82 Am. Dee. 369; Perkins v. New York Cent. K. Co., 24 N. Y. 196, 82 Am. Dec. 281; Wells v. New York Cent. R. Co., 24 N. Y. 181; Smith v. New York Cent R. Co., 24 N. Y. 222. Later New York cases seem to permit the carrier generally to contract against even his own negligence. Cragin v. New York Cent. R. Co., 51 N. Y.'61, 10 Am. Rep. 559- Zimmer v. New York Cent & H. R. R. Co., 137 N. Y. 460, 33 N. E. 642. 10 "A carrier who stipulates not to be bound to the exercise of care and diligence seeks to put 'off the essential duties of his employment. Nor can those duties be waived in respect to his agents or servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants. The law demands of the carrier carefulness and diligence in per- forming the service, not merely an abstract carefulness and diligence in pro- prietors and stockholders, who take no active part in the business. To admit such a distinction in the law of common carriers/as the business is now car- ried on, would be subversive of the very object of the law." Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct 469, 32 L. Ed. 788. See, also, Gulf, C. & S. P. Ry. Co. v. McGown, 65 Tex. 640. ii Ante, § 129. 12 Brehme v. Dinsmore, 25 Md. 328; Chesapeake & O. R. Co. v. Beasley, Couch & Co., 104 Va. 788, 52 S. E. 566, 3 L. R. A. (N. S.) 183; Boorman v. 396 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 are somewhat rare, as it is usual for the carrier, in stipulating for exemptions in the absence of negligence, to stipulate, as he validly may, for the total exemption already discussed. SAME— SAME— CARRIER NEGLIGENT— AMOUNT FIXED WITHOUT REGARD TO THE VALUE OF THE GOODS 132. Limitations of the carrier's liability to a fixed amount, where the loss or injury is due to the carrier's negligence, are invalid when such amount is fixed without regard to the value of the goods. By the great weight of authority, a stipulation limiting recovery to an arbitrary sum is utterly void, when loss or injury is traceable to the negligence of the carrier. 18 Since here the amount is fixed capriciously by the carrier, it is in no way based on the value of the goods shipped, and bears no essential relation to the actual or even probable amount of damage sustained by the shipper, owing to the loss of, or injury to, the goods. As such amount is purely arbitrary, the carrier might, by placing it low enough, practically escape the consequences of his negligence, if such contracts were permissible. The courts, then, have very generally viewed such contracts as mere attempts by the carrier to exempt himself, to a greater or less degree, from liability for his negligence. These contracts have been accordingly repudiated under the general rule forbidding the carrier from contracting against his negligence, and, when a loss American Exp. Co., 21 Wis. 152 ; Snider v. Adams Exp. Co., 63 Mo. 376; Louis- ville & N. R. Co. v, Oden, 80 Ala. 38. is Louisville & N. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; ALAIR v. NORTHERN PAC. R. CO., 53 Minn. 160, 54 N. W. 1072, (l#"L. R. A.) 764, 39 Am. St. Rep. 588, Dobie Cas. Bailments and Carriers, 215 ; Gardner v. South- ern R Co., 127 N. C. 293, 37 S. E. 328; Central of Georgia Ry. Co. v. Mur- phey; 113 Ga. 514, 38 S. E. 970,(53 L. R. A. 720;) Woodburn v. Cincinnati, N. O. & T. P. R Co. (C. C.) 40 Fed. 731; Baltimore & O. S. W. Ry. Oo. v. Rags- dale, 14 Ind. App. 406, 42 N. E. 1106; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166, 31 Atl. 478, 46 Am. St Rep. 666; Southern Exp. Co. v. Moon, 39 Miss. 822; Ohio & M. Ry. Co. v. Tabor, 98 Ky. 503, 32 S. W. 168, 36 S. W. 18, 34 L. R. A. 685 ; Galveston, H. & S. A. Ry. Co. v. Ball, 80 Tex. 602, 16 S. W. 441. See, also, Louisville &* N. R. Co. v. Woodford, 152 Ky. 398, 153 S. W. 722; L. & N. Ry. Co. v. Tharpe, 11 Ga. App. 465, 75 S. E. 677. Where there is an arbitrary fixing of value by a carrier, accepting goods for transportation before an inspection and without any regard to their real worth, the assumed valuation may be treated as a mere attempt in advance to limit liability. Central of Georgia Ry. Co. v. Butler Marble & Granite Co., 8 Ga. App. 1, 68 S. E. 776. § 133) AGREED VALUATION OP GOODS 397 or injury occurs attributable to the carrier's negligence, the ship- per may, in spite of the stipulation limiting the carrier's liability to an arbitrary amount, recover the full amount of damage that he has suffered by virtue of such negligent loss or injury. 1 * SAME— SAME— SAME— AGREED VALUATION OF THE GOODS 133. When the amount fixed is honestly accepted by the carrier as a fair and bona fide valuation of the goods for shipment, then, by the weight of authority, even when loss or injury is caused by the carrier's negligence, there can be no re- covery beyond the amount thus fixed. There is much confusion and conflict in the cases as to the car- rier's limiting the amount of his liability for negligent loss or injury by fixing in the contract a specified sum as the value of the goods. It is believed, however, that the rule given in the black letter text is supported by both reason and authority. 15 In order that he may determine what precautions and methods of transpor- tation are proper, and in order that he may graduate his charges according to the risk assumed, the carrier is entitled to know the value of the goods he carries. When, therefore, the stipulation is honestly regarded by the carrier as a real valuation of the goods, and he arranges accordingly, it would seem that every consider- ation of fairness would demand the rule that, however valuable the goods may actually be, the liability of the carrier, even for " See cases cited in preceding note.- is Hart v. Pennsylvania Ry. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Doyle v. Baltimore & O. B. Co. (C. C.) 126 Fed. 841 ; Louisville & N. R. Co. v. Sherrod, 84 Ala. 178, 4 South. 29; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 South. 649; Coupland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. S70, 15 L. R. A. 534; Russell v. Pittsburgh, C, C. & St L. Ry. Co., 157 Ind. 311, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214; Graves v. Lake Shore & M. S. R. Co., 137 Mass. 33, 50 Am. Rep. 282; O'Malley v. Great Northern Ry. Co., 86 Minn. 380, 90 N. W. 974; Ballou v. Earle, 17 R. I. 441, 22 Atl. lil3, 14 L. R. A. 433, 33 Am. St. Rep. 881; Ullman v. Chicago & N. W. R Co., 112 Wis. 150, 88 N. W. 41, 88 Am. St. Rep. 949; ADAMS EXP. CO. v. CRONINGER, 226 U. S. 491, 33 Sup. Ct 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, Dobie Cas. Bailments and Carriers, 228; American Silk Dyeing & Finishing Co. v. Fuller's Exp. Co., 82 N. J. Law, 654, 82 Atl. 894. Some cases, however, refuse to permit such valuation and grant a full recovery of damages suffered by the carrier's negligence. Kansas City, St. J. & C. B. R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821, 46 Am. Rep. 104; Hughes v. Pennsylvania R. Co., 202 Pa. 222, 51 Atl. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713; Cincinnati, N, O. & T. P. Ry. Co. v. Graves, 52 S. W. 961, 21 Ky. Law Rep. 684. 398 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 negligent loss or injury, should be limited to the stipulated amount. 16 Such a stipulation is not a limitation of the carrier's liability for negligence, but is merely an attempt, on the part of the carrier, to arrive at the value of the goods, so that he may know for what amount he may be held responsible in case of loss due to his neg- ligence. Information, not limitation, is sought by the carrier when such valuations are real and what the term primarily signifies. The rule, too, is based upon, and limited by, an honest attempt to arrive at the value of the goods ; and in the amount fixed as the value the carrier must genuinely believe. 17 If, in such a case, the shipper is allowed to recover a sum beyond a valuation thus fixed by shipper i« A limitation on the value of the goods shipped in consideration of a re- duced rate of carriage is binding in the event of loss, and the shipper cannot recover above the value fixed, where the contract is fairly made. Windmiller v. Northern Pac. Ry. Co., 52 Wash. 613, 101 P. 225. A shipping contract vol- untarily entered into, which fixes an agreed valuation of the property which forms the basis for the freight charges, is an agreement fixing the valuation of the property, and not a contract limiting the liability of the carrier, and under the contract the carrier is only liable as stipulated, and then only to the extent of the valuation fixed. Mering v. Southern Pac. Co., 161 Cal. 297, 119 Pac. 80. Plaintiff shipped a package of furs, worth $2,000 by defendant express company. Plaintiff marked no value on the package and gave none in her communications to the express company; but the box had been previously used, and a $150 valuation was marked thereon, and this amount was stated by the express company in the receipt as the value of the pack- age. Plaintiff accepted the receipt without demur, and after the loss of the package made no claim of mistake in valuation, but claimed the right to re- cover the full value of the furs in spite of the limitation of liability contained in the receipt. Held, that plaintiff's recovery was limited to $150. Taylor v. Weir (C. C.) 162 Fed. 585. A contract limiting a carrier's liability to the value of the shipment given by the shipper for obtaining a concession in rates is not invalid, under Const. Ky. § 196, prohibiting any carrier from con- tracting "for relief against common-law liability." Barnes v. Long Island R. Co., 115 App. Div. 44, 100 N. Y. Supp. 593, reversing judgment (1905) 47 Misc. Rep. 318, 93 N. T. Supp. 616. Where a shipper and carrier fairly and honestly agree as to the value of the property to be shipped, as the basis of the carrier's charges and responsibility, and not for the purpose of limiting the amount for which the carrier shall be liable for losses resulting from its negligence, such agreement is valid, and the values so agreed upon will be the limit of recovery. Cole v. Minneapolis, St. P. & S. S. M. Ry. Co., 117 Minn. 33, 134 N. W. 296. Parties may agree on the value of property to be shipped by express, and limit the carrier's liability to the agreed valuation, where the agreement as to limitation is fairly made, on a good consideration. Adams Exp. Co. v. Byers, 177 Ind. 33, 95 N. E. 513. A shipper who by special contract agrees on a value of the goods in case of loss, and in consid- eration thereof obtains a reduced rate, is estopped from showing that the real value of the goods was greater than that contracted. Faulk v. Columbia, N. & L. R. Co., 82 S. O. 369, 64 S. E. 383. " See post, p. 400. § 133) AGREED VALUATION OP GOODS 399 and carrier, not only would it impose an unfair burden on the car- rier, but it would also permit the shipper to profit by his own wrong. In Hart v. Pennsylvania R. Co., 18 the leading American case, this language is used by the United States Supreme Court : "The lim- itation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. 19 The car- rier is bound to respond in that value for negligence. The compen- sation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value for the purposes of the contract of transportation between the parties to that contract. The carrier must respond for negli- gence, up to that value. It is just and reasonable that such a con- tract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be repugnant to the soundest principles of fair dealing, and of the freedom of contracting, and thus in con- flict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss." In the same case it was held that there is no difference in legal effect between the case of the shipper fixing the value, to which the carrier assents, and the case of the carrier, in the bill of lading, fix- ing the value at a figure which is reasonable for ordinary goods of the class in question, to which value the shipper gives his assent. 20 Of course, if the value were fixed by the carrier, this would in no case be binding on the shipper, unless expressly or impliedly 21 he consents thereto. Accordingly, though some courts dissent from the rule, where the contract between the shipper and carrier is fairly made, agree- is 112 U. S. 331, 5 Sup. Ct 151, 28 L. Ed. 717. i» See Graves v. Lake Shore & M. S. R. Co., 137 Mass. 33, 50 Am. Rep. 282; Squire v. New York Cent. R. Co., 98 Mass. 239, 93 Am. Dec. 162; Rosenfeld v. Peoria, D. & B. Ry. Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. 500; Hop- kins v. Westcott, 6 Blatchf. 64, Fed. Cas. No. 6,692; The Aline (C. C.) 25 Fed. 562; The Hadji (D. C.) 18 Fed. 459. 20 The language of Mitchell, J., in ALAIR v. NORTHERN PAC. R. CO., 53 Minn. 160, 54 N. W. 1072, 19 L. R. A. 764, 39 Am. St. Rep. 588, Dobie Cas. Bailments and Carriers, 215, is almost identical with that used in the Hart Case. 21 As by accepting a bill of lading or express receipt with a clause fixing the value of the goods, in the absence of any fraud, concealment, or unfair dealing. Michalitschke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683, 50 Pac. 847; Graves v. Adams Exp. Co., 176 Mass. 280, 57 N. E. 462. See ante, §125. 400 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 ing on a valuation of the goods to be carried, the carrier entertain- ing a genuine belief that the amount thus fixed is a fair value of the goods, then, even in case of negligence, the contract is binding." Such a contract is upheld as a proper and lawful method of secur- ing a due proportion between the amount for which the carrier may be responsible and the freight he receives. It also serves as a pro- tection to the carrier against exaggerated and 4 fanciful valuations of the goods on the part of the shipper after the loss or injury. When Valuation is Known by Carrier to be Far Below the Real Value of the Goods The courts again differ sharply when the valuation in the contract is known by the carrier to be utterly disproportionate to the real value of the goods. In such case some courts hold that even then the carrier, for loss due to his negligence, is liable only for the amount fixed by the contract. 28 The better view, however, seems to be that the contract valuation is then not a real valuation at all, and is hence invalid, thus permitting the shipper to recover the full amount of damage he has suffered. 24 The first of these holdings 22 See cases cited in note 15. zaDonlon Bros. v. Southern Pac. Co., 151 Cal. 763, 91 Pac. 603, 11 L. R. A. (N. S.) 811, 12 Ann. Cas. 1118 (stipulation held valid limiting value of hors- es to $20 each) ; D'Arcy v. Adams Exp. Co., 162 Mich. 363, 127 N. W. 261 (limitation to $50, though carrier knew that the contents of the package were valuable opals); George N. Pierce Co. v. Wells Fargo & Co., 189 Fed. 561, 110 C. C. A. 645 (automobiles worth $15,000, valued at $50). See, also, Green- wald v. Barrett, 199 N. T. 170, 92 N. E. 218, 35 L. R. A. (N. S.) 971; In re Re- leased Bates, 13 Interst. Com. 550; Bernard v. Adams Exp. Co., 205 Mass. 254, 91 N. E. 325, 28 L. R. A. (N. S.) 292, 18 Ann. Cas. 351. Many cases fail to make the distinction indicated, and treat together stipulations as to tha value of goods, regardless of the carrier's knowledge that such value is far below the real value of the goods. For discriminating comments on this sub- ject, see the brief, but excellent, notes of Prof. Goddard, 9 Mich. I*. Rev. 233, 10 Mich. L. Rev. 317. In this latter note the decision in the case of George N. Pierce Co. v. Wells Fargo & Co., supra, is severely, but Justly, criticised. See, also, American Silver Mfg. Co. v. Wabash R. Co., 174 Mo. App. 184, 156 S. W. 830 (holding that a limitation to ten times the freight paid was valid, though the carrier had notice that the property was worth nearly $5,000). See, also, the recent decisions of the United States Supreme Court as to limitations on interstate shipments under the Carmack amendment to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 386 [TJ. S. Comp. St 1901, p. 3169], as amended by Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [TJ. S. Comp. St. Supp. 1911, p. 1307]): ADAMS EXP. CO. v. CRON- INGER, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, Dobie Cas. Bailments and Carriers, 228 ; Missouri, K. & T. R. Co. v. Harri- man, 227 TJ. S. 657, 33 Sup. Ct 397, 57 L. Ed. 690; Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct 391, 57 L. Ed. 683. 24 A contract limiting a carrier's liability to $5 per hundredweight, or to a maximum of $120, is invalid, where the freight ia worth over $900 and the § 133) AGREED VALUATION OF GOODS 401 permits the carrier to know two values — one, the real value of the goods; the other, a purely fictitious one, that exists only for the purpose of that particular transportation. The more acceptable doc- trine, however, is the second, that recognizes only one method of valuation — that of determining the real value of the goods — and views an attempt by the carrier to fix by contract the value of the goods at a figure far below what is really known to be their value, as an attempt by the carrier to limit, in the guise of a valuation, his liability for his negligent acts. If no limit is placed on the carrier's power to fix the amount of his liability for negligence by so-called agreed valuations, then by fix- ing this valuation low enough the carrier can, to all practical pur- poses, entirely absolve himself from the consequences of his negli- gence. 25 If there is a limit to this objectionable practice, it would be hard to define its precise limits, and still more difficult to apply it practically. When goods of the actual value of $1,000 are shipped at an agreed valuation of $500, there are not a few courts, as has been indicated, that hold the carrier, even though the real value of the goods is known to him, liable only for $500 when the goods are lost through his negligence. Yet some of these courts would refuse to permit the carrier to contract that, for loss due to his negligence, the carrier's liability shall be limited to one-half the value of the goods. Still the same result would always flow from the stipulation as to half liability and an agreed valuation which the carrier, after as- earrier had knowledge thereof. Colorado & S. Ry. Co. v. Manatt, 21 Colo. App. 593, 121 Pac. 1012. A shipper signed a printed receipt and agreed that an express company should not be liable beyond the sum of $50, at which sum the property shipped was valued. The freight paid was $330, and the testi- mony showed that the value of the shipment was $2,000. This was held an in- valid stipulation. MURPHY v. WELLS FARGO & CO. EXPRESS, 99 Minn. 230, 108 N. W. 1070, Dobie Cas. Bailments and Carriers, 218. A carrier hav- ing an opportunity to see and know the nature and value of freight to be car- ' ried cannot by contract relieve itself from liability for full value for loss through its negligence. Galveston, H. & S. A. R. Co. v. Crippen (Tex. Civ. App.) 147 S. W. 361. See, also, Kember v. Southern Exp. Co., 22 La. Ann. 158, 2 Am. Rep. 719; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140 ; Powers Mercantile Co. v. Wells Fargo & Co., 93 Minn. 143, 100 N. W. 735; HANSON v. GREAT NORTHERN R. CO., 18, N. D. 324, 121 N. W. 78, 138 Am. St. Rep. 768, Dobie Cas. Bailments and Carriers, 220; Baughman v. Louisville, E. & St L. R. Co., 14 Ky. Law Rep. 108; U. S. Exp. Co. v. Backman, 28 Ohio St. 144; Overland M. & E. Co. v. Carroll, 7 Colo. 43, 1 Pac. 682; Southern Exp. Co. v. Rothenberg, 87 Miss. 656, 40 South. 65, 112 Am. St. Rep. 466. 26 See dissenting opinion of Shaw, J., in Donlon Bros. v. Southern Pac. Co., 151 Cal. 763, 91 Pac. 603, 11 L. R, A. (N. S.) 811, 12 Ann. Cas. 1118. See, also, 10 Mich. Law Rev. 317. Dob.Bailm.— 26 402 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 certaining the real value, was careful to fix at exactly one-half of such real value. 20 It is therefore suggested, as the better doctrine, that a keen dis- tinction he drawn between honest attempts at valuation, which seek information, and stipulations which, placing a value on the goods far below their known value, in effect seek limitation. 27 When the carrier is negligent, the first should be upheld and the second condemned. The rule, then, which permits no recovery against the carrier for negligence beyond the valuation in the con- tract, should be qualified by requiring that this contract valuation must be honestly believed by the carrier to be the real value of the goods. Knowledge, on the part of the carrier, of the higher valu- ation should indicate to the carrier the measure of his responsibility for negligence, and he should arrange and charge accordingly. Limitation to Fixed Amount Unless Real Value is Stated Stipulations have been generally upheld limiting the carrier's liability for negligence to a specified amount unless the real value of the goodfe, in excess of such amount, is given by the shipper. 28 If, with knowledge of such stipulation, the shipper delivers the goods for shipment, the carrier is thus deceived into thinking that their value is not in excess of the amount fixed, and his liability should be determined accordingly. Such conduct on the part of the shipper is legally equivalent to the shipper's assent to such valua- tion, and practically conveys to the carrier the information that the value of the goods is not above the amount fixed. If the carrier knows, however, that the value of the goods actually exceeds the amount fixed, then, in accordance with principles just discussed, it would seem that such a stipulation would afford him no protection against liability for his negligence; 29 and this is true, 26 Says Lurton, J., in Kansas City Southern Ey. Co. v. Carl, 227 TJ. S. 639, at page 650, 33 Sup. Ct. 391, 57 L. Ed. 683 : "An agreement to release such a carrier for part of a loss due to negligence is no more valid than one where- by there is complete exemption. Neither is such a contract more valid because it rests upon a consideration than if it was without consideration." 2' See authorities cited in note 24. 28 De Wolff v. Adams Exp. Co., 106 Md. 472, 67 AtL 1099; ALAIR v. NORTHERN PAC. RX. CO., 53 Minn. 160, 54 N. W. 1072, 19 L. R. A 764, 39 Am. St Rep. 588, Dobie Cas. Bailments and Carriers, 215; Durgin v. Amer- ican Exp. Co., 66 N. H. 277, 20 Atl. 328, 9 L. R. A. 453; Rappaport v. White's Express Co., 146 App. Div. 576, 131 N. Y. Supp. 131; Norton v. Adams Exp. Co., 123 Mo. App. 233, 100 S. W. 502 ; Smith v. American Exp. Co., 108 Mich. 572, 66 N. W. 479; Graves v. Adams Exp. Co., 176 Mass. 280, 57 N. E. 462; Michalitschke Bros. & Co. v. Wells Fargo & Co., 118 Cal. 683, 50 Pac. 847; Pacific Exp. Co. V. Ross (Tex. Civ. App.) 154 S. W. 340. 28 MURPHY v. WELLS FARGO & CO. EXPRESS, 99 Minn. 230, 108 N. W. 1070, Dobie Cas. Bailments and Carriers, 218; Powers Mercantile Co. r. § 133) AGBEED VALUATION OF GOODS 403 whether this knowledge be gained from outside sources, or wheth- er the appearance of the goods reasonably suggests their real value. The failure of the shipper to state what the carrier already knows does not, of course, deceive the carrier ; while the carrier, knowing the real value, should not be permitted, even partially, to escape full liability for his negligent acts. The stipulation in question is of particular importance in express receipts, 30 as the goods sent by express are usually of comparative- ly great value in proportion to their bulk. Stipulations Limiting Recovery to Value of Goods at Time and Place of Shipment In many bills of lading a stipulation is found providing that, in case of loss even by negligence, the value of the goods at the time and place of shipment shall constitute the measure of damages which the shipper may recover. The usual measure of damages, as we shall see, 31 when the goods are lost, is their value at their des- tination at the time the goods should have arrived in good condition. Such stipulations, though repudiated by some courts, 32 have for' the most part been sustained as both reasonable and valid. 33 These stipulations do not seek, in case of loss by negligence, to limit the carrier's liability to an amount less than the value of the goods. They simply specify the time and place at which this value shall be reckoned. The value of the goods at the destination, is ordinarily greater than at the place of shipment, since this usually Wells Fargo & Co., 93 Minn. 143, 100 N. W. 735; Orndorff v. Adams Exp. Co., 3 Bush. (Ky.) 194, 96 Am. Dec. 207; Kember v. Southern Exp. Co., 22 La. Ann. 158, 2 Am. Rep. 719; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140. There are cases, however, holding this stipulation valid in spite of the carrier's knowledge of a real value far exceeding the stipulated amount See George N. Pierce Co. v. Wells Fargo & Co., 189 Fed. 561, 110 C. C. A. 645; D'Arcy v. Adams Exp. Co., 162 Mich. 363, 127 N. W. 261. 30 This is indicated by the mere titles of the cases. See, for example, the cases cited in the preceding note. si Post, § 160. 32 Illinois Cent. R. Co. v. Bogard, 78 Miss. 11, 27 South. 879; McConnell Bros. v. Southern R. Co., 144 N. C. 87, 56 S. E. 559; Southern Pac. Ry. Co. v. D'Arcais, 27 Tex. Civ. App. 57, 64 S. W. 813; Ruppel v. Allegheny Valley Ry., 167 Pa. 166, 31 Atl. 478, 46 Am. St Rep. 666. 33 Gratiot St. Warehouse Co. v. Missouri, K. & T. R. Co., 124 Mo. App. 545, 102 S. W. 11 ; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960 ; Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524; MATHESON v. SOUTHERN RY., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290; Zouch v. Chesapeake & O. Ry. Co., 36 W. Va. 524, 15 S. E. 185, 17 L. R. A. 116; Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; Squire v. New York Cent. R. Co., 98 Mass. 239, 93 Am. Dec. 162; Tibbits v. Rock Island & P. Ry. Co., 49 111. App. 567. 404 LIABILITY UNDER SPECIAL CONTKACT (Ch. 11 supplies the reason for the shipment, and some courts on this ground have considered these stipulations in the light of contracts, attempting to limit the carrier's liability for negligent loss. 34 The courts upholding these contracts lay stress on the advantage and convenience, as. to proof, in thus fixing a definite time and place as of which the value of the goods is to be reckoned. 86 Even by these courts, upholding the validity of such stipulations, these stipulations are limited to loss or injury by the carrier, wheth- er with or without negligence. They, do not apply when the car- rier is guilty of a conversion of the goods. 80 Effect of Agreed Valuation in Cases of Injury or Partial Loss Another question involving cordial disagreement on the .part of the courts arises when, in cases of agreed valuation, the goods are injured or a part of the shipment is lost. The difficulty lies in de- termining the measure of recovery in such cases. According to some courts, the shipper recovers the full amount of damage suf- fered up to the amount of the agreed valuation, on the theory that the valuation fixes merely the limit of recovery, and that the ship- per recovers all damage actually incurred, provided it does not exceed the valuation fixed. 87 The doctrine of another line of authorities is that the shipper recovers only that proportion of the actual damage which the agreed valuation bears to the actual value of. the goods. 88 The latter rule is believed to be preferable, since it is in better accord with the theory of a real valuation accepted by the carrier as such. SAME— LIMITATIONS AS TO TIME AND MANNER OF PRESENTING CLAIMS 134. The carrier may by contract require that claims for damages be presented in a certain manner and within a specified time, and this contract will be valid, provided such stip- ulations as to time and manner be reasonable. 8* See cases cited in note 32. so See cases cited in note 33. 36 Erie Dispatch v. Johnson, 87 Tenn. 490, 11 S. "W. 441; Shelton v. Canadi- an Northern R. Co. (C. C.) 189 Fed. 153. 37 Michalitsehke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683, 50 Pac 847 ; Nelson v. Great Northern R. Co., 28 Mont. 297, 72 Pac. 642; Brown v. Cunard S. S. Co., 147 Mass. 58, 16 N. E. 717 ; Visanska v. Southern Exp. Co., 92 S. C. 573, 75 S. E. 962. 8 8 O'Malley v. Great Northern Ry. Co., 86 Minn. 380, 90 N. W. 974; United States Exp. Co. v. Joyce, 36 Ind. App. 1, 69 N. E. 1015; Shelton v. Canadian Northern R. Co. (C. C.) 189 Fed. 153; Goodman v. Missouri, K. & T. Ry. Co., 71 Mo. App. 460; Greenfield v. Wells Fargo & Co. (Sup.) 134 N. T. Supp. 913. § 134) LIMITATIONS AS TO PRESENTATION OP CLAIMS 405 Such stipulations have nothing to do with limiting the carrier's liability for negligence. 89 They do not even attempt to limit the amount for which the carrier may be held responsible. The pur- pose of this stipulation- is to give the carrier notice of the claim at a time when it is still fresh, and when the carrier may by diligent inquiry learn the facts and circumstances surrounding such claim.* The difficulties of such an inquiry increase tremendously when it is started long after the loss or injury upon which the claim is based. Especially is this true of a carrier daily engaged in hun- dreds or thousands of similar transactions. ' In order that such a stipulation may be valid, however, the time in which the claim can be presented must be reasonable." If the time stipulated is unreasonable, then the stipulation is of no effect.* 2 What is a reasonable time is a relative question, depending on the circumstances of each particular case.* 8 Thus, thirty hours after so Liquid Carbonic Co. v. Norfolk & W. R. Co., 10T Va. 323, 58 S. E. 569, 13 L. R. A. (N. S.) T53; Cooke v. Northern Pac. R. Co., 22 N. D. 266, 133 N. W. 303. *o See cases cited in note 41. "This is a very reasonable and proper pro- vision, to enable the defendants, while the matter is still fresh, to institute proper inquiries and furnish themselves with evidence on the subject. The defendants do a large business, and to allow suits to be brought against them, without such notice, at any length of time, would be to surrender them, bound hand and foot, to almost every claim which might be made. It would be next to impossible, when a thousand packages, large and small, are for- warded by them daily, to ascertain anything about the loss of one of them, at a distance of six months or a year." Weir v. Express Co., 5 Phila. (Pa.) 355. « Deaver-Jeter Co. v. Southern Ry., 91 S. C. 503, 74 S. E. 1071, Ann. Cas. 1914A, 230; St. Louis & S. F. R. Co. v. Phillips, 17 Okl. 264, 87 Pac. 470; Pennsylvania Co. v Shearer, 75 Ohio St. 249, 79 N E. 431, 116 Am. St. Rep. 730, 9 Ann. Cas. 15 ; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct 278, 45 L. Ed. 419 ; Engesether v. Great Northern Ry. Co., 65 Minn. 168, 68 N. W. 4 ; St. Louis & S. F R. Co. v Hurst, 67 Ark. 407, 55 S. W. 215; Gulf, C. & S. F. Ry. Co. v Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494 ; Southern Exp. Co. v. Hunnicutt, 54 Miss. 566, 28 Am. Rep. 385 ; SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226; Weir v. Express Co., 5 Phila. (Pa.) 355; U. S. Exp. Co. v. Harris, 51 Ind. 127 ; Southern Exp. Co. v. Glenn, 16 Lea (Tenn.) 472, 1 S. W. 102 ; Lewis v. Railroad Co., 5 Hurl. & N. (Ehg.) 867. Similar stipulations contained in insurance policies are sustained. Steen v. Niagara Fire Ins. Co., 89 N. Y. 315, 42 Am. Rep. 297. Likewise in telegraph contracts. Cole v. Western U. Tel. Co., 33 Minn. 227, 22 N. W. 385. « Dixie Cigar Co. v. Southern Express Co., 120 N. C. 348, 27 S. E. 73, 58 Am. St. Rep. 795; Central Vermont R. Co. v. Soper, 59 Fed. 879, 8 C. C. A. 341 ; Southern Exp. Co. v. Bank of Tupelo, 108 Ala. 517, 18 South. 664 ; Os- terhoudt v. Southern Pac. Co., 47 App. Div. 146, 62 N. X. Supp. 134; Norfolk & W. Ry. Co. v. Reeves, 97 Va. 284, 33 S. E. 606. ** This is usually a question of fact for the jury. Kansas & A. V. R. Co. 406 LIABILITY UNDER SPECIAL CONTRACT (Ch. 11 delivery was in one case held reasonable ; ** while thirty days from the date of the bill of lading was in another case held unreason- able. 45 A stipulation requiring a consignee of cattle to present any claim for damages at the time of the receipt of the cattle, and before they are unloaded and mingled with other cattle, was held reason- able and valid. 16 But a stipulation requiring goods to be examined v. Ayers, 63 Ark. 331, 38 S. W. 515; St. Louis & S. F. R. Co. v. Phillips, 17 Okl. 264, 87 Pac. 470; International & G. N. By. Co. v. Garrett, 5 Tex. Civ. App. 540, 24 S. W. 354. The following periods have been held reasonable: Ninety days, SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Do- bie Cas. Bailments and Carriers, 226. Thirty days, Hirshberg v. Dinsmore, 12 Daly (N. Y ) 429 ; Smith v. Dinsmore, 9 Daly (N. Y.) 188 ; Kaiser v. Hoey (City Ct. N. Y.) 1 N. Y. Supp. 429 ; Southern Exp. Co. v. Hunnicutt, 54 Miss. 566, 28 Am. Rep. 385; Glenn v. Southern Exp. Co., 86 Tenn. 594, 8 S. W. 152; Weir v Express Co., 5 Phila. (Pa.) 355. Five days, Chicago & A. R. Co. v. Simms, 18 111. App. 68 ; Dawson v. St. Louis, K. C. & N. Ry. Co., 76 Mo. 514. Sixty days, Thompson v Chicago & A. R. Co. 22 Mo. App. 321. Seven days, Lewis v. Railway Co., 5 Hurl & N (Eng.) 867. The following periods have been held unreasonable: Sixty days from date of contract, Pacific Exp. Co. v. Darnell (Tex.) 6 S. W 765. Thirty days from date of contract, Adams Exp. Co. v. Reagan, 29 Ind. 21, 92 Am. Dec. 332, Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118. Where the period is fixed without reference to the time of loss or length of journey, it is unreasonable. Porter v. Southern Exp. Co., 4 S. C. 135, 16 Am. Rep. 762 ; Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118. But see SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226 ; and cf. Central Vermont E. Co. v. Soper, 8 C. C. A. 341, 59 Fed. 879. Stipulation, in a contract for carriage of freight, that as a condition to recovery for in- jury to the property the carrier shall be given notice within a certain time of claim for damages, must be reasonable, and whether it is reasonable, where the notice is required to be given within a day after delivery at destination, is a question for the jury ; the stock shipped having arrived at 2 p. m., there having been no agent at such station, and the nearest agent to whom notice might have been given having been 35 miles away. St. Louis, I. M. & S. R. Co. v. Furlow, 89 Ark. 404, 117 S. W. 517. Where shippers had ample time and opportunity to notify the carriers of damage to cotton which occur- red before ocean transportation began, a provision in the bills of lading re- quiring notice of damage within 30 days after delivery of the cotton at des- tination was not unreasonable. Inman & Co. v. Seaboard Air Line R. Co, (C. C.) 159 Fed. 960. A provision of a bill of lading that the carrier should not be liable in any suit to recover for loss or damage to the property, unless suit was brought within one year, was reasonable. Ingram v. Weir (0. C.) 166 Fed. 328. " St. Louis & S. F. R. Co. v. Hurst, 67 Ark. 407, 55 S. W. 215. *s. Bailments and Carriers. 267; Id., 187 U. S. 648. 23 Sup. Ct. 847. 47 L. Fd. 348; Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 423. 5)2 N. W. 88, 59 L. R. A. 796. i« Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 423. 92 N. W. 8R. 59 L. R. A. 796; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. U. A. 608, Doliie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348. '» Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. 490 QUASI CARRIERS OF GOODS POST OFFICE DEPARTMENT (Ch. 14 liable to senders of mail for loss or damage caused by the negligence or misconduct of such agents or assistants, who are themselves regarded as public agents. 20 Thus, under this view, a rider or driver employed by the contractor for carrying the mails is consid- ered an assistant about the business of the government. Though employed and paid, and liable to be discharged at pleasure, by the contractor, such rider or driver is viewed as being employed in the public service of the government rather than in the private service of the contractor. The contractor' is therefore not liable to the sender of mail for the negligence of the rider or driver. 21 This rule is sometimes difficult to apply to corporations (which - now control practically all the most important contracts for carry- ing the mail great distances), since a corporation can act only through agents. There are certain acts, however, such as providing equipment and devising plans for the transportation of the mails, which are regarded as the acts of the corporation ; while the single negligent act of a subordinate employe in actually handling the mail-bags would be regarded, for the purposes, of the rule in ques- tion, as merely the individual act of the employe of the corporate mail contractor. 22 In support of this rule it should be said that most of the contracts for carrying the mail necessarily contemplate and require the em- ployment of subordinate agents, and the government recognizes these agents in certain ways and prescribes certain requirements that they must possess in order to engage at all in the business of carrying the mail, even as the agents of the mail contractor. A few cases, however, refuse to recognize this exemption and hold the mail contractor responsible for the negligent acts of his R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348. 20 Foster v. Metts, 55 Miss. 77, 30 Am. Rep. 504; Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206, and note contending for the opposite view; Hutch- ins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248 ; German State Bank v. Minne- apolis, St. P. & S. S. M. R. Co. (C. C.) 113 Fed. 414; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348; Boston Ins. Co. v. Chicago, R. I. & P. By. Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796. 2i Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248. 22 Boston Ins. Co. v. Chicago, R. I. & P. By. Co., 118 Iowa, 423, 92 N. W, 88, 59 L. R. A. 796; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, Dobie Cas. Bailments and Carriers, 267, 65 L. R. A. 397; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348. § 152) 0ONTBACTOB8 FOE CABEYING THE MAILS 491 agents and subordinates. 28 These cases insist that such agent or subordinate is a mere private employe of the mail contractor, for whose conduct the mail contractor should be responsible under the general rules of master and servant. as Sawyer v. Corse, 17 Grat. (Va.) 230, 94 Am. Dec. 445; Central K. & Bank- ing Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334. See, also, in support of this view, note 42 Am. Dec. 20S. 492 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 CHAPTER XV ACTIONS AGAINST CARRIERS OF GOODS 153. In General. 154. The Parties. 155. The Form of Action. 156. The Pleadings. 157. The Evidence. 158. The Measure of Damages — In General. 159. Actions for Carrier's Refusal to Accept and Transport the Goods. 160. Actions for Total Loss or Nondelivery of the Goods. 161. Actions for Injury to the Goods. 162. Actions for Delay in Transportation or Delivery of the Goods. 163. Special Damages. IN GENERAL 153. Since the substantive rights of the carrier of goods and those with whom he deals must, if disputed, be litigated in the courts, these rights are qualified by, and are dependent upon, the principles of law governing actions against the carrier of goods. According to the accepted classification, actions against com- mon carriers of goods may logically and conveniently be treated under the following heads: (1) The parties. (2) The form of action. (3) The pleadings. (4) The evidence. (5) The measure of damages. The substantive rights of the common carrier of goods and those with whom he deals have been considered at some length. In the present chapter, the last dealing with the carrier of goods, the subject of actions against this carrier will be discussed. Apart, in a measure, from the substantive rights already discussed, many questions arise in connection with the enforcement of these rights by action in a court. For a solution of the great majority of these questions, resort must he had to books dealing with the adjective or procedural law under the three great subjects of pleading, prac- tice and evidence. There are certain questions in this connection, however, that can be discussed, and should be discussed, in any treatment of carriers of goods. The present chapter is therefore devoted to a brief consideration of these questions. § 154) THE PAETIE8 493 Thus the first question arises as to the person who is the proper party plaintiff in the action in which the carrier of goods is the defendant, involving the relations of the consignor and consignee to the carrier, to each other, and to the goods. The form of action is highly important in states in which the outworn system of com- mon-law pleading still obtains ; but even in those states which have adopted the reformed procedure, known as "Code states," the the- ory of the case as based on contract or tort involves distinctions that cannot be overlooked. The form of the pleadings, or written statements filed by the parties to the action previous to the trial, is beyond the scope of this book. So this subject is dismissed with a few observations on the necessary allegations in these pleadings. The admissibility or relevancy of evidence is not dis- cussed, but merely what must be proved by evidence that is both relevant and admissible. Finally, the chapter closes with a state- ment and very brief discussion of the rules, and reasons underlying them, determining the amount of damages for which the common carrier of goods may be held liable. THE PARTIES 154. By the great weight of authority, the following rules apply in determining the proper party plaintiff in an action against the common carrier for loss of, injury to, or delay in transporting, the goods : (a) Where the contract for transportation is directly with the consignor, the consignor, whether or not he retains any interest in the goods, may maintain an action on such contract in his own name for any breach of this contract ; but the recovery is for the benefit of the consignee, if the latter is the real owner of the goods. (b) Prima facie the consignee is the owner of the goods, and is therefore the person with whom, through the agency of the consignor, the contract is made, and hence the con- signee can sue on this contract for any breach of it result- ing in loss of, or damage to, the goods. But this presump- tion may be rebutted. (c) The person at whose risk the goods are carried — that is, the person having a general or special property in the goods, and who would therefore suffer if the goods are lost or injured — may maintain an action in tort for such loss or injury. 494 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 (d) A consignee who has no property in the goods, either gen- eral or special, and incurs no risk in their transportation, cannot maintain, either in contract or tort, any action for the loss of, or damage to, the goods. The action against the Common carrier of goods may be either in contract (ex contractu), arising out of the carrier's express or implied contract for the transportation of the goods, or in tort (ex delicto), arising out of the. carrier's failure to live up to the duty imposed on him by law. This subject is considered in the next section, but it greatly conduces to clearness, in discussing the question of the proper party plaintiff, if this distinction is care- fully kept in mind. Action by the Consignor on the Contract When, as is usually the case, the contract of shipment is made by the carrier directly with the consignor, the consignor, as a party to this contract, may bring an action against the carrier for any breach of the contract. 1 Obviously, the consignor is here the per- son with whom the carrier has contracted to transport and deliver the goods. He, therefore, is entitled to the performance of such contractual duty and, under the rule stated, may maintain an action on the contract for a breach thereof. Whether or not the consignor makes the contract on behalf of another, or whether or not the consignor has any interest in the goods, by virtue of the fact that the contract is made in his name, he, by the well-known rules of agency, is entitled to sue on such contract, and the carrier cannot defend on the ground that the consignor is acting on behalf of an undisclosed principal. 2 i CARTER v. SOUTHERN RY. CO., Ill Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273; Ross v. Chicago, R. I. & P. K. Co., 119 Mo. App. 290, 95 S. W. 977; Zalk v. Great Northern R. Co., 98 Minn. 65, 107 N. W. 814; Swift v. Pacific Mail S. S. Co., 106 N. Y. 206, 12 N. E. 583; Dows v. Cobb, 12 Barb. (N. Y.) 310, 316; Ohio & M. R. Co. v. Emrich, 24 III. App. 245; Stafford v. Walter, 67 111. 83; Great Western R. Co. v. McComas, 33 111. 185; Illinois Cent R, Co. v. Schwartz, 11 111. App. 482, 487; Blanchard v. Page, 8 Gray (Mass.) 281, 295; Atchison v. Chicago, R. I. & P. Ry. Co., 80 Mo. 213; Harvey v. Terre Haute & I. R. Co., 74 Mo. 538; Cantwell v. Pacific Exp. Co., 58 Ark. 487, 25 S. W. 503 ; Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 81, 9 Am. Rep. 439 ; Missouri Pac. Ry. Co. v. Smith, 84 Tex. 348, 19 S. W. 509; Carter v. Graves, 9 Yerg. (Tenn.) 446; Goodwyn v. Douglas, Cheves (S. C.) 174; Joseph v. Knox, 3 Camp. (Eng.) 320; Moore v. Wilson, 1 Term R. (Eng.) 659; Davis v. James, 5 Burrows (Eng.) 2680; Mead v. Railway Co., 18 Wkly. Rep. (Eng.) 735; Dunlop v. Lambert, 6 Clark & F. (Eng.) 600. See, also, cases cited in note 2. : Blanchard v. Page, 8 Gray (Mass.) 281; Reynolds v. Chicago & A. R Co., 85 Mo. 90; Spence v. Norfolk & W. R. Co., 92 Va. 102, 22 S. B. 815, 29 L. K. § 154) THE PARTIES 4^5 In a very early case before Lord Mansfield (Davis v. James) 3 the decision was properly placed on the ground that the defendants were liable for the consequences to the original consignors, wheth- er the property was in them or not, because the carrier agreed with them to carry the goods safely, and the action was for the breach of that agreement. Unfortunately, however, the authority of this case was weakened by the case of Dawes v. Peck, 4 decided not long after. In this case Lord Kenyon held that the proper party to bring the action against the carrier is the person having an interest in the goods, for he is the one who has really sustained the loss. It is generally conceded that such a person may sue in tort, but it does not follow that thereby the consignor is prevented from suing on the contract he has made. Though there are quite a few cases holding the contrary," the doctrine is now generally recognized, both on principle and au- thority, that, whatever the rights of others, the consignor may sue the carrier for breaches of the contract entered into between such carrier and the consignor. 8 As was well said by Livingston, J., in a New York case : 7 "It would be without example to deny a party to whom an express promise is made, whether as trustee or in his own right, a remedy for its violation. This would produce the singular case of a party's having a right to break an engagement, without responsibility to him with whom it is made, merely because it is possible some other person may have a remedy against him - ; or, what would be more strange, it would make the very act which consummates the bargain between the shipper and master — that is, the delivery — destroy the remedy of the former on the contract. A. 578; Southern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. Rep. 4; CARTER v. SOUTHERN RT. CO., Ill Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273; Gulf, C. & S. F. R. Co. v. A. B. Patterson & Co. (Tex. Civ. App.) 144 S. W. 698. See cases cited in the preceding note. 8 5 Burrows, 2680. * 8 Term R. (Eng.) 330. b Green v. Clarke, 12 N. Y. 343; Griffith v. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; Pennsylvania Co. v. Holderman, 69 Ind. 18; South & N. A. R. Co. v. Wood, 72 Ala. 451 ; Pennsylvania Co. v. Poor, 103 Ind. 553, 3 N. E. 253; McLaughlin v. Martin, 12 Colo. App. 268, 55 Pac. 195; Union Feed Co. v. Pacific Clipper Line, 31 Wash. 28, 71 Pac. 552; Union Pac. R. Co. v. Met- calf, 50 Neb. 452, 69 N. W. 961. e See 3 Hutch. Carr. §§ 1308-1314. See cases cited in notes 1 and 2. See also, Northern Line Packet Co. v. Shearer, 61 111. 263; Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586, 28 N. E. 208; Finn v. Western R. Corp., 112 Mass. 524, 17 Am. Rep. 128; Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965. ' Potter v. Lansing, 1 Johns. (N. Y.) 215, 3 Am. Dec. 310. 196 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 To whom the goods belong is of no importance if it be once con- ceded, which cannot be controverted, that the right of property may be in one, while another, by express agreement, may have a remedy for some negligence or misconduct in relation to it." Nor is it necessary, in order to authorize the consignor to main- tain an action against a carrier, where he has neither a general nor a special property in the goods shipped, that the carrier's contract with him should be an express one. The implied contract arising out of the delivery of the goods by the consignor to the carrier for transportation is entirely sufficient. 8 In the majority of cases, the consignor is not the owner of the goods. When this is true the consignor, who recovers on the con- tract against the carrier, is liable to the true owner of the goods for the amount recovered. 9 A recovery by the consignor against the carrier is a bar to a subsequent action by the owner for the same wrong. 10 The ultimate disposition of the amount recovered is no legal concern of the carrier, but is a question between the consignor and owner. The carrier, however, being in all cases .liable on the contract to the consignor with whom such contract is made, must respond in damages to such consignor; but, having once fully re- sponded, the carrier is exempt from being further sued. The ac- tion of the consignor who has no interest in the goods is an action on the contract; he cannot sue in tort. 11 s Finn v. Western R. Corp., 112 Mass. 524, 528, 17 Am. Rep. 128; Texas & P. Ry. Co. v. Nicholson, 61 Tex. 491; Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct 566, 28 L. Ed. 527. » Illinois Cent. R. Co. v. Schwartz, 13 111. App. 490; Ohio & M. R. Co. v. Em- rich, 24 111. App. 245 ; Finn v. Western R. Corp., 112 Mass. 524, 17 Am. Sep. 128; American Roofing Co. v. Memphis & C. Packet Co., 5 Ohio N. P. 146; CARTER v. SOUTHERN RY. CO., Ill Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273. io CARTER v. SOUTHERN RY. CO., Ill Ga. 38, 36 S. E. 308, 50 L. R. A. 354, Dobie Cas. Bailments and Carriers, 273; Southern Exp. Co. v. Craft, 49 Miss. 480, 19 Am. Rep. 4. "The shipper is a party in interest to the contract, and it does not lie with the carrier who made the contract with him to say up- on a breach of it that he is not entitled to recover the damages unless it be shown that the consignee objects, for without that it will be presumed that the action was commenced and is prosecuted with the knowledge and consent of the consignee, and for his benefit. The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor or other mercantile agent, who contracts in his owu name on behalf of his principal." Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 81, 9 Am. Rep. 439. See, also, cases cited in the preceding note. ii See cases cited in notes 1, 2, and 6. See, also, Wetzel v. Power, 5 Mont. 214, 2 Pac. 338; Fast v. Canton, A. & N. R. Co., 77 Miss. 498, 27 South. 525; P. Garvan v. New York Cent. & H. R. R. Co., 210 Mass. 275, 96 N. E. 717. § 154) THE PARTIES 497 Consignee Presumed to Have Contracted with Carrier In the absence of a contrary showing, there is a prima facie pre- sumption that the consignee is the owner of the goods, and hence that the contract of transportation was made by the consignor on his behalf. 12 Under these circumstances, the consignee is the real principal in such contract, and the consignor was acting merely as his agent. Therefore, under the well-known rules of agency, the consignee as the undisclosed principal may sue the carrier on the contract, although such contract was made by the carrier with the consignor and in the latter's name. 13 And this right of the consignee to sue the carrier on the contract, when it exists, is para- mount to the similar right of the consignor. 14 12 Merchants' Despatch Co. v. Smith, 76 111. 542; Thompson v. Fargo, 49 N. Y. 188, 10 Am. Rep. 342; Krulder v. Ellison, 47 N. Y. 36, 7 Am. Kep. 402; Brower v. Peabody, 13 N. Y. 121; Dows v. Greene, 24 N. Y. 638; Dows v. Per- rin, 16 N. Y. 325 ; Sweet v. Barney, 23 N. Y. 335; Frank v. Hoey, 128 Mass. 263; Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607; Smith v. Lewis, 3 B. Mon. (Ky.) 229; Arbuckle v. Thompson, 37 Pa. 170; Decan v. Shipper, 35 Pa. 239, 78 Am. Dec. 334; Congar v. Galena & C. U. R. Co., 17 Wis. 477; Dyer v. Great Northern Ry. Co., 51 Minn. 345, 53 N. W. 714, 38 Am. St Rep. 506; Benjamin v. Levy, 39 Minn. 11, 38 N. W. 702; McCauley v. David- son, 13 Minn. 162 (Gil. 150); Straus v. Wessel, 30 Ohio St. 211, 214; W. & A. R. Co. v. Kelly, 1 Head (Tenn.) 158; East Tennessee & G. R. R. v. Nelson, 1 Cold. (Tenn.) 272; East Line & R. R. Ry. Co. v. Hall, 64 Tex. 615; Strong v. Dodds, 47 Vt 348, 356; Grove v. Brien, 8 How. 429, 12 L. Ed. 1142; Law- rence v. Minturn, 17 How. 100, 15 L. Ed. 58; Blum v. The Caddo, 1 Woods, 64, Fed. Cas. No. 1,573; Pennsylvania Co. v". Holderman, 69 lnd. 18; Madi- son, I. & P. R. Co. v. Whitesel, 11 lnd. 55 ; Scammon v. Wells, Fargo & Co., 84 Cal. 311, 24 Pac. 284; Webb v. Winter, 1 Cal. 417; South & N. A. R. Co. v. Wood, 72 Ala. 451 ; Dawes v. Peck, 8 Terra R. (Eng.) 330 ; Evans v. Marlett, 1 Ld. Raym. (Eng.) 271 ; Coleman v. Lambert, 5 Mees. & W. (Eng.) 502, 505. As to suit by consignee named in bill of lading, see Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; Butler v. Smith, 35 Miss. 457; Grifflth v. Ingledew, 6 Serg. & a. (Pa.), 429, 9 Am. Dec. 444 ; Bonner v. Marsh, 10 Smedes & M. (Miss.) 376, 48 Am. Dec. 754. Suit in admiralty, see McKinlay v. Morrish, 21 How. 343, 355, 16 L. Ed. 100; Houseman v. The North Carolina, 15 Pet. 40, 49, 10 L. Ed. 653. See, also, Cleveland, C, C. & St. L. Ry. Co. v. Moline Plow Co., 13 lnd. App. 225, 41 N. E. 480 ; Pennsylvania Co. v. Poor, 103 lnd. 553, 3 N. E. 253. 13 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 380, 12 L. Ed. 465; Sanderson v. Lamberton, 6 Bin. (Pa.) 129; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184; Ames v. First Div. St. Paul & P. R. Co., 12 Minn. 412 (Gil. 295); Taintor v. Prentfergast, 3 Hill (N. Y.) 72, 38 Am. Dec. 618; Ford v. Williams, 21 How. 287, 16 L. Ed. 36. See, also, Mouton v. Louis- ville & N. R. Co., 128 Ala. 537, 29 South. 602; Pennsylvania Co. v. Poor, 103 lnd. 553, 23 N. E. 253; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184. " See Burriss & Haynie v. Missouri Pac. R. Co., 105 Mo. App. 659, 78 S. W. 1042; Dyer v. Great Northern Ry. Co., 51 Minn. 345, 53 N. W. 714, 38 Am. St. Bep. 506; McLaugh'in v. Martin, 12 Co'o. App. 268, 55 Pac. 195; Potter t. Lansing, 1 Johns. (N. Y.) 215, 3 Am. Dec. 310. Dob.Bailm. — 32 498 ACTIONS AGAINST CARRIERS OP GOODS (Ch. 15 This presumption, however, that the consignee is the owner of the goods on whose behalf the consignor has made the contract of transportation, is merely a prima facie one, and is hence rebut- table. 16 When it is rebutted, then, of course the consignee cannot sue the carrier on the contract. 18 Whether or not the delivery of the goods to the carrier by the consignor passes title to the goods depends primarily on the intention of the parties. 17 Such a de- livery, in pursuance of previous instructions from the consignee, ordinarily passes title, and thus enables the consignee to sue on the contract. 18 This is not the case, however, when such delivery is without instructions from the consignee, 19 or when the goods are sent on approval, 20 or when the title, for any reason, does not pass to the consignee. 21 In these cases, then, the consignee is not the owner, and hence he can bring no suit against the carrier on the ™ Sweet v. Barney, 23 N. Y. 335; Price v. Powell, 3 N. Y. 322; Everett v. Saltus, 15 Wend. (N. Y.) 474; Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; Congar v. Galena & C. U. R. Co., 17 Wis. 477, 486; Smith v. Lewis, 3 B. Mon. (Ky.) 229; Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118; South & N. A. R. Co. v. Wood, 72 Ala. 451 ; Bonner v. Marsh, 10 Smedes & M. (Miss.) 376 ; Stanton v. Eager, 16 Pick. (Mass.) 467; Bushel v. Wheeler, 15 Q. B. (Eng.) 442. See St. Louis & S. P. R. Co. v. Allen, 31 Okl. 248, 120 Pac. 1090, 39 L. R. A. (N. S.) 309; White v. Schweitzer, 147 App. Div. 544, 132 N. Y. Supp. 644; Ft Worth & D. C. R. Co. v. Caruthers (Tex. Civ. App.) 157 S. W. 238. i6 Wilson v. Wilson, 26 Pa. 393; Hays v. Stone, 7 Hill (N. Y.) 128; Atchi- son, T. & S. F. R. Co. v. Consolidated Cattle Co., 59 Kan. Ill, 52 Pac. 71; Mitchell v. Ede, 11 Adol. & E. (Eng.) 888. See, also, St. Louis & S. P. R. Co. v. Allen, 31 Okl. 248, 120 Pac. 1090, 39 L. R. A. (N. S.) 309. if This and similar questions belong to the law of sales. is See American Sales Act, § 19, rule 4 (2); Williston on Sales, § 278; Unit- ed States v. R. P. Andrews & Co., 207 U. S. 229, 28 Sup. Ct. 100, 52 L. Ed. 185; Prince v. Boston & L. R. Corp., 101 Mass. 542, 100 Am. Dec. 129; National Bank of Bristol v. Baltimore & O. R. Co., 99 Md. 661, 59 AtL 134, 105 Am. St. Rep. 321; Carthage v. Munsell, 203 111. 474, 67 N. E. 831; Plaff v. Pacific Exp. Co., 159 111. App. 493; Vale v. Bayle, Cowp. (Eng.) 294; Krulder v. Elli- son, 47 N. Y. 36, 7 Am. Rep. 402; People v. Haynes, 14 Wend. (N. Y.) 547, 28 Am. Dec. 530. Even though no particular carrier is named. Dutton v. Solo- monson, 3 Bos. & P. (Eng.) 582; Cooke v. Ludlow, 2 Bos. & P. N. R. (Eng.) 119; Arnold v. Prout, 51 N. H. 587, 589; Garland v. Lane, 46 N. H. 245, 248; Wool- sey v. Bailey, 27 N. H. 217; Smith v. Smith, Id. 244, 252; The Mary and Susan, 1 Wheat. 25, 4 L. Ed. 27 ; Dunlop v. Lambert, 6 Clark & F. (Eng.) 600. i» Coats v. Chaplin, 3 Q. B. (Eng.) 483; Wilson v. Wilson, 26 Pa. 393; Hays v. Stone, 7 Hill (N. Y.) 128; Stone v. Hayes, 3 Denio (N. Y.) 575. 20 American Sales Act, § 19, rule 3 (2); Williston on Sales, § 372; Swain v. Shepherd, 1 Moody & R. (Eng.) 223; Cook v. Gross, 60 App. Div. 446, 69 N. X. Supp. 924 ; Hickman v. Schimp, 109 Pa. 16. 2i Coats v. Chaplin, 3 Q. B. (Eng.) 483; Coombs v. Railway Co., 3 Hurl. & N. (Eng.) 510, 27 L. J. Exch. (Eng.) 401; St. Louis & S. F. R. Co. v. Allen. 31 Okl. 248, 120 Pac. 1090, 39 L. R. A. (N. S.)-309. § 154) THE PARTIES 499 contract of transportation ; but this right is under the circumstances confined to the consignor. 22 Suit in Tort by Owner or One Having an Interest in the Goods By virtue of the fact that he is a common carrier of goods, the law imposes on such carrier certain duties. 23 For a failure to per- form these duties, the common carrier is liable to any person en- titled to the performance of these duties. And any person who owns the goods which are transported by the carrier, or has an interest in the goods less than ownership, can insist upon the car- rier's performing such duties as are imposed on him by law. It therefore follows that for any dereliction in his duty (which is a tort) either the owner of the goods or a person having an inter- est in the goods may maintain an action in tort against the car- rier. 24 This action is not on the contract of transportation, but is based on the tort of the carrier in not living up to the duties which the law considers as inherent in his relation of common carrier. Mani- festly those having rights in the goods which are being transported are primarily interested in the performance of these duties, and they are the ones who suffer when the carrier departs from such duty. Apart, therefore, from remedies on the contract, the law gives 22 Atchison, T. & S. F. R. Co. v. Consolidated Cattle Co., 59 Kan. Ill, 52 Pac. 71; Spence v. Norfolk & W. R. Co., 92 Va. 102, 22 S. B. 815, 29 L. R. A. 578; Savannah, P. & W. Ry. Co. v. Commercial Guano Co., 103 Ga. 590, 30 S. E. 555; Louisville & N. R. Co. v. Allgood, 113 Ala. 163, 20 South. 986. 23 Ante, chapter X. 24 Blanchard v. Page, 8 Gray (Mass.) 281, 289; Griffith v. Ingledew, 6 Serg. & R. (Pa.) 429, 438, 9 Am. Dec. 444; Schlosser v. Great Northern R. Co., 20 N. D. 406, 127 N. W. 502; Waters v. Mobile & O. R. Co., 74 Miss. 534, 21 South. 240; Congar v. Galena & C. U. R. Co., 17 Wis. 477; Harvey v. Terre Haute & I. R. Co., 6 Mo. App. 585; P. Garvan v. New York Cent. & H. R. R Co., 210 Mass. 275, 96 N. E. 717; Thompson v. Pargo, 49 N. T. 188, 10 Am. Rep. 342. Suit by those having merely a special property in the goods: Illinois Cent. R. Co. v. Miller, 32 111. App. 259 ; Illinois Cent. R. Co. v. Schwartz, 13 111. App. 490; Thompson v. Fargo, 44 How. Prac. (N. T.) 176; Baltimore & P. Steamboat Co. v. Atkins, 22 Pa. 522; White v. Bascom, 28 Vt 268; Denver, S. P. & P. R. Co. v. Frame, 6 Colo. 382. Mere borrower cannot sue. Lockhart v. Western & A. R. R., 73 Ga. 472, 54 Am. Rep. 883. Factors: Boston & M. R. Co. v. Warrior Mower Co., 76 Me. 251 ; Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, 11 S. W. 49, 3 L. R. A. 539, 10 Am. St. Rep. 331. Bailees : Murray v. Warner, 55 N. H. 546, 549, 20 Am. Rep. 227; - Moran v. Portland Steam Packet Co., 35 Me. 55; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184; Great Western R. Co. v. McComas, 33 111. 185, 187. A laundress delivering laundry to a carrier for transportation to the owner may maintain an action for its loss. Freeman v. Birch, 1 Nevile & M. 420, 3 Q. B. (Eng.) 492, 43 E. C. L. 835. Agents: Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118. 500 ACTIONS AGAINST CARRIERS OF GOODS (Ql. 15 to those having a property (general or special) in the goods the privilege of suing the carrier in tort for a breach of his duty which causes them injury. 26 The considerations just discussed are peculiarly applicable when the common carrier wrongfully refuses to accept goods tendered to him for transportation. This is purely a tort, and there is no contract action, because there is no contract. 28 If, however (though this is very seldom the case), the carrier ha? expressly agreed to accept the goods, and then fails to do so, he may, of course, be sued for a breach of his contract to accept. 27 Consignee, Having no Interest in the Goods, Cannot Sue When the contract of shipment is made with the consignor, the consignee, who, having no interest in the goods, incurs no risk in the transportation, cannot maintain an action against the carrier. 28 He cannot sue on the contract, for the contract is not made on his behalf, nor is the consignor his agent in making the contract. Neither can he sue in tort, for the carrier's duty is not owed to him 2» See cases cited In preceding note. Either the owner (the one who has the general property in the goods) or one with a special property in the goods may sue the carrier, but a recovery by either will bar a subsequent action by the other. Green v. Clarke, 12 N. ¥. 343; Illinois Cent. R. Co. v. Miller, 32 111. App. 259; Illinois Cent. R. Co. v. Schwartz, 13 111. App. 490; Murray v. Warner, 55 N. H. 546, 549, 20 Am. Rep. 227; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184 ; Denver, S. P. & P. R. Co. v. Frame, 6 Colo. 382 ; Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118; The Farm- er v. McCraw, 26 Ala. 189, 72 Am. Dec. 718. The rule is that either the bailor or the bailee may sue, and, whichever first obtains damages, it is a full satis- faction. Murray v. Warner, 55 N. H. 546, 549, 20 Am. Rep. 227; Elkins v. Boston & M. R. Co., 19 N. H. 337, 51 Am. Dec. 184: White v. Bascom, 28 Vt. 268; Nicolls v. Bastard, 2 Cromp., M. & R. (Eng.) 659. 28 Pickford v. Railway Co., 8 Mees. & W. (Eng.) 372 ; Galena & O. D. R. Co. v. Rae, 18 111. 488, 68 Am. Dec. 574; Pittsburgh, C. & St. L. Ry. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682. Such actions are usually brought by the person offering the goods for carriage. Cobb v. Illinois Cent. R. Co., 38 Iowa, 601; Lafaye v. Harris, 13 La. Ann. 553; Pittsburgh, C. & St. L. Ry. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682 ; Pittsburgh, C, C. & St. L. Ry. Co. v. Racer, 5 Ind. App. 209, 31 N. E. 853. 2' Pittsburgh, C. & St. L. Ry. Co. v. Hays, 49 Ind. 207; Texas & P. Ry. Co. v. Nicholson, 61 Tex. 491 ; Northwestern Fuel Co. v. Burlington, C. R. & N. R. Co. (C..C.) 20 Fed. 712. 2 8 Louisville & N. R. Co. v. Allgood, 113 Ala. 163, 20 South. 986; Atchison, T. & S. F. Ry. Co. v. Consolidated Cattle Co., 59 Kan. Ill, 52 Pac. 71: Spence v, Norfolk & W. R. Co., 92 Ya. 102, 22 S. E. 815, 29 L. R. A. 578; Barrett v. Great Northern Ry. Co., 74 Klinn. 477, 77 N. W. 304; Btergner v. Chicago & A. R. Co., 13 Mo. App. 499; Duff v. Budd, 3 B. & B. (Eng.y 177; Brown v. Hodg- son, 4 Taunt (Eng.) 189; Southern Ry. Co. v. M^ko, 136 Ga. 272, 71 S. E. 241. § 155) THE FOKM OF ACTION 501 and he suffers no injury when there is a breach of this duly. The consignee, under these circumstances, is barred of any action against the carrier. THE FORM OF ACTION 155. The common carrier of goods may be sue t d either in contract (ex contractu) on his contract of transportation, or in tort (ex delicto) for any breach of a duty imposed on him by law. Originally, a common carrier's liability was thought to rest exclu- sively upon his common-law duty to receive the goods and to transport and deliver them safely. A breach of this duty consti- tuted a tort, and an action in tort was the only proper remedy. 29 The right of a shipper, however, to sue a common carrier upon his contract, was first recognized in the case of Dale v. Hall (1750) 30 and it is now well established that there is a choice of remedies. The carrier may be sued either ex contractu for the breach of the contract of shipment, or ex delicto for the breach of his common- law duty. 81 2» 3 Hutch. Carr. § 1322; COGGS v. BERNARD, Ld. RayAi. (Eng.) 909, Ifiible Cas. Bailments and Carriers, 1. * V 1 Wils. < En S-) ^ 81 - »'i DenmSta v. Chicago, B. & Q. R. Co., 52 Neb. 140, 71 N. W. 967; Deier\ing v. Waba|& R. Co., 163 Mo. App. 292, 146 S. W. 814 ; Orange County Bank v. Brown, 3\Wend. (N. Y.) 158; Lamb v. Camden & A. R. & Transp. Co., 2 Daly (N. Y.) 454; Catlin v. Adirondack Co., 11 Abb. N. C. (N. Y.) 377; Atlantic Mut. Ins. Co. v. McLoon, 48 Barb. (N. Y.) 27; Smith v. Seward, 3 Pa. 342; Coles t. Louisville, E. & St. L. R. Co., 41 111: App. 607; Wabash, St. L. & P. Ry. Co. v. McCasland, 11 111. App. 491; St Louis, I. M. & S. Ry. v. Heath, 41 Ark. 476; Baltimore & O. R. Co. v. Pumphrey, 59 Md. 390; Mississippi Cent. R. Co. v. Port, 44 Miss. 423; School Dist. in Medfleld v. Boston, H. & E. R. Co., 102 Mass. 552, 555, 3 Am. Rep. 502 ; The Queen of the Pacific (D. C.) 61 Fed. 213; Whittenton Mfg. Co. v. Memphis & O. R. P. Co. (C. C.) 21 Fed. 896; The Grapeshot (D. C.) 22 Fed. 123; The Samuel J. Christian (D. C.) 16 Fed. 796; Ansell v. Waterhouse, 6 Maule & S. (Eng.) 385, 2 Chit. 1, 18 E. C. L. 469. A special contract with the carrier will not preclude the shipper from suing in case without referring to the contract. Clark v. Richards, 1 Conn. 54, 59 ; Arnold v. Illinois Cent. R. Co., 83 111. 273, 25 Am. Rep. 386; Clark v. St. Louis, K. C. & N. Ry. Co., 64 Mo. 440; Oxley v. St Louis, K. C. & N. Ry. Co., 65 Mo. 629; Coles v. Louisville, E. & St. L. R. Co., 41 111. App. 607; Wabash, St. L. & P. Ry. Co. v. Pratt, 15 111. App. 177. But see Kimball v. Rutland & B. R. Co., 26 Vt 247, 62 Am. Dec. 567. Generally damages for delay in ship- ment or loss of property while in a carrier's custody may be recovered either in an action ex contractu or one ex delicto at the option of the pleader. WERNICK v. ST. LOUIS & S. F. R. CO., 131 Mo. App. 37, 109 S. W. 1027, 502 ACTIONS AGAINST CARRIERS OF GOODS (Ql.15 The distinction between actions ex contractu and actions ex delicto was formerly of more importance than it now is. In states in which the antiquated common-law forms of action still obtain, the proper contract action is assumpsit; in tort, the action is tres- pass on the case. 32 Under the system of Code pleading, there is but one form of civil action. Even in Code states, however, there are differences as to the pleadings between a cause of action in contract and one in tort, which make it frequently important to distinguish between the two. The considerations which prompt a pleader in making his election between proceeding ex contractu or ex delicto will be briefly discussed. Advantages of an Action Ex Contractu Under the common-law maxim "actio personalis moritur cum persona," tort actions perished on the death of either party. 33 Ac- tions on contract, however, survived, so that the action ex con- tractu, on the death of the plaintiff, passed to his personal repre^ sentative. 34 Again, the contract action of assumpsit was desirable against the carrier when the pleader wished to join the common counts in assumpsit, which could not be joined in an action ex delicto. 36 Under the system of Code pleading, which permits the joinder in a single complaint of any number of causes of action arising out of contract, the carrier should be sued on the contract, if the pleader wishes to join other causes of action founded on con- tract. 38 Statutes of limitations, which prescribe the time within Dobie Cas. Bailments and Carriers, 278. Where goods transported under a bill of lading were injured by fire, alleged to have resulted from the carrier's negligence, plaintiff was entitled to go to the jury on a count alleging a cause of action in contract, as well as on a count in tort, though it could not re- cover on both. P. Garvan v. New York Cent & H. R. R. Co., 210 Mass. 275, 96 N. E. 717. A shipper whose goods are lost during transit may sue in tort for a breach of the common-law duty of the carrier to deliver, which origi- nates at the place of delivery, or he may sue for breach of the contract of transportation, or he may treat the carrier as a bailee and allege the spe- cific tortious act by which the goods were lost, and found his right to recover thereon which originates at the place where the tortious act occurred. Jter- ritt Creamery Co. v. Atchison, T. & S. F. Ry. Co., 128 Mo. App. 420, 107 S. W. 462. 32 Holden v. Rutland R. Co., 72 Vt. 156, 47 Atl. 403, 82 Am. St Rep. 926; Waters v. Mobile & O. R. Co., 74 Miss. 534, 21 South. 240. See cases cited in the preceding note. 88 Chamberlain v. Williamson, 2 M. & S. (Eng.) 408; Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146. Under modern statutes and modern deci- sions, it is usually held that tort actions to property survive. See 1 Woerner on Administration, §§ 290-303. See, in general, as to the advantages of an ac- tion ex contractu, 3 Hutch. Carr. § 1327. si Hambly v. Trott, Cowp. 371, 375. so 1 Chitty on PI. 114; 3 Hutch. Carr. § 1327. so Bliss on Code Pleading (3d Ed.) §§ 127, 128. § 155) THE FORM OP ACTION 503 which actions must be brought, usually designate a shorter limi- tation on tort actions, so that it may, on this account, be some- times necessary to sue ex contractu. ' When the contract imposes on the carrier some duty or obligation not imposed by the common law, then, of course, for a breach of this duty, the carrier must be sued ex contractu. 87 Thus, if the carrier should agree to provide a special gro©m to attend the ship- per's horse during the entire period of shipment, and the carrier fails to provide such a groom, then must the carrier be sued on his contract, for he owes no such duty apart from that contract. Advantages of an Action Ex Delicto Where there are two or more defendants, and there is any doubt as to the parties liable, it is always safer to sue ex delicto, for in tort the plaintiff may sue any or all of the defendants who are lia- ble, 38 while the rules as to proper parties defendant in actions ex contractu are exceedingly strict. 38 In actions ex delicto, less defi- niteness and precision is required in the plaintiff's statement of his cause of action, and hence the danger of a variance between the pleadings and the proof is not so great as in actions ex contractu. 40 In the matter of joinder, when the common-law action of trespass on the case is brought, a count in trover (which is also an action ex delicto) may be joined ; " but this joinder in an action ex con- 87WBENICK v. ST. LOUIS & S. F. II. CO., 131 Mo. App. 37, 109 S. W. 1027, Dobie Cas. Bailments and Carriers, 278; Masters v. Stratton, 7 Hill (N. Y.) 101; Legge v. Tucker, 1 Hurl. & N. (Eng.) 500; Bliss on Code Pleading (3d Ed.) § 14. as Orange County Bank v. Brown, 3 Wend. (N. Y.) 158; Cabell v. Vaughan, 1 Saund. (Eng.) 291a, 291e; Jones v. Pitcher, 3 Stew. & P. (Ala.) 135, 24 Am. Dec. 716 ; Holsapple v. Rome, W. & O. R. Co., 86 N. Y. 275 ; Mitchell v. Tar- butt, 5 Term R. (Eng.) 649 ; Smith v. Seward, 3 Pa. 342, 345 ; Patton v. Ma- grath, Rice (S. C.) 162, 33 Am. Dec. 98; Pozzi v. Shipton, 8 Adol. & E. (Eng.) 963, 35 E. C. L.. 931. Connecting carriers, see Baker v. Michigan, S. & N. I. R. Co., 42 111. 73; Ansell v. Waterhouse, 6 Maule & S. (Eng.) 385, 18 E. C. L. 469. See, also, Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524'. as Smith v. Seaward, 3 Pa. 342; Mershon v. Hpbensack, 22 N. J. Law,, 372; Patton v. Magrath, Rice (S. C.) 162, 33 Am. Dec. 98; Pozzi v. Shipton, 8 Adol. & E. (Eng.) 963. 40 Weed v. Saratoga & S. R. Co., 19 Wend. (N. Y.) 534; Wylde v. Pickford, 8 M. & W. (Eng.) 443. 4i Dickon v. Clifton, 2 Wils. (Eng.) 319; Dwight v. Brewster, 1 Pick. (Mass.) 50, 11 Am. Dec. 133; Wylde v. Pickford, 8 Mees. & W. (Eng.) 443; Govett v. Radnidge, 3 East (Eng.) 62, 69. Trover is not the proper remedy for loss of goods. Ross v. Johnson, 5 Burrows (Eng.) 2825; Kirkman v. Hargreaves, 1 Selw. N. P. 10th Ed. (Eng.) 411; Anon., 2 Salk. (Eng.) 665; Bowlin v. Nye, 10 Cush. (Mass.) 416. Trover lies for wrongful delivery to third person. Viner v. New Y.ork, A. G. & W. S. S. Co., 50 N. Y. 23; Bush v. Romer, 2 Tbomp. & 504 ACTIONS AGAINST CAEEIEES OF GOODS (Ch. 15 tractu would not be permissible. 42 The measure of damages, too, is more elastic than in actions ex contractu ; punitive damages be- ing sometimes allowed in ex delicto actions.* 3 Finally, in this connection, an action ex delicto is more desirable, when the contract of shipment restricts the common-law liability of the carrier; for, in such an action, the burden of alleging these special limitations and proving that the. loss or injury was included within such lim- itations falls affirmatively on the carrier. 44 THE PLEADINGS 156. The pleadings should indicate clearly the plaintiff's theory of the case, whether this be ex contractu or ex delicto. They should state facts constituting a complete cause of action against the carrier, consistent with this theory, and in harmony with the evidence to be adduced at the trial. Either under the common law or Code system of pleading, the plaintiff should make it perfectly clear in his first pleading whether he is attempting to state a cause of action ex contractu or ex de- licto. 46 When this is made clear, all subsequent pleadings must be C. (N. Y.) 597; Hawkins v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. Dec. 767 Libliy v. Ingalls, 124 Mass. 503; Humphreys v. Reed, 6 Whart. (Pa.) 435 Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109, 100 Am. Dec. 541 Bullard v. Young, 3 Stew. (Ala.) 46; Stephenson v. Hart, 4 Bing. 476; Illi- nois Cent. R. Co. v. Parks, 54 111. 294; Indianapolis & St. L. R. Co. v. Herndon, 81 111. 143; St. Louis & T. H. R. Co. v. Rose, 20 111. App. 670. Also for re- fusal to deliver. Northern Transp. Co. of- Ohio v. Sellick, 52 111. 249; Adams v. Clark, 9 Cush. (Mass.) 215, 57 Am. Dec. 41; Richardson v. Rich. 104 Mass. 156, 159, 6 Am. Rep. 210; Packard v. Getman, 6 Cow. (N. Y.) 757, 16 Am. Dec. 475; Long v. Mobile & M. R. Co., 51 Ala. 512; Hunt v. Haskell, 24 Me. 339, 41 Am. Dec. 387 ; Louisville & N. R. Co. v. Lawson, 88 Ky. 496, 11 S. W. 511; Erie Dispatch v. Johnson, 87 Tenn. 490, 11 S. W. 441; Lewis v. St. Taul & S. C. R, Co., 20 Minn. 260 (Gil. 234); Marsh v. Union Pac. R. Co. (C. C.) 9 Fed. 873. See, also, Ostrander v. Brown, 15 Johns. (N. Y.) 39, 8 Am. Dec. 211. Trover lies where carrier has sold goods, for freight. Sul- livaS v. Park. 33 Me. 438; Briggs v. Boston & L. R. Co., 6 Allen (Mass.) 246, 83 Am. Dec. 626. 42 Coryton v. Lithebye, 2 Saund. (Eng.) 115, and note. See, also, Hoag- land v. Hannibal & St. J. R. Co., 39 Mo. 451; Colwell v. New York & E. R. Co., 9 How. Prac. (N. Y.) 311. is See Mills v. Southern Ry., 90 S. C. 366, 73 S. E. 772; MATHESON v. SOUTHERN R. CO., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290. 4* SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226. 40 For forms of declarations at common law, both in assumpsit (when the § 156) THE PLEADINGS 505 appropriate to the theory of his case thus adopted by the plaintiff. As has just been indicated, when this theory is ex contractu, much greater particularity of statement is required.* 8 There are no peculiar rules of pleading applicable only to actions against car- riers. 47 As in other cases, the plaintiff must allege every fact necessary to show a cause of action against the carrier, entitling the plaintiff to recover. Thus there must be allegations of fact showing (a) the duty owed to the plaintiff (whether arising ex contractu or ex delicto) ; (b) the violation of that duty ; and (c) the resulting damage to the plaintiff. 48 The plaintiff's pleadings must also be drawn with reference to the evidence to be adduced at the trial. The plaintiff's case must be proved as alleged; the allegata and probata must correspond, or a variance between the two might prove fatal to the plaintiff's case. 48 action is on the contract) and in trespass on the case (when the action is on the tort), see any of the standard works on pleading. These are also given in all form books. In the Code states there are no forms of action, but the pleader in his first pleading makes it clear whether he is stating a case ex contractu or ex delicto. See WERNICK v. ST. LODIS & S. F. RY. CO., 131 Mo. App. 37, 109 S. W. 1027, Dobie Cas. Bailments and Carriers, 278. *« Weed v. Saratoga & S. R. Co., 19 Wend. (N. Y.) 534; Wylde v. Pick- ford, 8 M. & W. (Eng.) 443. " In an action against a railroad company to recover damages for loss and injury to property in shipment, based on its common-law liability as a common carrier, it cannot defend on the ground that plaintiff failed to give notice of the loss within a reasonable time unless such defense is specific-ally pleaded. Southern Ry. Co. v. Mooresville Cotton Mills, 187 Fed. 72, 109 C. C. A. 390. *s In 3 Hutch. Carr. § 1334, the following cases are cited in which the plaintiff's statement was held sufficient: Williams v. Baltimore & O. K. Co., 9 W. Va. 33; Missouri Pac. Ry. Co. v. Edwards, 78 Tex. 307, 14 S. W. 607; LANG v. BRADY, 73 Conn. 707, 49 Atl. 199, Dobie Cas. Bailments and Car- riers, 283; Independence Mills Co. v. Burlington, C. R. & N. Ry. Co., 72 Iowa, 535, 34 N. W. 320, 2 Am. St. Rep. 258; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721. And the following cases when the pleading was held insufficient: Cox v. Columbus & W. Ry. Co., 91 Ala. 392, 8 South. 824; Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E> 586, 28 N. E. 208; Richardson v. Chicago & N. W. Ry. Co., 61 Wis. 596, 21 N. W. 49. The failure of a carrier to deliver property received for transporta- tion constitutes, in the absence of proof that the loss was occasioned by an act of God or the public enemy, or resulted from inevitable accident or from inherent defects in the property, a cause of action ; and the shipper need not allege or prove the specific misconduct that incapacitated the car- rier from delivering the goods. Merritt Creamery Co. v. Atchison, T. & S. F. R. Co., 128 Mo. App. 420, 107 S. W. 462. In an action by a shipper against a carrier for damage to goods in transit, particular acts of negligence need not be alleged. Louisville & N. R. Co. v. Warneld & Lee, 129 Ga. 473, 59 S. E. 234; Id., 3 Ga. App. 187, 59 S. E. 604. *» R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. 506 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 THE EVIDENCE 157. The plaintiff's evidence, consistent with his pleadings, in ac- tions for loss of, or injury to, the goods, must show, (a) Delivery of the goods to the carrier. (b) The carrier's undertaking to transport them safely. (c) The carrier's failure in this undertaking. (d) The resulting damage. The plaintiff must prove, consistent with the allegations in his pleadings, facts necessary to make out a cause of action against the carrier. This must be done by evidence that is relevant and ad- missible according to the accepted doctrines of evidence. These facts have been repeatedly stated and require no further discussion here. When the plaintiff thus proves the delivery to the carrier, the carrier's undertaking, and the latter's failure in this undertaking, which results in damage to the goods or loss of them, he has made out a prima facie case. 60 This the carrier may rebut (as we have R. CO., 163 Mo. App. 426, 143 S. W. 839, Dobie Cas. Bailments and Carriers, 196. There was a variance between an allegation that the damage was caus- ed from delay in transportation and proof that it arose from lack of re- frigeration, which was not alleged. Missouri, K. & T. Ry.' Co. of Texas v. McLean, 55 Tex. Civ. App. 130, 118 S. W. 161. A variance in an action for damage to goods shipped in that the initials of the consignee on the waybill were different from those of plaintiff, though the surname was the same, was not necessarily material or fatal. Georgia S. & F. R. Co. v. Barfield, 1 Ga. App. 203, 58 S. B. 236. so This the plaintiff does by showing delivery to the carrier and the car- rier's failure to deliver the goods, as to a loss. Cooper v. Georgia Pac. Ry. Co., 92 Ala. 329, 9 South. 159, 25 Am. St. Rep. 59; The Priscilla (D. C.) 106 Fed. 739; Saleeby v. Central R. Co. of New Jersey, 99 App. Div. 163, 90 N. Y. Supp. 1042; Magnus v. Piatt, 62 Misc. Rep. 499, 115 N. T. Supp. 824; Taugher v. Northern Pac. R. Co., 21 N. D. Ill, 129 N. W. 747. As to dam- age, a prima facie case is made out by showing a delivery of the goods to the carrier in good condition, and redelivery by the carrier in a damaged condition. St. Louis Southwestern R. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594, 115 S. W. 393; FOCKENS v. UNITED STATES EXP. CO., 99 Minn. 404, 109 N. W. 834, Dobie Cas. Bailments and Carriers, 284; Nairn v. Missouri, K. & T. R. Co., 126 Mo. App. 707, 106 S. W. 102 ; Michigan Cent R. Co. v. Osmus, 129 111. App. 79; Vuille v. Pennsylvania R. Co., 42 Pa. Super. Ct. 567. On proof that a carrier received goods in good condition, the burden rests on defendant to show delivery in the same condition to the next carrier or to the consignee ; such proof being within its power. Orem Fruit & Produce Co. of Baltimore City v. Northern Cent. R. Co., 106 Md. 1, 66 Atl. 436, 124 Am. St. Rep. 462. In an action for breakage of goods in transit, the plaintiff must prove that the goods were delivered in good condition and properly packed. E. C. Fuller Co. v. Pennsylvania R. Co., 61 Misc. Rep. 599, 113 N. T. Supp. 1001. § 158) THE MEASURE OF DAMAGES — IN GENERAL 507 seen) by showing that such loss or damage was due either to one of the excepted perils or to a cause from which he has exempted himself by a valid contract." The conflict of opinion as to whether the carrier must, in the case of an excepted peril, go further and show the absence of negligence on his part, has also been adverted. to. 62 The subject of the burden of proof has also been discussed in the specific treatment of the various questions in connection with which it has arisen. THE MEASURE OF DAMAGES— IN GENERAL 158. In determining the amount of damages to which the plaintiff is entitled in an action for the breach of the duty of the carrier, the law, in general, seeks to put the plaintiff in the position in which he would have been had the carrier fully lived up to his duty. Punitive damages are rarely given. The consideration in detail of the measure of damages belongs more properly to a work on damages; but it seems advisable to " See ante, §§ 118, 128. See, also, Gulf, C. & S. F. E. Co. v. Belton Oil Co., 45 Tex. Civ. App. 44, 99 &. W. 430 ; Lloyd v. Haugh & Keenan Storage & Trans- fer Co., 223 Pa. 148, 72 Atl. 516, 21 L. R. A. (N. S.) 188 ; McCord v. Atlantic Coast Line R. Co., 76 S. C. 469, 57 S. B. 477 ; Union Pac. R. Co. v. Stupeck, 50 Colo. 151, 114 Pac. 646. Where a box in which an overcoat was shipped was allowed to remain with the carrier at its destination until its liability became merely that of warehouseman, it was presumed negligent, and under the burden of explaining disappearance of the coat. Levine v. Delaware, L. & W. R. Co., 74 Misc. Rep. 348, 134 N. T. Supp. 217. Where, in an action for the value of a puncheon of molasses which burst while in the custody of a carrier, there is evidence that the cause was the fermentation of the mo- lasses, defendant is entitled to have it considered by the jury under a proper charge, as the carrier is not liable for loss or damage resulting from de- fects inherent in the goods. Currie v. Seaboard Air Line R. Co., 156 N. C. 432, 72 S. E. 493. As to the effect on the burden of proof when the shipper or his agent accompanies the shipment, see St. Louis, I. M. & S. R. Co. v. Pape, 100 Ark. 269, 140 S. W. 265; Winn v. American Exp. Co., 149 Iowa, 259, 128 N. W. 663. The right of a carrier to sue for the freight due and the right of the shipper to sue for damages to the shipment are independent, and it is no defense to an action for damages that the freight has not been paid. Cleveland, C, C. & St. L. Ry. Co. v. Rudy (Ind. App.) 87 N. E. 555. That a rate given to a shipper may be in violation of the rates fixed by the Interstate Commerce Commission does not affect the carrier's liability to re- spond or the shipper's right to recover for loss of the goods, though both the carrier and the shipper might be subject to criminal prosecution, and though the carrier might recover the charges fixed by the commission. Cen- tral of Georgia R. Co. v. Butler Marble & Granite Co., 8 Ga. App. 1, 68 S. E. 775. 62 Ante, §§ 118, 128. 508 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 state the broad rules which govern in the more frequent actions against the carrier of goods. These are actions for the carrier's refusal to accept and transport the goods, actions fpr loss of, or injury to, the goods, and actions for delay in transporting the goods. In this connection it should be noted that in actions on contract the law is stricter in limiting the recovery to the natural, direct, and proximate damages resulting from the carrier's breach of duty. In general, too, the carrier of goods is liable only for compensatory, and not for punitive, damages. 63 In other words, the general theory governing the award of damages is merely to compensate the plain- tiff for the injury he has suffered, and not to go beyond this and give damages for the purpose of punishing the carrier or making such an example of him that he and other carriers will be less likely to sin again in that respect. Though punitive or exemplary dam- ages are more usual in the case of passenger carriers, there are rare instances in which the courts feel justified in awarding such dam- ages against the common carrier of goods. 64 In general, though, the law contents itself in granting only such damages as are neces- sary to place the plaintiff in a position as advantageous as the one that he would have occupied, had the carrier completely per- formed his duty in the transportation of the goods. SAME— ACTIONS FOR CARRIER'S REFUSAL TO ACCEPT AND TRANSPORT THE GOODS 159. The ordinary measure of damages, in an action against the carrier for his wrongful refusal to accept and transport the goods, is the difference between what would have been the value of the goods at the place where and the time when they should have been delivered and their value at the time and place of refusal, less the transportation charges. "a This is borne out by the cases cited in the sections that follow. o* Mills v. Southern Ry. Co., 90 S. C. 366, 73 S. E. 772. For discussion of the compensatory and punitive damages recoverable against the carrier by a husband for injuries to the dead body of his wife, see Wilson v. St Louis & S. F. R. Co., 160 Mo. App. 649, 142 S. W. 775. Where, in an action lor the loss of freight, reckless or willful disregard of consignee's rights or even indifference to them does not appear, but all the testimony tends to show a loss by theft from the carrier or some mistake, which after diligent effort it cannot account for, the carrier is not liable for punitive damages. MATHE- SON v. SOUTHERN RY. CO., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bail- ments and Carriers, 290. To entitle a shipper to punitive damages for de- lay in transportation, gross negligence, or willful or wanton disregard of its duty, on the part of the carrier, must be shown. American Exp. Co. v. Burke & McGuire (Miss.) 61 South. 312. § 159) carkieb's refusal to accept and transport goods 509 If another reasonable mode of conveying the goods can readily be procured after such refusal, then the measure of damages would be the increased cost of transportation by such oth- er mode. The primary object of transportation is to have the use of the goods or an opportunity to sell them at the place of destination. The damages for a wrongful refusal to transport goods is, there- fore, the value to the shipper of his right of having them at the point of destination. For this right the shipper must be ready, of course, to pay the carrier's lawful charges. Ordinarily, then, the measure of damages for the carrier's wrongful refusal would be the differ- ence between the value of the goods at the time and place of refusal and their value at the place of destination at the time they should have been delivered there, less the charges of transportation. 06 Thus, suppose a carrier at Albany wrongfully refuses to accept and transport goods to Boston, the value of the goods at Albany, at the time of refusal being $100, their value at Boston when they should have been delivered being $125, and the lawful charges for such a shipment being $5. Then it is clear that $20 will exactly cover the loss caused to the shipper by the carrier's unjustifiable refusal. The general duty, however, rests on a plaintiff to minimize the damages, at least in so far as this can be done without undue effort or trouble on his part. Hence he cannot recover damages for con- sequences that might clearly have been avoided by the exercise of reasonable diligence on his part. Therefore, if other suitable means of transportation may readily be had, and the circumstances are such that a reasonably prudent man would forward the goods by those means, then the damages recoverable would not exceed what he would suffer who does make use of such available means. In such cases, the damages would be the excess of the cost of such transportation over the lawful charges of the carrier wrongfully refusing to accept the goods, together with the damages resulting from the 1 delay in securing such transportation. 66 If the cost of transporting the goods by these other suitable means which the plaintiff either has adopted, or should have adopted, does not ex- os Pennsylvania R. Co. v. Titusville & P. P. R. Co., 71 Pa. 350; Galena & C. U. R. Co. v. Rae, 18 111. 488, 68 Am. Dec. 574; Harvey v. Connecticut & P. R. R. Co., 124 Mass. 421, 26 Am. Rep. 673; Bridgman v. The Emily, 18 Iowa, 509 ; Ward's Cent. & P. Lake Co. v. Elliins, 34 Mich. 439, 22 Am. Rep. 544; O'Conner v. Forster, 10 Watts (Pa.) 418; lnman v. St. Louis S. W. Ry. Co., 14 Tex. Civ. App. 39, 37 S. W. 37. 5« O'Conner v. Forster, 10 Watts (Pa.) 418; Ogden v. Marshall, 8 N. Y. 340, 59 Am. Dec. 497; Grund v. Pendergast, 58 Barb. (N. Y.) 216; Higginson v. Weld, 14 Gray (Mass.) 165; Crouch v. Railway Co., 11 Exch. (Eng.) 742. 510 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 ceed the charges which the carrier refusing might have exacted then only nominal damages can be recovered, unless the plaintiff suffered damage due to the delay in securing such other means, when such delay is not attributable to his fault. SAME— ACTIONS FOR TOTAL LOSS OR NONDELIVERY OF THE GOODS 160. The measure of damages in actions for total loss or nondelivery of the goods is the value of the goods at the time when and at the place where they should have been delivered, less any unpaid transportation charges. Obviously, the natural and probable consequences of a failure to deliver the goods at their destination is a loss to the owner, amount- ing to the value of the goods at that point, at the time when they should have been delivered, and such value is therefore the measure of damages. 57 The plaintiff, though, can secure the transportation, or the beneficial damages worked out on the basis of the loss to him because the goods have not been so transported, only on the pay- ment of the carrier's charges ; hence any unpaid charges of the car- rier must to that extent reduce the plaintiff's recovery. 58 Ordinari- ly the value of the goods means their market value unless that is unduly and irregularly inflated or depressed. 59 If the goods have no market price, then their value is usually held to be the value of the goods to the owner, taking into account such practical con- siderations as its cost and the expense of replacing it, but disregard- ing any pretium affectionis or fanciful and sentimental valuations. 60 " Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566, 28 L. Ed. 527; Louisville & N. R. Co. v. Kelsey, 89 Ala. 287, 7 South. 648; Plaff v. Pacific Exp. Co., 251 111. 243, 95 N. E. 1089; Marshall Medicine Co. v. Chi- cago & A. R. Co., 126 Mo. App. 455, 104 S. W. 478; Brown v. North Western R. R., 75 S. C. 20, 54 S. E. 829; O'Hanlan v. Ry. Co., 6 Best & S. (Eng.) 484; Rodocanachi v. Milburn, 18 Q. B. Div. (Eng.) 67. Cf. Magnin v. Dinsmore, 56 N. T. 168 ; Id., 62 N. T. 35, 20 Am. Rep. 442 ; Id., 70 N. T. 410, 26 Am. Rep. 608. See, also, Faulkner v. Hart, 82 N. T. 413, 37 Am. Rep. 574 ; Spring v. Haskell, 4 Allen (Mass.) 112; Sangamon & M. R. Co. v. Henry, 14 111. 156. 5 8 See cases cited in preceding note; Wilson v. St Louis & S. F. R. Co., 129 Mo. App. 347, 108 S. W. 612 ; Chesapeake & O. R. Co. v. F. W. Stock & Sons, 104 Va. 97, 51 S. E. 161. o» See cases cited in note 57; Plan v. Pacific Exp. Co., 251 111. 243, 95 N. E. 1089; MOBILE, J. & K. C. R. CO. v. ROBBINS COTTON CO., 94 Miss. 351, 48 South. 231, Dobie Cas. Bailments and Carriers, 286. on Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, 72 Atl 516, 21 L. R. A. (N. S.) 188; Pennsylvania R. Co. v. John Arda Co., 131 111. § 161) ACTIONS FOR INJURY TO THE GOODS 511 SAME— ACTIONS FOR INJURY TO THE GOODS 161. The measure of damages for injury to goods in transit is the difference between the value of the goods at the time and place of delivery in their damaged condition and what their value would have been had they been duly delivered in good order, less any unpaid transportation charges. When there is a total failure to deliver the goods, as we have just seen, the owner's loss is their real value when and where they should have been delivered. It is obvious that if the goods are delivered to the consignee, but in a damaged condition, the damage that would have been suffered from a total loss is diminished by an amount equal to the value of the damaged goods received, and the- difference between this value and what the value would have been had the goods been delivered uninjured is the measure of damages, after the payment of any unpaid charges for the transportation. 61 App. 426; International & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Mitchell t. Weir, 19 App. Div. 183, 45 N. Y. Supp. 1085; Cooney v. Pullman Palace- Car Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690. «i St. Louis Southwestern R. Co. v. Phcenix Cotton Oil Co., 88 Ark. 594, 115 S. W. 393; Reason v. Detroit, G. H. & M. Ry. Co., 150 Mich. 50, 113 N. W. 596; Ruddell v. Baltimore & O. R. Co., 152 111. App. 218; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. R. CO., 163 Mo. App. 426, 143 S. E. 839, Dobie Cas. Bailments and Carriers, 196 ; Notara v. Hender- son, L. R. 7 Q. B. (Eng.) 225 ; Chicago, B. & Q. R. Co. v. Hale, 83 111. 360, 25 Am. Rep. 403; Brown v. Cunard S. S. Co., 147 Mass. 58, 16 N. E. 717; Louisville & N. R. Co. v. Mason, 11 Lea (Tenn.) 116 ; Magdeburg General Ins. Co. v. Paulson (D. C.) 29 Fed. 530; The Mangalore (D. C.) 23 Fed. 463. See Morrison v. I. & V. Florio S. S. Co. (D. C.) 36 Fed. 569, 571; The Compta, 5 Sawy. 137, Fed. Cas. No. 3,070. Where property is injured in transportation through the negligence of the carrier, but is not entirely worthless, the own- er cannot refuse to accept it and sue for its market value, but may recover only for the injury. Missouri, K. & T. Ry. Co. of Texas v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; McGRATH BROS. v. CHARLESTON & W. C. RY. CO., 91 S. C. 552, 75 S. E. 44, 42 L. R. A. (N. S.) 782, Ann. Cas. 1914A, 64, Dobie Cas. Bailments and Carriers, 288. The rule that, on injury to goods in transportation, the value at the destination is the basis for determining the damages, the measure being the difference between the value of the goods at destination as injured and their value if delivered in good order, also applies where goods are taken for transportation to a point beyond the initial carrier's line. Southern Exp. Co. v. Jacobs, 109 Va. 27, 63 S. E. 17. Where, in an action against a carrier for injuries to a shipment of po- tatoes, it appeared that the shipper had sold the potatoes for delivery at a distant point, that the buyer at the point of delivery, because of the damaged condition of the shipment, refused to accept the potatoes, but there was 512 ACTIONS AGAINST CARRIERS OF GOODS (Ch. 15 Thus, butterine shipped to New Orleans was damaged in transit, through the carrier's negligence. On its arrival its market value in its damaged condition was 7 x /2 cents per pound, at which price it was sold. Had it been in good order, its market value at New Orleans would have been 15 or 16 cents a pound. It was held that plaintiff was entitled to the difference between these prices. 62 SAME— ACTIONS FOR DELAY IN TRANSPORTATION OR DELIVERY OF THE GOODS 162. The measure of damages for delay in the transportation or delivery of the goods is the difference between the value of the goods at the time when and the place where they should have been delivered and their value at the time and place of actual delivery, less any unpaid transportation charges. When, however, the value of the goods is not diminished by such delay, the measure of damages, after unpaid transpor- tation charges are deducted, is the value of the use of the goods during the period of delay. These rules indicate the normal measure of damages when the goods are delivered safely, but when, owing to the negligence of the carrier, the goods are not delivered at the proper time. Since the usual reason for shipping goods is to realize their value (after the payment of the carrier's charges) at the destination when they should have been delivered, the usual loss caused to the shipper by the delay is their value then less their value when they are ac- no evidence to show what the sound potatoes were sold for at the place of delivery, or that diligence had been used to secure their market price, the shipper's measure of damages was the difference between the total amount of the contract price of the whole shipment agreed to be paid by the buyer, less the freight charges paid by the shipper and the amount for which the sound potatoes, in the exercise of ordinary care to obtain on their delivery at the point of delivery the market price, were sold. Texarkana & Ft. S. R. Co. v. Shivel & Stewart (Tex. Civ. App.) 114 S. W. 196. In an action- against a carrier for damages to peaches consigned to Boston or Springfield, evidence of the price paid for the peaches in the orchard or point of shipment one or two weeks before they were sold at destination, was properly excluded as too remote. Henry J. Perkins Co. v. American Exp. Co., 199 Mass. 561, 85 N. E. 895. « a Western Mfg. Co. v. The Guiding Star (O. O.) 37 Fed. 641. § 162) DELAY IN TB ASPORTATION OB DELIVEBY OF GOODS 513 tually delivered. eB Interest is also allowed on such sum from the time the goods should have been delivered. 64 When there is no difference between the value of the goods when they were delivered and when they should have been delivered, then the loss is limited to the value of the use of the goods between the two dates; that is, during the period of the delay. Thus, in an action against the carrier for delay in delivering machinery (the value of which was not affected by the delay) the damages were the value of the use of the machinery during the period of its delay, or the sum for which the plaintiff might for this period have hired similar machinery. 68 os Gulf, 0. & S. F. Ry. Co. v. McCarty, 82 Tex. 608, 18 S. W. 716 ; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Western & A. R. Co. v. Summerour, 139 Ga. 545, 77 S. B. 802 ; Newport News & Ml V. R. Co. v. Mercer, 96 Ky. 475, 29 S. W. 301 ; Atlanta & W. P. R. Co. t. Texas Grate Co., 81 Ga. 602, 9 S. E. 600 ; McGRATH BROS. v. CHARLES- TON & W. C. RY. CO., 91 S. C. 552, 75 S. E. 44, 42 L. R. A. (N. S.) 782, Ann. Cas. 1914A, 64, Dobie Cas. Bailments and Carriers, 288; Wilson v. Ry. Co., 9 G. B. N. S. (Eng.) 632. See, also, Cutting v. Grand Trunk Ry. Co., 13 Allen (Mass.) 381 ; Weston v. Grand Trunk Ry» Co., 54 Me. 376, 92 Am. Dee. 552 ; Sherman v. Hudson River R. Co., 64 N. Y. 254; Scott v. Boston & N. O. S. S. Co., 106 Mass. 468; Collard v. Railway Co., 7 Hurl. & N. (Eng.) 79; Ayres v. Chicago & N. W. Ry. Co., 75 Wis. 215, 43 N. W. 1122; Ingledew v. Northern R., 7 Gray (Mass.) 86. Money spent looking for goods may be recovered. Hales v. Railway Co., 4 Best & S. (Eng.) 66. Cf. Woodger v. Railway Co., L. R. 2 C. B. (Eng.) 318. Where goods have been resold and the carrier notified of the price, such price is to be taken as their true value, Deming v. Grand Trunk R. Co., 48 N. H. 455, 470, 2 Am. Rep. 267 ; but where the carrier is not notified of such price, the market price is considered their true value, Home v. Midland Ry. Co., L. R. 8 C. P. (Eng.) 131. Cf. Illinois Cent. R. Co. v. Cobb, 64 111. 128, where shipper was allowed to recover on basis of contract price. Where goods have been sold "to arrive," and the market value at the time when they should have arrived was greater than the contract price, recovery has been allowed on the basis of market value. Rodocanachi v. Milburn, L. R. 18 Q. B. Div. (Eng.) 67. Incidental expenses proximately flowing from the negligent delay may also be recovered. Murrell v. Pacific Exp. Co., 54 Ark. 22, 14 S. W. 1098, 26 Am. St. Rep. 17; Deming, v. Grand Trunk R. Co., 48 N. H. 455, 2 Am. Rep. 267. «* New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444, 37 L. Ed. 292 ; Houston & T. C. Ry. Co. v. Jackson, 62 Tex. 209. « Priestly v. Northern Indiana & C. R. Co., 26 111. 206, 79 Am. Dec. 369. So, in forwarding money, the measure of damages was held to be interest on the money during the period of delay. United States Exp. Co. v. Haines, 67 111. 137. Dob.Bailm. — 33 514 ACTIONS AGAINST CARRIERS OF GOODS (Ch.15 SAME— SPECIAL DAMAGES 163. Special damages arising from the carrier's default are ordina- rily not allowed unless the peculiar circumstances out of which these damages arise are communicated to, or known by, the carrier, and unless these damages are also the natural and probable consequences of the carrier's breach of duty. In all the rules heretofore stated, with reference to the measure of damages, the damages allowed have been for losses directly flowing from the carrier's breach of duty. In addition, these losses are such as would normally arise, without regard to any distinctive details surrounding any individual shipment. It frequently hap- pens, however, that by virtue of these peculiar facts in a particular shipment the loss suffered is far greater than that granted under the general rules already stated. It then becomes important to deter- mine whether such unique or .special damages are recoverable, or whether the shipper is limited to a recovery under the general rule appropriate to all cases of that kind. The accepted doctrine is that such unique and special damages cannot be recovered unless the peculiar consequences of a default (pr circumstances from which such consequences should properly be inferred) are communicated to, or known by, the carrier at the time the contract of carriage was made. 66 Only such losses can ee International & G. N. K. Co. v. Hatchell, 22 Tex. Civ. App. 498, 55 S. W. 186; Hamilton v. Western N. C. R. Co., 96 N. C. 398, 3 S. E. 164; Norfolk & W. Ry. Co. v. Reeves, 97 Va. 284, 33 S. B. 606 ; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644 ; Missouri, K. & T. R. Co. of Texas v. Mc- Lean, 55 Tex. Civ. App. 130, 118 S. W. 161. The owner of machinery lost in transportation could not recover from the carrier special damages for time lost and expense incurred in making successive calls for the freight at the carrier's office without proof of notice to the carrier's agent of the value of the time or attendant expense or the distance that would have to be traveled in making such calls. Pacific Exp. Co. v. Jones, 52 Tex. Civ. App. 367, 113 S. W. 952. Where, on shipment of fertilizer, there was no notice to the car- rier of any special use to which it was to be applied or of such scarcity of . fertilizer as to prevent another purchase of a like amount by consignee, con- signee was not entitled to special damages for failure to deliver the fertilizer. MATHESON v. SOUTHERN RY. CO., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290. Where a carrier contracting for the transpor- tation of a musical instrument did not have notice of the shipper's intention to use the instrument for any particular purpose, the measure of damages for injuries to the instrument during transportation was the difference in its value at the time and in the condition in which it arrived at the point of destination, and its value at the time and in the condition in which it § 163) SPECIAL DAMAGES 515 be recovered as were reasonably contemplated by both parties, at the time the contract was made, as likely to arise from the carrier's breach, and not losses due to circumstances which were then wholly unknown to the carrier. Damages, too, are awarded only for the reasonable and proximate, and not 'for the speculative and remote, consequences of the breach of the carrier's duty. 07 Thus, when the carrier delayed the delivery of a shaft for a flour mill, it was held that, when the special circumstances were not communicated to the carrier, there could be no recovery for the loss of profits due to the fact that the mill was idle during such delay. 68 Again, in the absence of special knowledge by the carrier, it was held, where there was a delay in delivering a package con- taining samples, that there could be no recovery of the shipper's hotel expenses during such period of delay, when he was waiting for the package. 69 But when the carrier agreed to deliver the goods at their destination at a specified time, knowing that, unless the should have arrived there. Missouri, K. & T. Ry. Co. v. Harris (Tex. Civ. App.) 138 S. W. 1085. A carrier, informed by a shipper that tents were in- tended to be used during severe weather as a stable for the protection of his horses, etc., had sufficient notice to render it liable for the expenses and dam- ages which might result by reason of its failure to deliver them within a rea- sonable time. Pecos & N. T. Ey. Co. v. Maxwell (Tex. Civ. App.) 156 S. W. 548. « Gulf, C. & S. P. Ry. Co. v. Hodge, 10 Tex. Civ. App. 543, 30 S. W. 829 ; Harvey v. Connecticut & P. R. R. Co., 124 Mass. 421, 26 Am. Rep. 673 ; Vicks- burg & M. R. Co. v. "Ragsdale, 46 Miss. 458. See, on the recovery of special damages in general, the great leading case of Hadley v. Baxendale, 9 Exch. (Eng.) 341. Where a carrier lost goods in its possession for transportation to plaintiff intended for resale in the course of plaintiff's business, and no freight had ever been paid, the carrier was only liable for the fair market value of the goods at the time and place of delivery, and not for profits which plaintiff might have made had he resold the goods in the ordinary course of his business. Cincinnati, N. O. & T. P. R. Co. v. Hansford & Son, 125 Ky. 37, 100 S. W. 251, 30 Ky. Law Rep. 1105. Where a shipper of household goods notifies the agent that she needs the goods immediately, there is not a suf- ficient notice of special damages to authorize a recovery for a cold contracted by the shipper, caused by the lack of the household goods shipped. Alabama & V. Ry. Co. v. McKenna (Miss.) 61 South. 823. es Hadley v. Baxendale, 9 Exch. (Eng.) 341 (leading case). See, also, the recent case of Harper Furniture Co. v. Southern Exp. Co., 148 N. C. 87, 62 S. E. 145, 30 L. R. A. (N. S.) 483, 128 Am. St. Rep. 588, in which the facts (delay by carrier in transporting an engine shaft for a furniture factory) were strikingly similar in many respects to those of Hadley v. Baxendale. In the Harper Case a divided court (three judges to two) held that special dam- ages were proper and that the facts and circumstances surrounding the ship- ment were sufficient to give notice to the carrier that these damages might reasonably be expected as the result of the delay. esWoodger v. Ry. Co., L. B, 2 C. P. (Eng.) 318. 516 ACTIONS AGAINST CARRIERS OP GOODS (Ch. 15 goods were then delivered, the owner would lose the profits of a splendid sale he had made, then the carrier for its negligent delay was held liable for the difference between the price stipulated in the plaintiff's advantageous contract of sale and the market value of the goods at the time of their actual delivery. 70 to Deming v. Grand Trunk R. Co., 48 N. H. 455, 2 Am. Rep. 267. PART THREE CARRIERS OF PASSENGERS CHAPTER XVI THE NATURE OF THE RELATION 164. Who are Carriers of Passengers. 165. Sleeping Car Companies. 166. Who are Passengers. WHO ARE CARRIERS OF PASSENGERS 164. Carriers of passengers are carriers engaged in the transporta- tion of human beings. Like carriers of goods they are divided into: (a) Common carriers, who hold themselves out to carry all prop- er persons who apply. (b) Private carriers, who carry only on special contracts in in- dividual cases. In General Practically, the passenger carrier differs from the carrier of goods as to what is carried. From this difference, however, flow neces- sarily legal consequences that must be in many respects utterly dissimilar. And yet there are still so many analogies between the two that the study of either throws light on the other, which is in itself sufficient justification for treating the two in a single book. The carrier of passengers is engaged in the transportation, not of goods, but of human beings. Human beings have reason, voli- tion, and intelligence. They can move about and incur danger or avoid it when it is impending. It is clear, too, that the carrier of passengers as such is in no sense a bailee. The control of the carrier over the passenger is not, and cannot be, as complete as the measure of control which the carrier can exercise over the goods. Even in the carrier's regulations, the human aspect is predominant as a limitation on what regulations are reasonable. Though from an economic standpoint the carriage of goods is of relatively more importance than the transportation of passen- gers, yet the wonderful development of passenger traffic in modern (517) 518 THE NATURE OF THE RELATION (Ch. 16 times is such that the subject merits the most careful considera- tion. The value set by. the state on the lives and safety of its citizens has lent, too, an element of very grave responsibility (to which that of the carrier of goods is in no way comparable) to the undertaking of the carrier of passengers. Common and Private Carriers of Passengers The same considerations that distinguish the common from the private carrier of goods apply to set apart the common and the pri- vate carrier of passengers. As these considerations have already been treated at some length, 1 no extended comment will be required here. There, as here, the holding out is the distinctive feature. The common carrier of passengers holds himself out to carry all proper persons who apply. 2 The private carrier makes no such profession, and engages in the transportation of passengers only by virtue of special contract made in each individual case, 3 into lAnte, §§106-107. 2 Mureh v. Concord R. Corp., 29 N. H. 9, 61 Am. Dec. 631; Davis v. But- ton, 78 Cal. 247, 18 Pac. 133, 20 Pac. 545; Thompson Houston Electric Co. v. Simon, 20 Or. 60, 25 Pac. 147, 10 L. R. A. 251, 23 Am. St Rep. 86; Cen- tral of Georgia Ry. Co. v. Lippman, 110 Ga. 665, 36 S. E. 202, 50 L. R. A. 673 ; Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827. Among the important common carriers of pas- sengers are : The proprietors of omnibuses, Brien v. Bennett, 8 Car. & P. (Eng.) 724; or stage coaches, Bretherton v. Wood, 3 Brod. & B. (Eng.) 54; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Peixotti v. McLaughlin, 1 Strob. (S. C.) 468, 47 Am. Dec. 563; Lovett v. Hobbs, 2 Show. (Eng.) 127; railroad companies, Hanley v. Harlem R. Co., 1 Edm. Sel. Cas. (N. Y.) 359; Eaton v. Boston & L. R. Co., 11 Allen (Mass.) 500, 87 Am. Dec. 730; McElroy v. Nashua & L. R. Corp., 4 Cush. (Mass.) 400, 50 Am. Dec. 794; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Union Pac. Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475; Nashville & C. R. Co. v. Messino, 1 Snecd (Tenn.) 220; Caldwell v. Richmond & D. R. Co., 89 Ga. 550, 15 S. E. 678; street car companies, Holly v. Atlanta St R. R., 61 Ga. 215, 34 Am. Rep. 97; Chicago City Ry. Co. v. Mumford, 97 111. 560 ; Isaacs v. Third Ave. R. Co., 47 N. Y. 122, 7 Am. Rep. 418; Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 55 N. W. 270, 20 L. R. A. 316, 38 Am. St. Rep. 753; Jackson v. Gland Ave. Ry. Co., 118 Mo. 199, 24 S. W. 192; steamboat companies, White v. McDonough, 3 Sawy. 311, Fed. Cas. No. 17,552; Benett v. Steamboat Co., 6 C. B. (Eng.) 775, 16 C. B. 29; Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258; ferrymen, Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312, 87 Am. Dec. 717; Slimmer v. Merry, 23 Iowa, 90. 8 "A wagoner who occasionally carries a passenger upon his wagons, as a matter of special accommodation and agreement, does not thereby become a common carrier of passengers. He only becomes such when the carrying of passengers becomes an habitual business." Murch v. Concord R. Corp., 2S N. H. 9, 61 Am. Dec. 631. See, also, cases cited in preceding note. See At- lantic City v. Dehn, 69 N. J. Law, 233, 54 Atl. 220. § 164) WHO ARE CARRIERS OF PASSENGERS 519 which contract the private passenger carrier can enter or not, as he chooses. He can refuse, either for a bad reason or no reason at all, to transport individuals without incurring any liability for such refusal. As the passenger traffic of the civilized world is prac- tically controlled by common carriers, the private carrier will be dismissed with a paragraph, and only the common carrier of pas- sengers will be considered. The private passenger carrier is in no sense affected with a pub- lic interest, and his rights and duties are solely those of one en- gaged in a business in which the public, as such, has no interest or concern. He exercises no extraordinary rights, and incurs no extraordinary responsibility. He carries by special contract, and this usually is the measure of his rights and duties. Pursuing no public calling, he can, without contravening public policy, make contracts in a wider range than is permitted to the common carrier of passengers. In the absence of a contract provision on that point, the private carrier owes to his passenger only the duty of exercis- ing due or ordinary care. Of course, one may be a common carrier of goods and a private carrier of passengers, and vice versa. Thus one holding himself out to carry goods for all who apply (but without such holding out as to passengers) may occasionally take a passenger in special in- stances. As to the passenger, the carrier in such cases is only a private carrier. Likewise one whose public profession is limited to the transportation of passengers may in an individual case un- dertake to carry goods (not the passenger's baggage) for hire, and yet the carrier here is merely a private carrier of goods. The most important common carriers of modern times are rail- way and steamboat companies, street railways (whether surface, elevated, or underground), and the proprietors of omnibuses, hacks, and taxicabs.* The cases are not entirely clear as to the propri- etors of passenger elevators. Though a sound public policy seems to require the same degree of care as to those carried, 6 it is believed to be the better view not to hold these as being (at least for all purposes) common carriers of passengers. * See cases cited in note 2. = Fox v. Philadelphia, 208 Pa. 127, 57 Atl. 356, 65 L. K. A. 214; Chicago Exch. Bldg. Co. v. Nelson, 197 111. 334, 64 N. E. 369; Mitchell v. Marker, 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33; Goldsmith v. Holland Building Co., 182 Mo. 597, 81 S. W. 1112 ; Perrault v. Emporium Dept. Store Co., 71 Wash. 523, 128 Pac. 1049. Many cases decline to impose the high degree of care required of common carriers of passengers. Seaver v. Bradley, 179 Mass. 329, 60 N. E. 795, 88 Am. St. Rep. 384 ; Phillips Co. v. Pruitt, 82 S. W, 628, 26 Ky. Law Rep. 831; Hall v. Murdock, 114 Mich. 233, 72 N. W. 150. 520 THE NATURE OP THE RELATION (Ch. 16 SLEEPING CAR COMPANIES 165. Sleeping carjjqrnpanies are not carriers. They pursue a pub- lic calling, howeverT arid Incur "the attendant liabilities of such callings. Theyjir e^also liab le for their nepliprpnri. ; n protecting the person of the passenger or -his4iancT£ag|age properly brought into the car. Not a Carrier The sleeping car company is not a carrier, either common or pri- vate." It carries no one. The transportation, not only of sleeping car passengers, but of the sleeping car itself, is done by the rail- way company, which controls the operation and management of the train. It, and not the sleeping car company, contracts for the carriage, issues the ticket to the passenger, and receives the com- pensation therefor. The railway company alone should therefore assume the responsibilities of a carrier. Neither, as we have al- ready seen, is the sleeping car company an innkeeper.' The ob- viously close connection, both legal and practical, between the pas- senger carrier and the sleeping car company, however, is ample rea- son, both on the score of convenience and of clearness, for treating sleeping car companies in this connection. The rules applicable to sleeping car companies apply mutatis mutandis to parlor car companies. In the Interstate Commerce Act 8 it is expressly pro- vided that the term "common carrier" shall include sleeping car companies. Liability for Goods of Passenger As the sleeping car company is not a common carrier, it is not liable as an insurer for the goods of the passenger brought within its car. 9 Its duty in this respect is limited to the exercise of ordi- « Dawley v. Wagner Palace Car Co., 169 Mass. 315, 47 N. E. 1024 ; PULL- MAN PALACE CAR CO. v. GAVIN, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St Rep. 902, Dobie Cas. Bailments and Carriers, 294 ; Pullman's Pal- ace Car Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 44 L. R. A. 790, 71 Am. St. Rep. 293; Pullman Palace Car Co. v. Adams, 120 Ala. 581, 24 South. 921, 45 L. R. A. 767, 74 Am. St Rep. 53. See, also, Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53; Calhoun v. Pullman Palace Car Co. (C. C.) 149 Fed. 546. i Ante, p. 247. s Section 1. » Voss v. Wagner Palace-Car Co., 16 Ind. App. 271, 43 N. E. 20, 44 N. E. 1010; Pullman Palace Car Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771; Whicher v. Boston & A. R. Co., 176 Mass. 275, 57 N. E. 601, 79 Am. St. Rep. 314; Pullman Palace Oar Co. v. Freudensteln, 3 Colo. App. 540, 34 Pac. 578; § 165) SLEEPING CAR COMPANIES 521 nary or reasonable care, and it is liable only for negligence, which is the breach of that duty. 10 What is reasonable care is here, as elsewhere, purely a relative term and is ordinarily a question for the jury. 11 In solving this question, the jury takes into consideration all the surrounding circumstances, and great stress is laid on the inability of the passenger himself to guard his property. 12 He has no room which he can lock, and while he is asleep he must rely on the efforts of the company's servants to protect his goods. The com- pany must therefore provide servants, sufficient in number and capability, and these, during the night, must maintain a reasonably continuous and effective watch over the car and the persons and things within it. 13 The mere loss of goods from a sleeping car does not, it is usually held, fix liability on the company. 1 * There must be some affirma- LEWIS v. NEW YORK SLEEPING CAR CO., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295; Dings v. Pullman Co., 171 Mo. App. 643, 154 S. W, 446. io Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31; Pullman Palace Car Co. v. Martin, 92 Ga. 161, 18 S. E. 364; Dawley v. Wagner Palace Car Co., 169 Mass. 315, 47 N. E. 1024; Pullman Co. v. Green, 128 Ga. 142, 57 N. E. 233, 119 Am. St. Rep. 368, 10 Ann. Cas. 893; Godfrey v. Pullman Co., 87 S. C. 361, 69 S. E. 666, Ann. Cas. 1912B, 971; Springer v. Pullman Co., 234 Pa. 172, 83 Atl. 98; LEWIS v. NEW YORK SLEEPING CAR CO., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295. A passenger on a sleeping car may re- cover damages for money and personal effects stolen from him through the negligence of the sleeping car company in failing to keep such constant watch over passengers asleep as will protect them from robbery or unwarranted intrusion. Hill v. Pullman Co. (C. C.) 188 Fed. 497. It is the duty of a sleeping car company to exercise reasonable care to guard the personal ef- fects of the passengers from theft, and if through want of such care they are lost, the company is liable therefor. Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. E. 933, 9 L. R. A. (N. S.) 407. ii Hatch v. Pullman Sleeping Car Co. (Tex. Civ. App.) 84 R. W. 246; God- frey v. Pullman Co., 87 S. C. 361, 69 S. E. 666, Ann. Cas. 1912B, 971. 12 Pullman Palace Car Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 44 L. R. A. 790, 71 Am. St. Rep. 293; Pullman Palace Car Co. v. Hunter, 107 Ky. 519, 54 S. W. 845, 47 L. R. A. 286; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281. is Carpenter v. New York, N. H. & H. R. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644; LEWIS v. NEW YORK SLEEPING CAR CO., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295; Scaling v. Pullman Palace Car Co., 24 Mo. App. 29. I* Pullman Palace Car Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771 ; Carpenter v. New York, N. H. & H. R. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644; Cohen v. New York Cent. & H. R. R. Co., 121 App Div. 5, 105 N. Y. Supp. 483 ; Godfrey v. Pullman Co., 87 S. C. 361, 69 S. E. 666, Ann. Cas. 1912B, 971. But see Kates v. Pullman's Palace Car Co., 522 THE NATURE OF THE RELATION (Ch. 16 tive showing ot negligence, but this may easily be inferred from the facts and circumstances surrounding the loss. 15 The contribu- tory negligence of the passenger, as where he recklessly leaves valuable articles in an exposed position, is a good defense to the company's liability. 16 The company is liable when the goods are stolen by its servants. 17 The duty of the company continues while the passenger is reasonably absent from his berth, as when he goes to the dining car or to the toilet or wash room. 18 The liability of the sleeping car company does not extend to all objects taken into the car, but is limited to the proper hand bag- gage of the passenger. 19 This includes those articles which the passenger would reasonably keep with him for his comfort and convenience during the trip. 20 The social position, sex, wealth, 95 Ga. 810, 23 S. E. 186; Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. B. 933, 9 L. R. A. (N. S.) 407; Dings v. Pullman Co., 171 Mo. App. 643, 154 S. W. 446. is Hill v. Pullman Co. (C. C.) 188 Fed. 497; Springer v. Pullman Co., 234 Pa. 172, 83 Atl. 98 ; Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690. If a porter neglected to watch a bag which he received from a passenger on her retiring, and permitted its contents to be stolen, or himself stole it, the sleeping car company would be liable therefor. Sher- man v. Pullman Co., 79 Misc. Rep. 52, 139 N. Y. S. 51. is Kates v. Pullman's Palace Car Co., 95 Ga. 810, 23 S. E. 186; Pullman Palace Car Co. v. Matthews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 873; Pullman Palace Car Co. v. Adams, 120 Ala. 581, 24 South. 921, 45 L. R. A. 767, 74 Am. St. Rep. 53. " Pullman's Palace Car Co. v. Martin, 95 Ga. 314, 22 S. E. 700, 29 L. R. A 498; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281; PULLMAN PALACE CAR CO. v. GAVIN, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902, Dobie Cas. Bailments and Carriers, 294. Here the contributory negligence of the passenger is no defense. Morrow v. Pull- man Palace Car Co., 98 Mo. App. 351, 73 S. W. 281 ; Pullman Co. v. Vander- hoeven, 48 Tex. Civ. App. 414, 107 S. W. 147. is Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281. i» Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 South. 712, 53 L R. A. 690; Barrott v. Pullman's Palace Car Co. (C. C.) 51 Fed. 796; Kates v. Pullman's Palace Car Co., 95 Ga. 810, 23 S. E. 186; Blum v. Southern Pull- man Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574. 20 Pullman's Palace Car Co. v. Martin, 95 Ga. 314, 22 S. E. 700, 29 L. R. A. 498; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574. The personal effects which a passenger may carry on his jour- ney so as to render a sleeping car company liable for their loss through its negligence may include jewelry, and if a piece of jewelry becomes in- jured during his travels so that he caDnot use it in the ordinary way, it does not lose its character as an article which may properly be carried on the person, so as to relieve the carrier of the duty of reasonable diligence in pro- tecting the passenger in its possession. Pullman Co. v. Schaffner, 126 Ga, 609, 55 S. E. 933, 9 L. R. A. (N. S.) 407. While a passenger is entitled to carry with her and retain In her immediate custody as baggage a reasonable § 165) SLEEPING CAR COMPANIES 523 etc., of the passenger, and the length of the occupancy of the car, are all important in this connection. Clothing, toilet articles, and a reasonable sum of money most clearly would be included. 21 Though the meaning of the term in the case of the sleeping car company is necessarily much more restricted, further light on the question will be thrown by the subsequent discussion of the mean- ing of baggage as to carriers of passengers. 22 Liability for Safety and Comfort of Passenger It is the duty of the sleeping car company to use at least rea- sonable care to make proper provision for the safety and comfort of the passenger. 23 Thus, as to the former, the company must furnish suitable means for entering and leaving the berth. 2 * It must supply reasonable toilet facilities, 26 and see that the car is properly heated and ventilated. 28 It must also awake the sleeping passenger a reasonable time before he is to arrive at his destina- tion. 27 The mechanical facilities must be such that they afford reason- able protection and are reasonably safe, or the sleeping car com- pany will be liable. 28 Thus, where the falling of a berth injured a passenger, the company was held liable. 29 For negligent acts of quantity of personal effects for her use, comfort, and adornment during the journey, according to her station in life, a carrier or sleeping-car company owes her no duty with respect to valuable jewelry carried by her in a hand bag for transportation merely, without any intention or purpose of using it during the journey; the jewelry under such circumstances not being re- garded as baggage. Bacon v. Pullman Co., 159 Fed. 1, 89 C. C. A. 1, 16 L. E. A. (N. S.) 578, 14 Ann. Oas. 516. si See cases cited in two preceding notes. 22 See post, chapter XX. 23 NBVIN v. PULLMAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297; Hughes v. Pullman's Palace Car Co. (C. C.) 74 Fed. 499; Houston, E. & W. T. Ry. Co. v. Perkins, 21 Tex. Civ. App. 508, 52 S. W. 124; Piper v. New York Cent. & H. R. R. Co., 76 Hun, 44, 27 N. T. Supp. 593 ; St. Louis, I. M. & S. R. Co. v. Hatch, 116 Tenn. 580, 94 S. W. 671. 2* Pullman's Palace Car Co. v. Fielding, 62 111. App. 577. 25 NEVIN v. PULLMAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297. 2e Hughes v. Pullman's Palace Car Co. (C. C.) 74 Fed. 499; Edmundson v. Pullman Palace Car Co., 92 Fed. 824, 34 C. C. A. 382. 27Airey v. Pullman Palace Car Co., 50 La. Ann. 648, 23 South. 512; Mc- Keon v. Chicago, M. & St. P. Ry. Co., 94 Wis. 477, 69 N. W. 175, 35 L. R. A. 252, 59 Am. St. Rep. 910. 28 Pullman's Palace Car Co. v. Fielding, 62 111. App. 577 ; NEVIN v. PULL- MAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297. 2» Jenkins v. Louisville & N. R. Co., 104 Ky. 673, 47 S. W. 761. 524 THE NATURE OF THE RELATION (Ch. 16 its servants, too, exposing the passenger to injury, the company is liable, as where obstructions were left in a dimly lighted aisle, over which a passenger fell and was injured. 30 The passenger can claim also reasonable protection from assault, annoyance, and insult at the hands of fellow passengers or tres- passers. If this could reasonably have been prevented by the serv- ants of the sleeping car company, it is liable. 81 If, however, the assault was, owing to its suddenness and unforeseen character, not preventable by reasonable action on the part of servants of the company, then it is not responsible. 32 The company is liable when the assault is an unjustified one committed by the servant himself, as where the porter made an indecent attack on a woman, who was a passenger in the car. 88 For wrongful ejection from the car, or even from a berth, by its agents, the sleeping car company is in like manner liable. 34 Public Employment Though the sleeping car company is neither a common carrier nor an innkeeper, its employment is none the less a public one. It therefore must serve all members of the traveling public according to the profession which it makes. 86 As to the class which it will so Levien v. Webb, 30 Misc. Rep. 196, 61 N. Y. Supp. 1113. si Houston, B. & W. T. Ry. Co. v. Perkins, 21 Tex. Civ. App. 508, 52 S. W. 124 ; Hill v. Pullman Co. (C. C.) 188 Fed. 497. The failure of the servants of a sleeping car company to keep watch while a passenger was asleep in her berth is a reckless disregard of her safety, and where the passenger was assaulted and robbed the company is liable for punitive and compensatory damages. Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. B. 841, Ann. Cas. 1913A, 894. 82 Connell's Ex'rs v. Chesapeake & O. Ry. Co., 93 Va. 44, 24 S. E. 467, 32 L. R. A. 792, 57 Am. St. Rep. 786. 83 Campbell v. Pullman Palace Car Co. (C. C.) 42 Fed. 484; Pullman Pal- ace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53. See, also, Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53, holding the sleeping car company liable when the porter assaulted a man passenger wno had called the porter and asked for food. a* Mann Boudoir Car Co. v. Dupre, 54 Fed. 646, 4 C. C. A. 540, 21 L. R. A. 289 ; NBVIN v. PULLMAN PALACE CAR CO., 106 IU. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297; Pullman Co. v. Custer (Tex. Civ. App.) 140 S. W. 847. A sleeping car company is liable for expulsion of a passenger, due to selling him a sleeping car ticket over a route between two points other tban that called for by his railroad ticket, where the ticket was in the possession of the sleeping car company's agent and subject to in- spection. Nashville, C. & St. L. Ry. Co. v. Price, 125 Tenn. 646, 148 S. W. 219. so NEVIN v. PULLMAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297; Lawrence v. Pullman's Palace Car Co., 144 Mass. 1, 10 N. B. 723, 59 Am. Rep. 58. Sleeping car service of car- § 165) SLEEPING GAE COMPANIES 525 serve, the company may make reasonable regulations, both as to berth coupons and railroad tickets, and it may limit its facilities to those holding first-class tickets. 88 But, within the class, no arbi- trary or unreasonable distinctions will be permitted. If the com- pany has a vacant berth, this must be furnished to one properly applying for it. 87 Liability of Railroad Company The passenger in the sleeping car becomes none the less a pas- senger of the railroad company and loses none of his rights as such passenger. 38 The sleeping car is made by the carrier a part of its train, so that for what goes on in the sleeping car, the carrier also is responsible and thus a cumulative remedy is afforded to the passenger. 39 The carrier cannot escape liability by contracting with another party to supply facilities for transporting the passen- ger. 40 Hence the carrier is liable practically as if it owned and operated the sleeping car. The employes of the sleeping car com- pany are for the time the servants of the carrier, for whose acts the carrier, too, may be compelled to answer. Hence, in the case of negligence or willful wrong of the porter, resulting in injury to the person of the passenger, or loss of his proper baggage, or even riers is a public service, on which the state may impose reasonable regula- tions for the common good, subject to the constitutional limitations for pro- tection of rights to life, liberty, and property. State v. Chicago, M. & St. P. E. Co., 152 Wis. 341, 140 N. W, 70. se Lemon v. Pullman Palace Car Co. (C. C.) 52 Fed. 262; Lawrence v. Pull- man's Palace Car Co., 144 Mass. 1, 10 N. E. 723, 59 Am. Rep^ 58. 37 Searles v. Mann Boudoir Car Co. (C. C.) 45 Fed. 330; NEVIN v. PULL- MAN PALACE CAR CO., 106 111. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297. as Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Jones v. St. Louis S. W. Ry. Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St Rep. 514 ; Cleveland, C, C. & I. R. Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433. s» Kinsley v. Lake Shore & M. S. R. Co., 125 Mass. 54, 28 Am. Rep. 200 ; Robinson v. Chicago & A. R. Co., 135 Mich. 254, 97 N. W. 689; Missouri, 'K. & T. R. Co. v. Maxwell (Tex. Civ. App.) 130 S. W. 722. Agents and servants of a sleeping car company on its cars, which are attached to and become part of the system of transportation used by a railroad company, are agents of the railroad company; and if a passenger on such a car is injured by the neg- ligence of servants of the sleeping car company, the railroad company is liable in the same way and to the same extent as if the injury had occurred on its ordinary passenger coaches. Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619, 31 L. R. A. (N. S.) 689. 40 Pullman Co. v. Norton (Tex. Civ. App.) 91 S. W. 841; Kinsley v. Lake Shore & M. S. R. Co., 125 Mass. 54, 28 Am. Rep. 200. \ 526 THE NATURE OF THE RELATION (Ch. 16 when the injury is due to insufficient mechanical facilities, as in the case of the falling of the berth, the passenger may, at his option, sue either the sleeping car company or the carrier. 41 WHO ARE PASSENGERS 166. All persons who ride in the vehicles of the carrier, with the latter's consent, either express or implied, are passengers, except those who are in the carrier's employment. In General While the generally accepted definitions of a passenger vary somewhat, they usually contain two essential elements: (1) A person presenting himself for immediate transportation; and (2) the acceptance of the person in that capacity by the carrier. 42 The discussion of these two elements is left for subsequent considera- tion under the subject of the commencement of the relation. 43 In the present section, the only question to be considered is this: What persons riding on the conveyances of the carrier are to be regarded as passengers? Later sections will treat of the time of the com- mencement and termination of the relation of passenger and car- rier. 44 As the duty owed by the carrier to its passengers (that of exercising the highest degree of practicable care) is much greater than the duty owed to any other class of persons, the importance of the question becames obvious. In general, it may be said of persons riding on the carrier's con- veyances that they alone are passengers who fulfill two conditions, "Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Louisville & N. R. Co. v. Ray, 101 Tenn. 1, 46 S. W. 554 ; Dwindle v. New York Cent. & H. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; (assault by porter); Robinson v. Chicago & A. R. Co., 135 Mich. 254, 97 N. W. 689; Cleveland, C, C. & I. R. Co. v. Walrath, 38 Ohio St 461, 43 Am. Rep. 433 (falling berth). A carrier must exercise the utmost care for the safety of a passenger on a Pullman car, and where the passenger, while asleep in her berth, was assaulted and robbed, the carrier and the sleeping car company were both liable for a negligent failure to protect the passenger. Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. E. 841, Ann. Cas. 1913A, 894. 42 Fetter on Passenger Carriers, § 210; 2 Hutch. Carr. § 997; Bricker v. Philadelphia & R. R. Co., 132 Pa. 1, 18 Atl. 983, 19 Am. St. Rep. 585; Wool- sey v. Chicago, B. & Q. R. Co., 39 Neb. 798, 58 N. W. 444, 25 L. R. A. 79, Fitzgibbon v. Chicago & N. W. Ry. Co., 108 Iowa, 614, 79 N. W. 477 ; Exton v. Central R. Co., 63 N. J. Law, 356, 46 Atl. 1099, 56 L. R. A. 508; Barth v. Kansas City El. Co., 142 Mo. 535, 44 S. W. 778; Louisville & E. R. Co. v. Mc- Nally, 105 S. W. 124, 31 Ky. Law Rep. 1357; Schuyler v. Southern Pac. Co.,. 37 Utah, 612, 109 Pac. 1025. « Post, § 167. * 4 Post, chapter XVII. § 166) WHO ARE PASSENGERS 527 the one positive and the other purely negative. Positively, they must ride with the carrier's consent, either express or implied; negatively, they must not be in the employment of the carrier. The mere transportation under these conditions makes one a passen- ger. 45 In the overwhelming majority of cases, the person riding has no connection officially with the carrier, duly presents himself with no other end in view than the mere transportation, is accepted by the carrier, and the proper fare is paid. These cases, of course, are so clear as to present no difficulty. Therefore only the somewhat exceptional or unusual cases call for any extended treatment. Those Engaged in Business, but Not Employed by the Carrier In addition to the employes of the carrier, there are a number of persons on the carrier's conveyances engaged in business thereon. To these, or to some of them, the term of quasi passengers is some- times applied ; but the distinction is of little practical importance, as it is held that in either case the carrier owes to them the same duty that is owed to a passenger. The fact that these seek, not transportation, but an opportunity to pursue their calling, does not affect the carrier's duty; nor does it matter, in this connection, whether they pay fare themselves or whether this is paid by those in whose employ they are. Thus the following have been held to be passengers according to the principles just stated : Postal clerks carried under contract between the carrier and the federal government; 48 express mes- 46 Woolsey v. Chicago, B. & Q. R. Co., 39 Neb. 798, 58 N. W. 444, 25 L. R. A. 79; Pennsylvania R. Co. v. Price, 96 Pa. 256; Gillshannon v. Stony Brook R. Corp., 10 Cush. (Mass.) 228; Ryan v. Cumberland Val. R. Co., 23 Pa. 384; O'Donnell v. Allegheny Valley R. Co., 59 Pa. 239, 98 Am. Dec. 336; Russell v. Hudson River R. Co., 17 N. Y. 134; Vick v. New York Cent. & H. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36; Wright v. Northampton & H. R. Co., 122 N. C. 852, 29 S. E. 100; Minty v. Union Pac. R. Co., 2 Idaho . E. & W. R. Co., 95 N. Y. 562, 47 Am. Rep. 75 ; Hammond v. North Eastern R. Co., 6 S. C. 130, 24 Am. Rep. 467; Houston & T. C. Ry. Co. v. Hampton, 64 Tex. 427; Arrow- smith v. Nashville & D. R. Co. (C. C.) 57 Fed. 165; Collett v. Railway Co., 16 Q. B. (Eng.) 984; Gulf, C. & S. P. Ry. Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811; Schuyler v. Southern Pac. Co., 37 Utah, 612, 109 Pac. 1025; Illinois Cent. R. Co. v. Porter, 117 Tenn. 13, 94 S. W. 666, 10 Ann. Cas. 789; Lindsey v. Pennsylvania R. Co., 26 App. D. C. 503, 6 Ann. Cas. 862. 528 THE NATURE OF THE RELATION (Ch. 16 sengers, when the express company contracts with the carrier; 17 pop corn sellers and vendors of newspapers, refreshments, and the like, whether working for themselves or employed by others; 48 a person leasing a room on a boat for the sale of cigars and liquors. 48 The same rule has been held to apply to persons in charge of a private car B0 and to employes of the sleeping car com- pany. 61 Trespassers — Fraud or Wrong of Person Riding We have seen that the carrier's consent, freely and fairly given, either expressly pjr^impHedh ^Jaj ies^sfi^^ passenger as to the person who is being carried. Qtherwise, such periorTTs not lawfully in the carrier's conveyance. 62 It isPmanife'st, therefore, that one who steallfi^ |g ^^sTupS SKc conve 3 rane e-Qf a carrier, and secretes himself,, .for. the purpose jof£assing_frojjj^3ne place to another withoutpayment of fare, is in no sense a pass, enger. In such a case, by vlrfjueof his wrongful" J^Lhj^is-^n^rejtnggpasser, and the carrier owes him no duty, except to absfeam-irom- willful injury. 63 In the same way, one attempting to defraud a carrier by " Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597 ; Voight v. Baltimore & O. S. W. R. Co. (C. C.) 79 Fed. 561 ; Missouri, K. & T. B. Co. of Texas v. Blalack, 105 Tex. 296, 147 S. W. 559; Blair v. Erie Ry. Co., 66 N. Y. 313, 23 Am. Rep. 55; Chamberlain v. Milwaukee & M. R. Co., 11 Wis. 238. Cf. Penn- sylvania Co. v. Woodworth, 26 Ohio St. 585; Xeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71; San Antonio & A. P. Ry. Co. v. Adams, 6 Tex. Civ. App. 102, 24 S. W. 839. is Com. v. Vermont & M. R. Co., 108 Mass. 7, 11 Am. Rep. 301; Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71. *» Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71. BoLockhart v. Lichtenthaler, 46 Pa. 151, 159; Cumberland Valley R. Co. v. Myers, 55 Pa. 288. See Torpy v. Railway Co., 20 U. C. Q. B. (Canada) 446 ; Lackawanna & B. R. Co. v. Chenewith, 52 Pa. 382. 91 Am. Dec. 168. 6i Jones v. St. Louis S. W. Ry. Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514. Contra, Hughson v. Richmond & D. R. Co., 2 App. D. C. 98. 52 Bricker v. Philadelphia & R. R. Co., 132 Pa. 1, 8 Atl. 983, 19 Am. St. Rep. 585; Haase v. Oregon Ry. & Nav. Co., 19 Or. 354, 24 Pac. 238; Fitz- gibbon v. Chicago & N. W. Ry. Co., 108 Iowa, 614, 79 N. W. 477, 93 N. W. 276. 03 Gardner v. New Haven & Northampton Co., 51 Conn. 143, 50 Am. Hep. 12; Hendryx v. Kansas City, Ft. S. & G. R. Co., 45 Kan. 377, 25 Pac. 893,- Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245; Chicago & A. R. Co. v. Michie, 83 111. 427; Chicago, B. & Q. R. Co. v. Mehlsack, 131 111. 61, 22 N. E. 812, 19 Am. St. Rep. 17 ; Bricker v. Philadelphia & R. R. Co., 132 Pa. 1, 18 Atl. 983, 19 Am. St. Rep. 585; Haase v. Oregon Ry. & Nav. Co, 19 Or. 354, 24 Pac. 238; Condran v. Chicago, M. & St P. R. Co., 14 C. C. A. 506, 67 Fed. 522, 28 L. R. A. 749. And see Reary v. Louisville, N. O. & T. Ry. Co., 40 La. Ann. 32, 3 South. 390, 8 Am. St Rep. 497; Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450 ; O'Brien v. Boston & W, R. Co., 15 Gray (Mass.) 20, 77 Am. Dec. 347; Austin v. Railway Co., L. R. 2 Q. B. (Eng.) 442, 446; Lygo v. Newbold, 9 Exch. (Eng.) 302. § 166) WHO ARE PASSENGERS 529 the use of a false ticket is a trespasser, not a passenger.** Thus, one who is injured by the mere negligence of a railway company while traveling on one of its trains upon a pass or ticket issued to another person, and by its terms not transferable, has no remedy against the company. BB So where a person fraudulently imposed himself upon the conductor as an express messenger, and obtained the conductor's consent to carry him without fare, it was held that he did not become entitled to the rights of a passenger." 6 And it was held that a railway company was not liable for the accidental death of a boy permitted by the conductor, in excess of the authority given to him by the company and against its rules, to ride gratuitously on the train to sell newspapers. 67 The same is true of one riding on the train with the intention of beating his way or defrauding the car- rier of his lawful fare, 68 or one riding by a clandestine and fraudu- lent private arrangement with one of the carrier's employes, even though money is paid to such employe. 69 A person, however, intending to become a passenger, who gets on the wrong train by mistake, is none the less a passenger while he is on such train ; for he is neither a wrongdoer, a trespasser, nor one seeking to work a fraud on the carrier. 60 One, too, is a pas- is* Toledo, W. & W. Ry. Co. v. Beggs, 85 111. 80, 28 Am. Rep. 613; Lillis v. St. Louis, K. 0. & N. Ry. Co., 64 Mo. 464, 27 Am. Rep. 255; Brown v. Mis- souri, K. & T. Ry. Co., 64 Mo. 536. And see Robertson v. New York & B. R. Co., 22 Barb. (N. Y.) 91; Gulf, C. & S. F. Ry. Co. v. Campbell, 76 Tex. 174, 13 S. W. 19; Prince v. International & G. N. Ry. Co., 64 Tex. 144; McVeety v. St. Paul, M. & M. Ry. Co., 45 Minn. 268, 47 N. W. 809, 11 L. R. A. 174, 22 Am. St Rep. 728 ; Toledo, W, & W. Ry. Co. v. Brooks, 81 111. 245 ; Union Pac. Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475; Great Northern Ry. Co. v ! . Harrison, 10 Exch. (Eng.) 376. ss Toledo, W. & W. Ry. Co. v. Beggs, 85 111. 80, 28 Am. Rep. 613; WAT v. CHICAGO, R. I. & P. R. CO., 64 Iowa, 48, 19 N. W. 828, 52 Am. Rep. 431, Dobie Cas. Bailments and Carriers, 300; Planz v. Boston & A. R. Co., 157 Mass. 377, 32 N. E. 356, 17 L. R. A. 835 ; McVeety v. St. Paul, M. & M. Ry. Co., 45 Minn. 268, 47 N. W. 809, 11 L. R. A. 174, 22 Am. St. Rep. 728. 5 6 Union Pac. Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475. And see Higgins v. Hannibal & St. J. R Co., 36 Mo. 418. 5' Duff v. Allegheny Valley R. Co., 91 Pa. 458, 36 Am. Rep. 675 ; Fleming v. Brooklyn City R. Co., 1 Abb. N. C. (N. T.) 433. A man shoveling coal for his passage by agreement with the fireman was held not a passenger. Wool- sey v. Chicago, B. & Q. R. Co., 39 Neb. 798, 58 N. W. 444, 25 L. R. A. 79. ss Pledger v. Chicago, B. & Q. R. Co., 69 Neb. 456, 95 N. W. 1057. 5»McNamara v. Great Northern Ry. Co., 61 Minn. 296, 63 N. W. 726; Mendenhall v. Atchison, T. & S. F. R. Co., 66 Kan. 438, 71 Pac. 846, 61 L. R. A. 120, 97 Am. St. Rep. 380. eo Cincinnati, H. & I. Ry. Co. v. Carper, 112 Ind. 26, 13 N. E. 122, 14 N. E. 352, 2 Am. St. Rep. 144; Patry v. Chicago, St. P., M. & O. Ry. Co., 77 Wis. 218, 46 N. W. 56 ; Gary v. Gulf, C. & S. F. Ry. Co., 17 Tex. Civ. App. 129, 12 S. W. 576; Lake Shore & M. S. Ry. Co. v. Rosenzweig, 113 Pa. 519, 6 Dob.Bailm. — 34 530 THE NATURE OF THE RELATION (Ch. 16 senger who for pleasure travels on Sunday, though a statute pro- hibits such travel save for necessity or charity. 61 The wrong in such case is against the state (which might prosecute the wrong- doer), not against the carrier, who, by accepting the person as a passenger incurs the duties due to persons belonging to that class. Nor can the carrier escape the duty owed to the passenger by show- ing that the person was traveling on a pass issued by it in violation of a statute, 62 or that the intention of the traveler was to engage in criminal or illegal acts after arriving at his destination. 88 Gratuitous Passengers There is a striking difference between the liability of common carriers of goods and the liability of common carriers of passengers when the carrier receives no compensation for the service rendered. As has been seen, where goods are carried gratuitously, the carrier is not a common carrier, but is merely a private carrier, and liable, as are other gratuitous bailees, only for a failure to exercise even slight care. 64 But, in respect to common carriers of passengers, the rule is entirely different. Even though such passengers are carried gratuitously, if they have been accepted by the carrier as passen- gers, all the extraordinary liabilities of the relation attach. Hav- ing admitted him to the rights of a passenger, the carrier owes to him the same measure of duty which is owed to those who have paid for the service. 65 Atl. 545 ; Ham v. Delaware & H. Canal Co., 142 Pa. 617, 21 Atl. 1012 ; Lewis V. President, etc., of Delaware & H. Canal Co., 145 N. T. 508, 40 N. E. 248. ei Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 Am. Rep. 221; Master- son v. Chicago & N. W. Ry. Co., 102 Wis. 571, 78 N. W. 757 ; Opsahl v. Judd, 30 Minn. 126, 14 N. W. 575. ' 02 Buffalo, P. & W. R. Co. v. O'Hara, 3 Penny. (Pa.) 190. 63 1 Fetter on Passenger Carriers, § 220. See interesting cases there cited holding contra, during reconstruction times, as to those engaged in the mili- tary service of the Confederacy. Martin v. Wallace, 40 Ga. 52 ; Turner v. North Carolina R. Co., 63 N. C. 522. «* Ante, p. 304. es Todd v. Old Colony & F. R. R. Co., 3 Allen (Mass.) 18, 80 Am. Dec. 49; Com. v. Vermont & M. R. Co., 108 Mass. 7, 11 Am. Rep. 301; Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 20 N. B. 103, 2 L. R. A. 502 ; Files v. Boston & A. R. Co., 149 Mass. 204, 21 N. B. 311, 14 Am. St. Rep. 411; Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468, 14 L. Ed. 502 ; The New World v. King, 16 How. (U. S.) 469, 14 L. Ed. 1019 ; Quimby v. Boston & M. R. Co., 150 Mass. 365, 368, 23 N. B. 205, 5 L. R. A. 846 ; Waterbury v. New York C. & H. R. R. Co. (C. C.) 17 Fed. 671 ; Nolton v. Western R. Corp., 15 N. Y. 444, 69 Am. Dec. 623; Indianapolis Traction & Terminal Co. v. Lawson, 143 Fed. 834, 74 C. C. A. 630, 5 L. R. A. (N. S.) 721, 6 Ann. Cas. 666 ; Russell v. Pitts- burgh, C, C. & St. L. Ry. Co., 157 Ind. 305, 61 N. E. 678, 55 L. R. A. 253. 87 Am. St. Rep. 214 ; McNeill v. Durham & C. R. Co., 135 N. C. 682, 47 S. E. 765, 67 L. R. A. 227; Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 AtL § 166) WHO ABE PASSENGERS 531 This duty, imposed by law by virtue of the relation of passenger and common carrier, has for its basis a sound public policy in the high regard which the state has for the lives and safety of its citi- zens. The sanctity of human life and limb which obtains in the case of carriers of passengers, as contrasted with the mere economic basis of the carrier's relation to a shipper of goods, is ample war- rant for a different rule as to the two carriers, when no reward is received for the service. The passenger carrier is not compellable any more than the carrier of goods to carry gratuitously ; but, hav- ing voluntarily elected so to do, its duty is in no wise affected by the nonpayment of fare. Thusf in a leading case, the president of a railroad company, in- jured while riding by invitation on the line of another company, recovered as a passenger from the latter for the damage sustained, though his carriage was gratuitous. 66 So a man riding free under a custom to carry "steamboat men" without charge, 67 and a child rid- ing with its mother under a rule of the company which permitted children under three to travel without payment of fare, 68 are pas- sengers who can claim the same duties owed by the carrier to pas- sengers who pay. A person in good faith accepting an invitation to ride free, given by an authorized agent of the carrier, is a passenger. 69 But if he accepts an invitation to ride fr.ee, given by an agent not having authority to invite, he is not a passenger. 70 The invitation in such 1069, 25 L. R. A. 491; Indianapolis Traction & Terminal Co. v. Klentschy, 167 Ind. 598, 79 N. B. 908, 10 Ann. Cas. 869. «e Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468, 14 L. Ed. 502. «t The New World v. King, 16 How. (TJ. S.) 469, 14 L. Ed. 1019. es Austin v. Railway Co., 8 Best & S. (Eng.) 327, L. R. 2 Q. B. 442. In this case the child was three years and three months old, and should have paid half fare, yet a recovery was permitted. See, also, Littlejohn v. Fitchburg R. Co., 148 Mass. 478, 20 N. E. 103, 2 L. R. A. 502 ; Ball v. Mobile Light & Pow- er Co., 146 Ala. 309, 39 South. 584, 119 Am. St. Rep. 32, 9 Ann. Cas. 962; Rawlings v. Wabash R. Co., 97 Mo. App. 511, 71 S. W. 535 ; Id., 97 Mo. App. 515, 71 S. W. 534. «» Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7; Todd v. Old Colony & P. R. R. Co., 3 Allen (Mass.) 18, 80 Am. Dec. 49; Id., 7 Allen (Mass.) 207, 83 Am. Dec. 679 ; Rose v. Des Moines Valley R., 39 Iowa, 246; Jacobus v. St. Paul & C. Ry. Co., 20 Minn. 125 (Gil. 110), 18 Am. Rep. 360 ; Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468, 14 L. Ed. 502 ; Wil- ton v. Middlesex R. Co., 107 Mass. 108, 9 Am. Rep. 11 ; Grand Trunk R. Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535. Contra, Kinney v. Central R. Co., 34 N. J. Law, 513, 3 Am. Rep. 265. to Hoar v. Maine Cent. R. Co., 70 Me. 65, 35 Am. Rep. 299 ; Eaton v. Del- aware, L. & W. R. Co., 57 N. Y. 382, 15 Am. Rep. 513 ; Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98 ; Waterbury v. New York C. & H. R. R. Co. (C. C.) 17 Fed. 671, and note; Clark v. Colorado & N. W. R. Co., 165 532 THE NATURE OF THE RELATION (Ch. 16 cases is binding on the carrier provided it is within the scope of the employment of such agent or employe. The term "scope of em- ployment" has here, as elsewhere in such connection, a very broad meaning. 71 Accordingly, if within the scope of the agent's employ- ment, the invitation is none the less binding on the carrier, to cre- ate one a passenger who accepts it, though given in violation of the carrier's rules or instructions. This was held in the case of the driver of a horse car inviting a girl to ride on the car without pay. 72 One traveling on a "drover's pass," issued in order that he may accompany cattle on which freight has been paid, is not a gratui- tous passenger, even though the contract of transportation may contaii 1 recitals to that effect. 73 Nor is he a servant of the railroad company. 7 * Persons Riding on Freight Trains and Other Vehicles Not Intended for Passengers A common carrier of passengers is not necessarily such as to all the conveyances operated by it. Thus a railroad company, though it holds itself out as a common carrier of passengers, is not bound to carry them upon its hand cars, 76 pay cars, 76 nor, in all cases, Fed. 408, 91 C. C. A. 358, 19 L. R. A. (N. S.) 988 ; O'Donnell v. Kansas City, St. L. & C. R. Co., 197 Mo. 110, 95 S. W. 196, 114 Am. St Rep. 753 ; Rathbone v. Oregon R. Co., 40 Or. 225, 66 Pac. 909 ; Grimshaw v. Lake Shore & M. S. R. Co., 205 N. T. 371, 98 N. E. 762, 40 L. R. A. (N. S.) 563, Ann. Cas. 1913E, 571. 7i Ramsden v. Boston & A. R. Co., 104 Mass. 117, 6 Am. Rep. 200. See, also, Fitzgibbon v. Chicago & N. W. R Co., 119 Iowa, 261, 93 N. W. 276; St. Louis Southwestejp R. Co. v. Fowler (Tex. Civ. App.) 93 S. W. 484. 72 Wilton v. Middlesex R., 107 Mass. 108, 9 Am. Rep. 11; Metropolitan St. R. Co. v. Moore, 83 Ga. 453, 10 S. B. 730. See, also, Pittsburg, A. & M. Pass. Ry. Co. v. Caldwell, 74 Pa. 421 ; Danbeck v. New Jersey Traction Co., 57 N. J. Law, 463, 31 Atl. 1038. 78 New York C. R Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627 ; Sprigg's Adm'r v. Rutland R. Co., 77 Vt. 347, 60 Atl. 143 ; Saunders v. Southern Pac. Co., 13 Utah, 275, 44 Pac. 932 ; Solan v. Chicago, M. & St. P. Ry. Co., 95 Iowa, 260, 63 N. W. 692, 28 L. R. A. 718, 58 Am. St. Rep. 430 ; Rowdin v. Pennsyl- vania R. Co., 208 Pa. 623, 57 Atl. 1125; Feldschneider v. Chicago, M. & St P. R. Co., 122 Wis. 423, 99 N. W. 1034 ; New York, C. & St. L. R. Co. v. Blumenthal, 160 111. 40, 43 N. E. 809. In general, shippers or their agents accompanying the goods, who travel with the carrier's consent, are passen- gers: Chicago, B. & Q. R. Co. v. Williams, 200 Fed. 207, 118 C. C. A. 393; St. Louis, I. M. & S. R. Co. v. Loyd, 105 Ark. 340, 140 S. W. 864; Szezepanski v. Chicago & N. W. R Co., 147 Wis. 180, 132 N. W. 9S9. 74 Omaha & R. V. Ry. Co. v. Crow, 54 Neb. 747, 74 N. W. 1066, 69 Am. St. Rep. 741 ; Missouri Pac. Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346, 1 L. R. A 500, 10 Am. St. Rep. 758. 7 5 Hoar v. Maine Cent. R. Co., 70 Me. 65, 35 Am. Rep. 299; Gulf, C. & S. F. Ry. Co. v. Dawkins, 77 Tex. 228, 13 S. W. 982. i a, Southwestern R. R. v. Singleton, 66 Ga. 252. § 166) WHO ABE PASSENGERS 533 upon its freight trains. 77 When a railroad company makes other suitable provision for passenger travel, no one has the right to de- mand that he shall be allowed to ride in its trains devoted ex- clusively to the carrying of freight. Not infrequently, however, persons do travel on such trains or vehicles, and the question when such persons are passengers has been frequently before the courts, particularly as to persons riding on freight .trains. When the railroad company makes a clear and well-defined sep- aration between its freight and passenger traffic and the convey- ances devoted thereto, and its regulations (up to which it lives) forbid the transportation of passengers on freight trains, then the conductors and other officials have no authority to permit persons to ride on such trains. Under such circumstances, , these persons, even though they ride with the conductor's consent, are not to be considered as passengers of the carrier. 78 Particularly is this true when these trains, by their appearance and lack of facilities for passengers, clearly indicate that they are intended by the company solely for the transportation of freight and the company's serv- ants engaged in handling this. 7 " If, however, in spite of the apparent separation of freight and passenger transportation, the company habitually permits persons to travel on its freight trains, or even if the company sits silent with knowledge that its regulations forbidding such practices are habitually broken, then a person may reasonably infer that the com- pany permits the practice. If, under these circumstances, a person boards the freight train with the conductor's consent, believing that " Jenkins v. Chicago, M. & St. P. Ry. Co., 41 Wis. 112 ; Gardner v. New Haven & Northampton Co., 51 Conn. 143, 50 Am. Rep. 12 ; POWERS v. BOS- TON & M. R. CO., 153 Mass. 188, 26 N. B. 446, Dobie Cas. Bailments and Car- riers, 303. 78 POWERS v. BOSTON & M. R. CO., 153 Mass. 188, 26 N. E. 446, Dobie Cas. Bailments and Carriers, 303; Stalcup v. Louisville, N. A. & C. Ry. Co., 16 Ind. App. 584, 45 N. E. 802 ; Baltimore & O. S. W. Ry. Co. v. Cox, 66 Ohio St. 276, 64 N. E. 119, 90 Am. St. Rep. 583 ; Eaton v. Delaware, L. & W. R. Co., 57 N. T. 382, 15 Am. Rep. 513 ; Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98 ; Arnold v. Illinois Cent. R. Co., 83 111. 273, 25 Am. Rep. 386 ; Thomas v. Chicago & G. T. Ry. Co., 72 Mich. 355, 40 N. W. 463 ; Murch v. Concord R. Corp., 29 N. H. 9, 61 Am. Dec. 631 ; Hobbs v Texas & P. Ry. Co., 49 Ark. 357, 5 S. W. 586; Louisville & N. R. Co. v. Hailey, 94 Tenn. 383, 29 S. W. 367, 27 L. R. A. 549 ; San Antonio & A. P. Ry. Co. v. Lynch, 8 Tex. Civ. App. 513, 28 S. W. 252. And see Illinois Cent. R. Co. v. Nelson, 59 111. 110. »» Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98 ; Dysart v. Missouri, K. & T. R. Co., 122 Fed. 228, 58 C. C. A. 592. 534 THE NATURE OF THE RELATION (Ch. 16 the conductor has the power thus to accept him for transportation, then he is a passenger. 80 When the separation of passenger and freight traffic is not dis- tinctly made, and the carrier customarily carries persons on its freight trains, then somewhat different considerations apply. Here one boarding the freight train, with the conductor's consent, hon- estly believing in the authority of the conductor, when the train itself does not give him notice to the contrary, is to be considered a passenger. 81 By making its freight trains lawful passenger trains, a railroad company, so far as the public is concerned, apparently gives the conductors of its freight trains authority to carry passen- gers, 82 and, if a particular freight conductor has orders not to carry passengers upon his train, they are in the nature of secret instruc- tions limiting his apparent authority, and third persons are not bound by such instructions without notice. 88 In general, it may be said that one riding on a train or convey- ance, which by its appearance indicates that it is not used for car- rying passengers, is presumed prima facie not to be a passenger, even though he is permitted to ride by the agent in charge of such train or conveyance. 8 * The burden of proving the authority of such so Greenfield v. Detroit & M. R. Co., 133 Mich. 557, 95 N. W. 546; Berry v. Missouri Pac. Ry. Co., 124 Mo. 223, 25 S. W. 229 ; Mobile & O. R. Co. v. Mc- Arthur, 43 Miss. 180 ; Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98 ; Lucas v. Milwaukee & St. P. Ry. Co., 33 Wis. 41, 14 Am. Rep. 735 ; Dunn v. Grand Trunk Ry. Co. of Canada, 58 Me. 187, 4 Am. Rep. 267; Ala- bama G. S. R. Co. v. Yarbrough, 83 Ala. 238, 3 South. 447, 3 Am. St. Rep. 715 ; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461 ; Burke v. Missouri Pac. Ry. Co., 51 Mo. App. 491. si Lucas v. Milwaukee & St. P. Ry. Co., 33 Wis. 41, 14 Am. Rep. 735; White- head v. St. Louis, I. M. & S. Ry. Co., 99 Mo. 263, 11 S. W. 751, 6 L. R. A. 409; Fitzgibbon v. Chicago & N. W. Ry. Co., 108 Iowa, 614, 79 N. W. 477; Eyerett v. Oregon S. L. & U. N. Ry. Co., 9 Utah, 340, 34 Pac. 289 ; Illinois Cent R. Co. v. Sutton, 53 111. 397 ; Simmons v. Oregon R. Co., 41 Or. 151, 69 Pac. 440, 1022; Boggess v. Chesapeake & O. Ry. Co., 37 W. Va. 297, 16 S. E. 525, 23 L. R. A. 777. 8 2 Dunn v. Grand Trunk Ry. Co. of Canada, 58 Me. 187, 4 Am. Rep. 267; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461 ; Brown v. Kan- sas City, Ft. S. & G. R. Co., 38 Kan. 634, 16 Pac. 942 ; Wagner v. Missouri Pac. Ry. Co., 97 Mo. 512, 10 S. W. 486, 3 L. R, A. 156 ; Texas & P. Ry. Co. v. Black, 87 Tex. 160, 27 S. W. 118. See, also, as to construction trains, St Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461. ss Lawson v. Chicago, St. P., M. & O. Ry. Co., 64 Wis. 447, 456, 24 N. W. 61S, 54 Am. Rep. 634 ; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac 461 ; Illinois Cent. R. Co. v. Axley, 47 111. App. 307. See, also, Simmons t. Oregon R. Co., 41 Or. 151, 69 Pac. 440, 1022. s* Eaton v. Delaware, L. & W. R. Co., 57 N. Y. 382, 15 Am. Rep. 513; Atchison, T. & S. F. R. Co. v. Headland, 18 Colo. 477, 33 Pac. 185, 20 L. R. A. 822; Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98. § 166) WHO ABE PASSENGERS 535 agent to create one a passenger rests upon the person thus riding. 85 If such person knows that the agent has no such actual authority, and that in riding he violates the company's regulations, then he is not a passenger as to the company ; and this is true even though he is received by the agent's express assent and pays for his trans- portation. 86 Employis of the Carrier Employes of the passenger carrier, if engaged in the performance of their duties as such employes while riding, are not passengers. They are servants of the carrier, and the duties and liabilities of the carrier towards them are those which the master owes or incurs towards the servant. 87 The relation, then, is that of master and servant, not that of passenger and carrier. The distinction is im- portant, in that, while the carrier owes to a passenger the highest degree of practicable care, 88 to a servant the carrier owes the duty of exercising merely ordinary care. 89 There are defenses, too, such as the fellow servant doctrine, which a carrier can set up against a servant, but which are not available against a passenger. 90 Not only are those persons not passengers who are actually en- gaged in operating the train on which they are riding, such as the conductor, brakeman, or engineer, but the rule is of much broader application. Those are servants, and not passengers, when the transportation grows put of, and is immediately connected with, the service of the carrier by whom they are employed. 91 Thus so Waterbury v. New York C. & H. R. R. Co. (C. C.) 17 Fed. 671. so Whitehead v. St. Louis, I. M. & S. Ry. Co., 22 Mo. App. 60 ; Louisville & N. R. Co. v. Hailey, 94 Term. 383, 29 S. W. 367, 27 L. R. A. 549 ; Gulf, C. & S. F. Ry. Co. v. Campbell, 76 Tex. 174, 13 S. W. 19 ; Sands v. Southern R Co., 108 Tenn. 1, 64 S. W. 478. 87 Vick v. New York Cent. & H. R. R. Co., 95 *T. Y. 267, 47 Am. Rep. 36; Gillshannon v. Stony Brook R. Corp., 10 Cush. (Mass.) 228; O'Donnell v. Allegheny Valley R. Co., 59 Pa. 239, 98 Am. Dec. 336 ; Howland v. Milwaukee, L. S. & W. Ry. Co., 54 Wis. 226, 11 N. W. 529 ; Kumler v. Junction R. Co., 33 Ohio St. 150. See cases cited in note 89. ss Post, § 179. 89 Norfolk & W. R. Co. v. Jackson's Adm'r, 85 Va. 489, 8 S. E. 370; Wash- ington & G. R. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235 ; Allen v. Union Pac. Ry. Co., 7 Utah, 239, 26 Pac. 297 ; Louisville & N. R. Co. v. Johnson, 81 Fed. 679, 27 C. C. A. 367. so Chicago & E. I. R. Co. v. Kneirim, 152 111. 458, 39 N. E. 324, 43 Am. St. Rep. 259 ; Farwell v. Boston & W. R. Corp., 4 Mete. (Mass.) 49, 38 Am. Dec. 339 ; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. »i Vick v. New York Cent. & H. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36; Wright v. Northampton & H. R. Co., 122 N. C. 852, 29 S. E. 100 ; Chattanooga Rapid Transit Co. v. Venable, 105 Tenn. 460, 58 S. W. 861, 51 L. R. A. 886; 536 THE NATURE OF THE RELATION (Ch. 16 painters and switch cleaners, 82 riding, after completing one job, to another, and a foreman, 98 carpenter, 94 or civil engineer 9B employed by the carrier and traveling in connection with their duties are all servants. Where one is carried to and from his work by the carrier in whose service he is, and no charge is made for this service, he is while being thus carried merely a servant of the company." When, however, the carrier is paid for this service, as when the wages of the person are reduced for such transportation, then he is a passenger. 97 If, however, though transported free on an em- ploye's pass, such employe is riding in connection with his own business or pleasure, and his traveling is' not in connection with his duties as an employe of the carrier, then he is a passenger, and not a servant of the carrier. 98 TRAVELERS' INS. CO. v. AUSTIN, 116 Ga. 266, 42. S. B. 522, 59 L. R, A. 107. 'fH Am. St. Pep. 125, Dobie Cas. Bailments and Carriers, 305. »2 McQueen v. Central Branch U. P. Ry. Co., 39 Kan. 689, 1 Pac, 139; Shan- non v. I'nion It. Co., 27 R. I. 475, 63 Atl. 488. "3 Louisville & N. R. Co. v. Stuber, 108 Fed. 934, 48 C. C. A. 149, 54 L. R. A. 096. 8 4 Reaver v. Boston & M. R., 14 Gray (Mass.) 466. as Texas & P. R. Co. v. Smith, 67 Fed. 524, 14 C. C. A, 509, 31 L. R. A. 321. »6 ionnone v. New York, N. H. & H. R. Co., 21 R. I. 452, 44 Atl. 592, 46 L. R. A 730, 79 Am. St. Rep. 812 ; Gillshannon v. Stony Brook R. Corp., 10 Oush. (Mass.) 228; St. Louis, C. & St P. Ry. Co. v. Waggoner, 90 111. App. r>5 New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049; Holmes v. Wakefield, 12 Allen (Mass.) 580, 90 Am. Dec. 171; Pennsylvania R. Co. v. Vandier, 42 Pa. 365, 82 Am. Dec. 520; Bass v. Chi- cago & N. W. R. Co., 36 Wis. 450, 17 Am. Rep. 495; Mykleby v. Chicago, St. P., M. & O. Ry. Co., 39 Minn. 54, 38 N. W. 763; Evansville & I. R. Co. v. Gilmore, 1 Ind. App. 468, 27 N. B. 992; Knowles v. Norfolk & S. R. Co., 102 N. C. 59, 9 S. E. 7; Jardine v. Cornell, 50 N. J. Law, 485, 14 Atl. 590; Brown v. Hannibal & St. J. R. Co., 66 Mo. 588 ; Philadelphia, W. & B. E. Co. v. Larkin, 47 Md. 155 ; Texas Pac. Ry. Co. v. James, 82 Tex. 306, 18 S. W. 589, 15 L. R. A. 347; Gill v. Rochester & P. R. Co., 37 Hun (N. Y.) 107; Klenk v. Oregon Short Line R. Co., 27 Utah, 428, 76 Pac. 214; CHICAGO, ST. L & P. R. CO. v. BILLS, 104 Ind. 13, 3 N. K. 611, Dobie Cas. Bailments and Carriers, 320. »s Townsend v. New York Cent. & H. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419; Murphy v. Union Ry. Co., 118 Mass. 228; Atchison, T. & S. F. Ry. Co. v. Gants, 38 Kan. 608, 17 Pac. 54, 5 Am. St. Rep. 780; Norfolk & W. R. Co. v. Brame, 109 Va. 422, 63 S. E. 1018; Chesapeake & O. Ry. Co. v. Robinett, 151 Ky. 778, 152 S. W. 976, 45 L. R. A. (N. S.) 433. »» Chicago, R. I. & P. Ry. Co. v. Herring, 57 111. 59. i Lillis v. St. Louis, K. C. & N. Ry. Co., 64 Mo. 464, 27 Am. Rep. 255; Mc- Cullen v. New York & N. S. Ry. Co., 68 App. Div. 269, 74 N. Y. Supp. 209; Coleman v. New York & N. H. R. Co., 106 Mass. 160; Atchison, X. & S. F. R. Co. v. Gants, 38 Kan. 608, 17 Pac. 54, 5 Am. St Rep. 780 ; Moore v. Colum- bia & G. R. Co., 38 S. C. 1, 16 S. E. 781; CHICAGO, ST. L. & P. R. CO. v. BILLS, 104 Ind. 13, 3N.fi 611, Dobie Cas. Bailments and Carriers, 320. § 172) OIBOUMSTANOES SURROUNDING THE EJECTION 557 roughness altogether disproportionate to his resistance. 2 Even resistance to a lawful ejection is not warrant for wanton injury or brutality. If the ejection itself (regardless of the mode and place) is im- proper, by the better opinion, the passenger can resist and for injuries received by him as a result of his resistance he can recover from the carrier. 8 According to some courts, however, the pas- senger must tamely submit to the wrongful ejection and sue for damages, and he cannot increase the damages by his obstinate (?) resistance.* It may well be that imperative circumstances may require that he continue his journey without interruption. 8 Or, if ejected, he may suffer special damages, which he may not be able to collect. It hardly seems fair, then, to expect such vicarious sub- mission by one who is in the right in favor of the one who is doing him a wrong. As was said in a leading case : 8 "The law does not, under such circumstances, place the passenger within the power of the conductor, and, when lawfully in the cars, he is authorized to vindicate such right to the full extent which might be required for its protection." It may well be, as is often said, that resistance here is not a prudent 7 remedy ; but whether a right exists and whether it is prudent to exercise an existing right are somewhat different questions. Again, when the ejection itself is lawful, but the manner or place of it are such as to expose the passenger to imminent peril of life or 2 Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, 80 Am. Dee. 286 ; CHICAGO, ST. L. & P. R. CO. v. BILLS, 104 Ind. 13, 3 N. E. 611, Dobie Cas. Bailments and Carriers, 320. s Zagelmeyer v. Cincinnati S. & M. R. Co., 102 Mich. 214, 60 N. W. 436, 47 Am. St. Rep. 514 ; Pittsburgh, C, C. & St. L. R. Co. v. Russ, 67 Fed. 662, 14 C. C. A. 612; Ellsworth v. Chicago, B. & Q. Ry. Co., 95 Iowa, 98, 63 N. W. 584, 29 L. R. A. 173 ; Louisville, N. A. & C. Ry. Co. v. Wolfe, 128 Ind. 347, 27 N. E. 606, 25 Am. St. Rep. 436 ; Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557; New York, L. E. & W R. Co. v. Winter, 143 D. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71 ; Indianapolis Traction & Terminal Co. v. Lockman, 49 Ind. App. 143, 96 N. E. 970 ; English v. Delaware & H. Canal Co., 66 N. T. 454, 23 Am. Rep. 69 ; Louisville, N. A. & C. Ry. Co. v. Wolfe, 128 Ind. 347, 27 N. E. 606, 25 Am. St. Rep. 436. In the last, two cases the passenger had paid his fare, and was ejected for refusal to pay again. He was in each case permitted to recover for injuries due to his resistance. * Atchison, T. & S. P. R. Co. v. Hogue, 50 Kan. 40, 31 Pac. 698 ; Pennsyl- vania R. Co. v. Cornell, 112 111. 295, 54 Am. Rep. 238 ; Gibson v. East Tennes- see, V. & G. R. Co. (C. C.) 30 Fed. 904 ; Monnier v. New York Cent. & H. R, R. Co., 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619; Randell v. Chicago, R. I. & P. R. Co., 102 Mo. App. 342, 76 S. W. 493. 5 English v. Delaware & H. Canal Co., 66 N. Y. 454, 23 Am. Rep. 69. - English v. Delaware & H. Canal Co., 66 N. Y. 454, 23 Am. Rep. 69. i Hufford v. Grand Rapids & T. Ry. Co., 53 Mich. 118, 18 N. W. 580. 558 COMMENCEMENT AND TERMINATION OF THE RELATION (Ch. 17 limb, the passenger is within his rights by resisting to the utmost. It was admirably said by Comstock, C. J., 8 in a case when an at- tempt was made to eject a passenger at night from a rapidly mov- ing car: "The passenger has the same right to repel an attempt to eject him, when such an attempt will thus endanger him, that he has to resist a direct attempt to take his life. The great law of self-preservation so plainly establishes this conclusion that no fur- ther argument can be necessary." Tender Back of Fare by Carrier before Ejection It is usually held, though there are cases to the contrary," that the carrier, before ejecting the passenger, must tender to the pas- senger any fare received by the carrier in excess of that required to pay for the passenger's transportation from the point at which his journey began to the point of his ejection. 10 The carrier thus is paid only for the distance the passenger is actually carried. For the carrier to eject the passenger and then retain the fare collected on the basis of transporting the passenger to his destination hardly seems fair. It has even been held that the conductor, ejecting the passenger holding a ticket claimed by the conductor to be worth- less, should return such ticket, as a piece of evidence that would be valuable to the passenger in a subsequent suit against the carrier. 11 SAME— ABANDONMENT OF INCOMPLETED JOURNEY BY PASSENGER 173. The passenger may terminate his relation as such to the car- rier, at any time he chooses, by leaving the carrier's ve- hicle with the intention of permanently abandoning his rights as a passenger. Another analogy between the innkeeper and passenger carrier is found in the fact that, while the innkeeper 12 and carrier 13 may terminate the relation as to guest or passenger only in a few well- a Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, 80 Am. Dec. 286. » Gregory v. Chicago & N. W. Ry. Co., 100 Iowa, 345, 69 N. W. 532; Rahil- ly v. St. Paul & D. R. Co., 66 Minn. 153, 68 N. W. 853. io Hoffbauer v. D. & N. W. R. Co., 52 Iowa, 344, 3 N. W 121, 35 Am. Rep. 278 ; Bland v. Southern Pao. R. Co., 55 Cal. 570, 36 Am. Rep. 50 ; Braun v. Northern Pac. R. Co., 79 Minn. 404, 82 N..W. 675, 984, 49 L. R. A. 319, 79 Am. St. Rep. 497; Bumham v Grand Trunk Ry. Co., 63 Me. 298, 18 Am. Rep. 220 ; Baltimore, P. & C. R. Co. v. McDonald, 68 Ind. 316. ii Vankirk v. Pennsylvania R. Co., 76 Pa. 66, 18 Am. Rep. 404. 12 Ante, § 104. « Ante, §§ 168-172. § 173) ABANDONMENT OF JOURNEY BY PASSENGEB 559 defined cases, the guest 14 or passenger 1B may terminate the rela- tion at any time, either for a poor reason or no reason at all. At any time, then, and for any reason, the passenger may ter- minate the relation to the carrier by leaving the carrier's vehicle with the intention of permanently renouncing his rights as a pas- senger. 16 This he may do at any point, even though he is far from the destination to which his ticket, for which he has paid, entitles him to be carried. 17 The relation is not terminated, however, when the passenger leaves the carrier's vehicle, intending to return thereto, for a mere temporary purpose, 18 as, for example, to procure refreshments. 18 Nor does the passenger cease to be such merely by rendering as- sistance to the carrier or his servants in case of an accident, 20 as where, on request by the conductor, he aided in moving an ill pas- senger from one car to another. 21 Nor does the passenger termi- nate the relation merely by riding in a dangerous place or posi- i* Ante, § 104. " See cases cited In the succeeding note. i« Frost v. Grand Trunk R. Co., 10 Allen (Mass.) 387, 87 Am. Dec. 668; Commonwealth v. Boston & M. R. Co., 129 Mass. 500, 37 Am. Rep. 382 ; Buck- ley v. Old Colony R. Co., 161 Mass. 26, 36 N. B. 583. 17 See cases cited in preceding note. is Parsons v. New York Cent. & H. R. R. Co., 113 N, Y. 355, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450; Keokuk Northern Line Packet Co. v. True, 88 111. 608; Watson v. East Tennessee, V. & G. R. Co., 92 Ala. 320, 8 South. 770 ; Dice v Willamette Transportation & Locks Co., 8 Or. 60, 34 Am. Rep. 575; Jeffersonville, M. & I. R. Co. v Riley, 39 Ind. 568; Dodge v. Bos- ton & B. S. S. Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541 ; Galveston, H. & S. A. R. Co. v. Mathes (Tex. Civ. App.) 73 S. W. 411 ; Conroy v. Chicago, St. P., M. & O. R. Co., 96 Wis. 243, 70 N. W. 486, 38 L. R. A. 419. But see Lemery v. Great Northern Ry: Co., 83 Minn. 47, 85 N. W. 908 ; Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 636, 90 N. W. 649, 57 L. R. A. 890, 97 Am. St. Rep, 666. The passenger, however, can no longer claim to be such on leaving the station. Johnson v. Boston & M. R. R., 125 Mass. 75; King v. Central of Georgia Ry. Co., 107 Ga. 754, 33 S. E. 839. io Parsons v. New York Cent. & H. R. R. Co., 113 N. Y. 355, 363, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450 ; Dodge v. Boston & B. S. S. Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St Rep. 541 ; Hrebrik v. Carr (D. C.) 29 Fed. 298 ; 'Peniston v. Chicago, St. L. & N. O. R. Co., 34 La. Ann. 777, 44 Am. Rep. 444; Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568; Pitcher v. Lake Shore & M. S. R. Co., 55 Hun, 604, 8 N. Y. Supp. 389 ; Ala- bama G. S. R. Co. v. Coggins, 88 Fed. 455, 32 C. C. A. 1; Atchison, T. & S. F. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, 20 L. R. A. 729. 20 Mclntyre Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333 ; Ormond v. Hayes, 60 Tex. 180 ; Chicago & A. Ry. Co. v. Rayburn, 153 111. 290, 38 N. E. 558. 2i Lake Shore & M. S. Ry. Co. v. Salzman, 52 Ohio St. 558, 40 N, E. 891, 31 L. R. A. 261. 560 COMMENCEMENT AND TERMINATION OP THE RELATION (Ch. 17 tion. 22 He still, in such case, remains a passenger, though, if in- jured, any recovery might be barred by a plea of contributory neg- ligence. 28 " New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct 1039, 30 L. Ed. 1049 ; New York, L. E. & W. R. Co. v. Ball, 53 N. J. Law, 283, 21 Atl. 1052; Brown v. Scarboro, 97 Ala. 316, 12 South. 289; Willmott t. Corrigan Consol. St. Ry. Co., 106 Mo. 535, 17 S. W. 490. as Brown v. Scarboro, 97 Ala. 316, 12 South. 289 ; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 9 Sup. Ct. 1039, 30 L. Ed. 1049. For extended discussion of contributory negligence in riding in dangerous places, see 1 Fetter on Passenger Carriers, §§ 167-177. Ch. 18) LIABILITIES OF COMMON CARRIER OF PASSENGERS 561 CHAPTER XVIII LIABILITIES OF THE COMMON CARRIER OF PASSENGERS 174. Introductory. 175. Duty to Accept and Carry Passengers. 176. Duty to Furnish Equal Accommodations to Passengers. 177. Liability for Delay in Transporting Passengers. 178. Liability of Carrier for Injuries to Passengers — Analysis of Discussion. 179. In General. 180. Means of Transportation. 181. Stational Facilities. 182. Duties in Connection with Transportation. 183. Servants of the Carrier. 184. Protection of the Passenger. 185. Contributory Negligence of Passenger. 186. Contributory Negligence a Question of Law or of Fact 187. Last Clear Chance and Imputation of Negligence. 188. Presumption and Burden of Proof as to Negligence. 189. Carriers by Water. 190. Contracts Limiting the Liability of the Passenger Carrier. 191. Liability of the Carrier to Persons other than Passengers. INTRODUCTORY 174. The law imposes upon the common carrier of passengers vari- ous duties, with a correspondmg^iability on the part of the^carr ier for ad ffi^firT ofThese duties to the person to whomTthe dutv^|s owed and who jOnJured bythe breach. The present chapter is devoted to the discussion of the liabilities of the common carrier of passengers under the following heads : (1) Duty to accept and carry passengers. (2) Duty to furnish equal accommodations to passengers. (3) Liability for delay in transporting passengers. (4) Liability for injuries to passengers. (5) Contracts limiting the liability of the passenger carrier. (6) Liability of the carrier to persons other thar passengers. The nature of the relation between the common carrier and the passenger has already been discussed, 1 as well as the commence- ment and termination of this relation. 2 The duties imposed on the carrier by this relation, and the consequent liability resulting from any breach of such duties next require attention. These can be conveniently treated according to the classification given above. In this classification the liability of the carrier in the first class i Ante, chapter XVI. * Ante, chapter XVII. Dob.Baiut. — 36 562 LIABILITIES OF COMMON CAKBIEB OP PASSBNGEBS (Ch.18 affects passengers or intending passengers ; in the sixth class, the liabilities concern those who are not in any sense passengers; in the other classes, the liabilities affect only those who are passengers of the carrier. One very important liability of the carrier, that relating to the baggage of the passenger, is so unique and requires such extended notice that it is discussed in a subsequent chapter 3 devoted entirely to that subject. DUTY TO ACCEPT AND CARRY PASSENGERS 175. The common carrier of passengers must accept and carry all proper persons j^o^uitaMML ^pplv.^ providedjSi ^i s ^ :oem in his conveyance and .theyuate .afele .an d willingto pay tor the transportation. The primary duty of the common carrier of passengers is to ac- cept for transportation all proper persons who suitably apply.* By engaging in a public calling, and by holding himself out as ready to serve all without discrimination, the common carrier of passengers must make good this holding out. He is therefore required by law to serve the public which he proposes to serve, and in this pub- lic calling to know no individuals and to make no unreasonable and arbitrary distinctions between classes of people. The priv- ileges which he exercises as a public servant, the essential dependence of the public on the carrier for the rendering of such s Post, chapter XX. * West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744; Sanford v. Catawissa, W. & E. R. Co., 2 Phila. (Pa.) 107 ; Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62 ; Hollister v. Nowlen, 19 Wend. (N. T.) 234, 32 Am. Dec. 455 ; Hannibal R. Co. v. Swift, 12 Wall. 263, 20 L Ed. 423 ; Saltonstall v. Stockton, Taney, 11 Fed. Cas. No. 12,271 ; Indianapolis, P. & C. Ry. Co. v. Rinard, 46 Ind. 293 ; Lake Erie & W. R. Co. v. Acres, 108 Ind. 548, 9 N. E. 453; Mershon v. Hobensack, 22 N. J. Law, 372 ; Baltimore & O. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052; Story v. Norfolk & S. R. Co., 133 N. C. 59, 45 S. E. 349; Run- yan v. Central R. Co. of New Jersey, 65 N. J. Law, 228, 47 Atl. 422 ; BEN- NETT v. DTJTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322: Winnegar's Adm'r v. Central Pass. Ry. Co., 85 Ky. 547, 4 S. W. 237. See also Birmingham Ry., Light & Power Co. v. Anderson, 3 Ala. App. 424, 57 South. 103 ; Louisville & N. R. Co. v. Brewer, 147 Ky. 166, 143 S. W. 1014, 39 L. R. A. (N. S.) 647, Ann. Cas. 1913D, 151 ; Renaud v. New York, N. H. & H. R. Co., 210 Mass. 553, 97 N. E. 98, 38 L. R. A. (N. S.) 689. o BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322 ; Indianapolis, P. & C. Ry. Co. v. Rinard, 46 Ind. 293 ; Atwater v. Del- aware, L. & W. Ry. Co., 48 N. J. Law, 55, 2 Atl. 803, 57 Am. Rep. 543; Zack- ery v. Mobile & O. R. Co., 75 Miss. 751, 23 South. 435, 41 L. R. A. 385, 65 Am. St. Rep. 617 ; Ford v. East Louisiana R. Co., 110 La. 414, 34 South. 585 ; Eea- sor v. Paducah & Illinois Ferry Co., 152 Ky. 220, 153 S. W. 222, 43 L. R. A (N. S.) 820. § 175) DUTY TO ACCEPT AND CARRY PASSENGERS , 563 service, and the vital relation of such service to the general interest of the public, afford such ample warrant for this rule that the courts have not been slow in its enforcement. The analo- gies of the innkeeper e . and common carrier of goods 7 are so ad- mirably applicable here that the general right of a proper person suitably applying to sue a common carrier refusing to accept and transport him requires no extended discussion. Who May be Refused The right of a person to be accepted by the common carrier, as in the case of the innkeeper, is subject to the qualification that he must be a proper person. 8 Again, this right of the carrier to ex- clude from his vehicles those manifestly unfit is essentially a deriv- ative right growing out of the carrier's duty to secure the comfort and safety of the other passengers. In this connection substan- tially the same considerations apply as in the case of the innkeeper.* Accordingly, it is not only the right, but the duty, of the carrier to exclude those who may be reasonably expected to injure or unduly annoy the passengers of the carrier. 10 Thus the carrier is not bound to carry one fleeing from justice, or one going upon the vehicle to assault a passenger, 11 to commit larceny or robbery, to interfere with the proper regulations of the company, or to commit any crime. Nor is a carrier bound to carry persons who are drunk 12 and disorderly, 18 or infected with con- « See ante, § 94. 7 See ante, § 109. « Freedon v. New York Cent. & H. R. R. Co., 24 App. Div. 306, 48 N. Y. Supp. 584; Story v. Norfolk & S. R. Co., 133 N. C. 59, 45 S. E. 349; Steven- son v. West Seattle Land & Imp. Co., 22 Wash. 84, 60 Pae. 51 ; Meyer v. St. Louis, I. M. & S. R. Co., 54 Fed. 116, 4 C. C. A. 221; Daniel v. North Jersey St. Ry. Co., 64 N. J. Law, 603, 46 Atl. 625. » See ante, §§ 94, 95. io O'Neill v. Lynn & B. R. Co., 155 Mass. 371, 29 N. B. 630; Freedon v. New York Cent. & H. R. R. Co., 24 App. Div. 306, 48 N. Y. Supp. 584 ; Story v. Norfolk & S. R. Co., 133 N. C. 59, 45 S. E. 349. See cases cited in succeed- ing notes. The carrier may decline to receive one who refuses to comply with its reasonable regulations. Renaud v. New York, N. H. & H. R. Co., 210 Mass. 553, 97 N. E. 98, 38 X. R. A. (N. S.) 689 ; Daniel v. North Jersey St Ry. Co., 64 N. J. Law, 603, 46 Atl. 625. ii BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Car- riers, 322. 12 Pittsburgh, C. & St L. Ry. Co. v. Vandyne, 57 Ind. 576, 26 Am. Rep. 68; Wills v. Lynn & B. R. Co., 129 Mass. 351 ; Story v. Norfolk & S. R. Co., 133 is VINTON v. MIDDLESEX R. CO., 11 Allen (Mass.) 304, 87 Am. Dec. 714, Dobie Cas. Bailments and Carriers, 316 ; Pittsburg & C. R. Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424; PITTSBURGH, F. W. & C. RY. CO. v. HINDS, 53 Pa. 512, 91 Am. Dec. 224, Dobie Cas. Bailments and Carriers, 334 ; Pitts- burgh, C. & St. L. R. Co. v. Vandyne, 57 Ind. 576, 26 Am. Rep. 68; Flint v. Norwich & N. Y. Transp. Co., 34 Conn. 554, Fed. Cas. No. 4,873. 564 LIABILITIES OF COMMON CARRIER OF PASSENGERS (Ch. 18 tagious diseases. 14 The carrier is not bound to accept persons who intend to use his vehicle for an unlawful or illegitimate purpose, such as gambling. 15 And a passenger may be refused if his arrival at the place of destination would excite violence and disorder. 1 ' So, too, the carrier may exclude unaccompanied blind persons when they are not qualified to travel alone, 17 and insane persons under the same circumstances. 1 * Nor is there any obligation to carry one whose ostensible business on the carrier's conveyance is to in- jure its business by soliciting for a rival line. 1 " A woman, however, cannot be refused merely because of previous unchastity, when there i is nothing to indicate that she will misbehave while on the carrier's vehicle." Using Vehicle of Carrier for Business The duty of the carrier in this regard is limited to furnishing transportation; it owes no duty to furnish to any person the op- portunity of carrying on his business on its conveyances. 21 A car- rier of passengers is not bound to furnish traveling conveniences for those who wish to engage on their vehicles in the business of selling books, papers, or articles of food, or in the business of re- ceiving and distributing parcels or baggage, 22 nor even to permit N. C. 59, 45 S. K 349; Freedon v. New York Cent. & H. R. Co., 24 App. Div. 306, 48 N. Y. Supp. 584 ; Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108, 14 Am. Rep. 190; Pittsburg & C. R. Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424. But not slight intoxication. Pittsburgh, C. & St L. R. Co. v. Vandyne, 57 Ind. 576, 26 Am. Rep. 68 ; Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108, 114, 14 Am. Rep. 190; Milliman v. New York Cent & H. R. Co., 66 N. Y. 642. 1* Walsh v. Chicago, M. & St. P. Ry. Co., 42 Wis. 23, 24 Am. Rep. 376. i» Thurston v. Union Pac. R Co., 4 Dill. 321, Fed. Cas. No. 14,019. i« Pearson v. Duane, 4 Wall. (U. S.) 605, 18 L. Ed. 447. "Zackery v. Mobile & O. R. Co., 75 Miss. 751, 23 South. 435, 41 L. B. A. 385, 65 Am. St. Rep. 617; Denver & R. G. R. Co. v. Derry, 47 Colo. 584, 108 Pac. 172, 27 L. R. A. (N. S.) 761 ; Illinois Cent R. Co. v. Allen, 121 Ky. 138, 89 S. W. 150, 28 Ky. Law Rep. 108, 11 Ann. Cas. 970. is Meyer v. St. Louis, I. M. & S. R. Co., 54 Fed. 116, 4 C. C. A. 221; Owens v. Macon & B. R. Co., 119 Ga. 230, 46 S. B. 87, 63 L. R. A. 946 ; Louisville, & N. R. Co. v. Brewer, 147 Ky. 166, 143 S. W. 1014, 39 L. R, A. (N. S.) 647, Ann. Cas. 1913D, 151. is Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258. 20 Brown v. Memphis & C. R. Co. (C. C.) 7 Fed. 51. In Reasor v. Paducah & Illinois Ferry Co., 152 Ky. 220, 153 S. W. 222, 43 L. R. A. (N. S.) 820, it was held that the carrier could not refuse a sober and orderly passenger merely because he had been disorderly on a former trip. 2i See cases cited in the two succeeding notes. 22 Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258 ; Com. v. Power, 7 Mete. (Mass.) 596, 41 Am. Dec. 465 ; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465; The D. R. Martin, 11 Blatchf. 233, Fed. § 175) DUTY TO ACCEPT AND CAEET PASSENGEES 565 the transaction of this business in its vehicles, when this interferes with its own interests. If a profit may arise from such business, the benefit of it belongs to the carrier, which is entitled to the ex- clusive use of its vehicles for such purposes. 28 The sale or leasing of these rights to individuals, and the exclu- sion of others besides the privileged individuals therefrom, come under the head of reasonable regulations, which the courts recog- nize and enforce. The right of transportation, which belongs to all who desire it, does not carry with it a right of carrying on a traffic or of conducting a business. One violating such a rule of the car- rier may be ejected from the carrier's vehicle. 24 Insufficient Accommodations The carrier of passengers is not bound to receive any one for transportation after his accommodations are exhausted and he has no more room. 25 But, if the carrier sells tickets to more persons than he can carry, he is liable for breach of his contract. 26 The carrier, however, must provide facilities for the traffic which he rea- sonably had a right to expect, 27 and there are statutes to this effect in some of the states. 28 There is no such duty, however, when the traffic is unforeseen and somewhat unprecedented. 29 And even if the traffic, though unusually large, is foreseen, and particularly if lasting but for a short time, the carrier is not liable if it would un- der the circumstances be unreasonable to require the carrier to pro- vide facilities adequate for handling the traffic. 80 The carrier, too, must attend to the quality of its vehicles and must furnish conveyances reasonably adapted to the comfort and Oas. No. 1,030; Barney v. Oyster Bay & H. Steamboat Co., 67 N. T. 301, 23 Am. Rep. 115; Smallman v. Whitter, 87 111. 545, 29 Am. Rep. 76. 23 See cases cited in preceding note. 24 The D. R. Martin, 11 Blatchf. 233, Fed. Cas. No. 1,030. 26 Chicago & N. W. R. Co. v. Carroll, 5 111. App. 201 ; Evansville & C. R. Co. v. Duncan, 28 Ind. 441, 92 Am. Dec. 322. The underlying idea here is that of the carrier's undertaking to devote merely those facilities that he has to the service. See 1 Wyinan, Public Service Corporations, § 791. 26 The Pacific, 1 Blatchf. 569, Fed. Cas. No. 10,643 ; Hawcroft v. Railway Co., 8 Eng. Law & Eq. 362; Williams v. International & G. N. R. Co., 28 Tex. Civ. App. 503, 67 S. W. 1085. 2T Lafayette & I. R. Co. v. Sims, 27 Ind. 59. See 1 Wyman, Public Service Corporations, § 797. See, also, Harmon v. Flintham, 196 Fed. 635, 116 C. C. A. 309. 28 See 1 Fetter, Passenger Carriers, § 249. 2» Louisville, N. O. & T. Ry. Co. v. Patterson, 69 Miss. 421, 13 South. 697, 22 L. R. A. 259 ; Gordon v. Manchester & L. R. R., 52 N. H. 596, 13 Am. Rep. 97; 2 Hutch. Carr. § 1114. 3° Pursell v. Richmond & D. R. Co., 108 N. C. 414, 12 S. E. 954, 956, 12 L. R. A. 113 ; Chicago & A. R. Co. v. Dumser, 161 111. 190, 43 N. E. 698. 566 LIABILITIES OF COMMON CARRIER OF PASSENGERS (Ch. IS convenience of the passenger, according to the method of transpor- tation which the carrier adopts. 31 Thus, in winter, the carrier's vehicles should be suitably heated. 32 The passenger, too, is enti- tled to a seat. 33 Unless a seat is given to the passenger, he may either travel and pay fare without the seat, or he may refuse to pay without a seat, in which case he must, at the first reasonable chance, leave the carrier's conveyance. 34 He can then sue the car- rier. 36 He cannot, however, insist on traveling free merely because he has no seat. 38 When, as is usually the case, the carrier has provided separate and sufficient trains or conveyances for the transportation of goods and passengers, the passenger cannot ordinarily insist on being carried on freight trains or vehicles. 37 If the carrier, though, has held itself out as carrying passengers on freight trains, then it may render itself liable by failing to live up to this holding out, in re- fusing to accept one suitably applying for transportation on such trains. 38 These principles are also true as to special trains, 38 or trains run owing to some emergency. 40 Carriers are bound to carry only those who can and will pay for si Hunter v. Atlantic Coast Line R. Co., 72 S. C. 336, 51 S. E. 860, 110 Am. St. Rep. 605 ; Wood v. Georgia Railroad & Banking Co., 84 Ga. 363, 10- S. E. 967. 32 Ft Worth & D. C. Ry. Co. v. Hyatt, 12 Tex. Civ. App. 435, 34 S. W. 677; Hastings v. Northern Pac. R. Co. (C. C.) 53 Fed. 224; Taylor v. Wabash R. Co. (Mo.) 38 S. W. 304, 42 L. R. A. 110. 83 Camden & A. R. Co. v. Hoosey, 99 Pa. 492, 44 Am. Rep. 120 ; Louisville N. O. & T. Ry. Co. v. Patterson, 69 Miss. 421, 13 South. 697, 22 L. R. A. 259; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5, 4 Am. St. Rep. 776 ; New York, L. E. & W. R. Co. v. Burns, 51 N. J. Law, 340, 17 Atl. 630. 34 Hardenbergh v. St. Paul, M. & M. Ry. Co., 39 Minn. 3, 38 N. W. 625, 12- Am. St. Rep., 610; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5, 4 Am. St. Rep. 776 ; Davis v. Kansas City, St. J. & C. B. R. Co., 53 Mo. 317, 14 Am. Rep. 457 ; St. Louis, I. M. & S. Ry. Co. v. Leigh, 45 Ark. 368, 55 Am. Rep. 558. Cf. Louisville, N. O. & T. R. Co. v. Patterson, 69 Miss. 421, 13- South. 697, 22 L. R. A. 259. as Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5, 4 Am. St. Rep. 776; Hardenbergh v. St. Paul, M. & M. Ry. Co., 39 Minn. 3, 38 N. W. 625,. 12 Am. St. Rep. 610. so Davis v. Kansas City, St. J. & C. B. R. Co., 53 Mo. 317, 14 Am. Rep. 457 ; St. Louis, I. M. & S. Ry. v. Leigh, 45 Ark. 368, 55 Am. Rep. 558. 87 Cleveland, C, C, & St. L. Ry. Co. v. Best, 169 111. 301, 48 N. E. 684; Roberts v. Smith, 5 Ariz. 368, 52 Pac. 1120; Gardner v. St. Louis & S. F. R. Co., 117 Mo. App. 138, 93 S. W. 917. as Reed v. Great Northern Ry. Co., 76 Minn. 163, 78 N. W. 974; MeCook v. Northrup, 65 Ark. 225, 45 S. W. 547 ; Thomas v. Chicago & G. T. Ry. Co.,. 72 Mich. 355, 40 N. W. 463. so Southwestern R. R. Co. v. Singleton, 66 Ga. 252. *o Du Bose v. Louisville & N. R. Co., 121 Ga. 308, 4S S. E. 913. § 176) DUTY TO FUBNISH EQUAL ACCOMMODATIONS 567 their transportation. This payfnent may be demanded in advance as a condition precedent to accepting a person as a passenger. 41 Again, the analogy of the innkeeper * 2 and common carrier of goods * 3 is clear, and this right is again a corollary of the carrier's duty to accept all proper persons who apply. 'This method of safe- guarding the payment of fare is particularly important here, since, when the passenger has no baggage, there is nothing to which the carrier's lien for his fare may attach.** Waiver of Right to Refuse A carrier should, in the first place, refuse to sell, tickets to per* sons whom it has the right to refuse to carry, when it wishes to exercise that right, and should exclude them if they attempt to en- ter the vehicle without tickets. If a ticket has been inadvertently sold to such person, the carrier may still rescind the contract for transportation, but it should then tender a return of the money paid for the ticket. The ticket holder, however, may, under any circumstances, recover the amount he paid for the ticket. 45 If the carrierj at the time, knew facts which would justify a refusal to carry, his selling of a ticket to such a person is a waiver of the right to refuse him, 46 and this is also true of any other acceptance of the passenger by the carrier. DUTY TO FURNISH EQUAL ACCOMMODATIONS TO PASSENGERS 176. The common carrier of passengers is bound, not only to trans- port all proper persons who apply, but also, in general, to furnish accommodations that are equal. The carrier, however, may by regulations make reasonable dis- criminations in the accommodations furnished, based on — (a) Sex, kind of ticket, or length of ticket. (b) Race or color. 4i Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62; Tarbell v. Central Pac. R. Co., 34 Cal. 616; Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) 220; Ker v. Mountain, 1 Esp. (Eng.) 27. A strict tender of fare is not necessary. Day v. Owen, supra; Nashville & C. R. Co. v. Messino, supra; Tarbell v. Central Pac. R. Co., supra; Pickford v. Railway Co., 8 Mees. & W. (Eng.) 372. 42 See ante, §§ 94, 99. 48 See ante, §§ 113, 147. 44 See Ramsden v. Boston & A. R. Co., 104 Mass. 117, 6 Am. Rep. 200 ; Roberts v. Koehler (C. C.) 30 Fed. 94. 45 Thurston v. Union Pac. R. Co., 4 Dill. 321, Fed. Cas. No. 14,019. 4e Hannibal & St. J. R. Co. v. Swift, 12 Wall. 262, 20 L. Ed. 423 ; Pearson v. Duane, 4 Wall. 605, 18 L. Ed. 447; Tarbell v. Central Pac. R. Co., 34 Cal. 616. 668 LIABILITIES OF COMMON CARRIER OF PASSENGERS (Ch. 18 The separation by the carrier of the white and colored races has also, in many states, been made the subject of statutory regulation. The general rule, applicable alike to common carriers of pas- sengers as well as of goods, requires, as to the service furnished, not only universality, but equality. The passenger carrier does not complete its full duty merely by serving all who apply, but it must serve them equally well, without unfair discrimination in fa- vor of one or against another.* 7 This, too, arises out of the public nature of the carrier's calling, and his relation to the public that he professes to serve. Discrimination by Carrier's Regulation Based on Sex, Kind of Ticket, or Length of Journey The carrier's regulations frequently make differences in the ac- commodations furnished depend upon other classifications of the passengers save that of race or color. These regulations are valid, provided such classification be reasonable. Thus, a carrier may provide separate cars for ladies, or for ladies and their male escorts, and may exclude from these cars all other passengers.* 8 A carrier, too, may properly provide more luxurious accommodations for passengers traveling on first-class tickets than for others,*' or for persons bound for distant points. 00 Again, carriers may provide specially equipped chair cars, be- sides the coaches for holders of first-class tickets, and charge an additional fee for the use of such cars. 61 And many railroads have " Atwater v. Delaware, L. & W, R. Co., 48 N. J. Law, 55, 2 Atl. 803, 57 Am. Rep. 543; Indianapolis, P. & O. Ry. Co. v. Rinard, 46 Ind. 293; BEN- NETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Zackery v. Mobile & O. R. Co., 75 Miss. 751, 23 South. 435, 65 Am. St. Rep. 617; Central R. Co. of New Jersey v. Green, 86 Pa. 427, 27 Am. Rep. 718; West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec 744. *s Chicago & N. W. Ry. Co. v. Williams, 55 111. 185, 8 Am. Rep. 641; Chil- ton v. St. Louis & I. M. Ry. Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269; Peck v. New York Cent. & H. R. R. Co., 70 N. T. 587; Bass v. Chicago & N. W. Ry. Co., 36 Wis. 450, 17 Am. Rep. 495; Id., 39 Wis. 636, and Id., 42 Wis. 654, 24 Am. Rep. 437 ; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5, 4 Am. St. Rep. 776; Brown v. Memphis & C. R. Co. (C. C.) 7 Fed. 51. And see Marquette v. Chicago & N. W. R. Co., 33 Iowa, 562. Sufficient ac- commodations for other passengers must be provided elsewhere. Bass v. Chicago & N. W. Ry. Co., supra. *» Wright v. Central Ry. Co., 78 Cal. 360, 20 Pac 740; St Louis & A. T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711 ; Nolan v. New York, N. H. & P. R. Co., 41 N. Y. Super. Ct. 541. »o St. Louis & A. T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711. »i St. Louis & A. T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711; Wright v. Central Ry. Co., 78 Cal. 360, 20 Pac 740. , § 176) DUTT TO FTJKNISH EQUAL ACCOMMODATIONS 569 put on trains of unusual speed and luxury, requiring passengers traveling on these trains to pay a special fee beyond the usual first- class fare. Discrimination Based on Race or Color by Regulation of the Carrier The carrier of passengers, as well as the carrier of goods, 62 has the power to make proper regulations for the conduct of his busi- ness. 68 And these regulations, when reasonable and uniform in their operation, are valid and binding. 64 The general subject of the regulations of the passenger carrier will subsequently be dis- cussed. It is introduced here merely as affecting the separation of the races. Many carriers have adopted regulations under which separate ac- commodations are provided for white and colored passengers, each race being restricted to the accommodations provided for that race. Regulations making this discrimination have been very generally upheld as being entirely reasonable, being based, not on arbitrary caprice, but rather on principles which the law recognizes as just, equitable, and founded on good public policy. 60 The accommoda- tions provided for colored passengers, however, must be substan- tially equal to those provided for white passengers. 66 The validity of such a regulation has recently been upheld by the United States Supreme Court, in the absence of a federal statute on the subject, even in the case of interstate passengers. 67 Statutes Concerning the Separation of the Races by the Carrier A number of statutes have been passed both for and against such separation of the white and colored races. Probably the best known of these was the famous "Civil Rights Bill," passed by 62 Ante, § 124. 53 Coyle v. Southern Ry. Co., 112 Ga. 121, 37 S. E. 163; Gray v. Cincinnati & S. R. Co. (C. C.) 11 Fed. 683 ; Smith v. Chamberlain, 38 S. C 529, 17 S. B. 371, 19 L. R. A. 710. See post. »* Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349; Mc- Millan v. Federal St P. V. Pass. Ry Co., 172 Pa. 523, 33 Atl. 560 ; Faber v. Chicago Great Western Ry. Co., 62 Minn. 433, 64 N W. 918, 36 L. R A. 789. »s Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62; West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744; Chicago & N W. Ry. t. Williams, 55 111. 185, 8 Am. Rep. 641; Chilton v. St. Louis & 1. M. Ry Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269; Houck v Southern Pac. Ry. Co (C. C ) 38 Fed. 226; The Sue (D. C.) 22 Fed. 843; Logwood v. Memphis & C R. Co. (C. C.) 23 Fed. 318. so Murphy v. Western & A. R. R. (C. C.) 23 Fed. 637; Britton v. Atlanta & C. A. L. Ry. Co., 88 N. C. 536, 43 Am. Rep. 749; Chesapeake & O. & S. W. R. Co. v. Wells, 85 Tenn. 613, 4 S. W. 5. See, also, cases cited in preced- ing note " Chiles v. Chesapeake & O. R. Co., 218 U. S. 71, 30 Sup. Ct. 667, 54 L. Ed. 936, affirming 125 Ky. 299, 101 S. W. 386, 11 L. R. A. (N. S.) 268. 570 LIABILITIES OF COMMON CARRIER OF PASSENGERS (Ch.lg the federal Congress in 1875, substantially declaring that colored citizens should have the same accommodations at inns, public con- veyances, etc., that are given to white people. This act, however, the federal Supreme Court, in the celebrated "Civil Rights Cas- es," 68 held to be unconstitutional and void. Somewhat similar statutes have been passed by some of the states, both in the North and South, particularly during the years immediately following the Civil War. 59 Such a statute of Louisiana was declared unconsti- tutional by the United States Supreme Court, when applied to a steamboat engaged in interstate commerce. 60 In recent years, particularly in the South, many statutes have been passed by states requiring the separation of the races and the furnishing by the carrier of separate vehicles for white and colored passengers. 61 These statutes have been sustained as to intrastate commerce. 62 Their validity, though passed on by state courts, 63 seems never to have been directly passed on by the United States Supreme Court, when applicable to interstate traffic* »8 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835. ■• See 1 Fetter, Passenger Carriers, § 258. «o Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547. ei See 1 Fetter, Passenger Carriers, § 257; 2 Hutch. Carr. § 972; Judson Interstate Commerce (2d Ed ) § 30. ea Louisville, N. O. & T. R. Co. v. Mississippi, 133 TJ. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784 ; Chesapeake & O. R. Co. v. Kentucky, 179 U. S. 388, 21 Sup. Ct. 101, 45 L. Ed. 244; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256; McCabe v. Atchison, T. & S. F. R. Co, 186 Fed. 966, 109 C. C. A. 110; Smith v. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432; Ohio Val. Ry 's Receiver v. Lander, 104 Ky. 431, 47 S. W. 344, 882; Id., 48 S. W. 145, 20 Ky. Law Rep. 913. as Thus as to interstate commerce such statutes were held to be void in Carrey v. Spencer (Sup.) 36 N. Y. Supp. 886; State ex rel. Abbott v. Judge, 44 La. Ann. 770, 11 South. 74; Hart v State, 100 Md. 595, 60 Atl. 457. in Smith v. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432, the decision in Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547, is Reviewed, and the statute, though applicable both to intrastate and interstate passengers, is upheld. * Such a. case seems now to be pending in the United States Supreme Court in McCabe et al. v. Atchison, T. & S. F. Ry. Co., being number 111 on the Oc- tober Term, 1913. In the same case in the United States Circuit Court of Ap- peals for the Eighth Circuit it was held that such a statute, if construed as applicable to interstate commerce, would be unconstitutional ; so the statute was construed as applicable solely to intrastate commerce and was therefore held to be valid. McCabe et al. v. Atchison, T. & S. F. Ry. Co. et al., 186 Fed. 966, 109 C. C. A. 110. § 177) LIABILITY FOB DELAY IN TRANSPORTING PASSENGEE8 571 LIABILITY FOR DELAY IN TRANSPORTING PAS- SENGERS 177. The common carrier of passengers is liable for damage proxi- mately due to delay in transporting the passenger after the transportation has begun, when such delay is caused by the carrier's negligence, or failure to exercise reasonable care. The carrier is also liable for his failure to exercise reasonable dil- igence to transport passengers in accordance with his pub- lished time-table. Delay in Transportation Once the transportation is begun, the carrier must use due dili- gence to complete it within a reasonable time. 64 What is due dili- gence here, and what is a reasonable time, are, of course, relative questions, depending for their solution on varying facts and circum- stances, among which the method of conveyance is highly impor- tant. 66 For delays due to other causes than the carrier's negligence, which is here the failure of the carrier to use reasonable or due care, the carrier is not liable, in the absence of a special contract to that effect. 66 The carrier may, if he wishes, bind himself by special contract to carry absolutely within a certain time. In such cases (which are rare) the carrier is liable according to the tenor of his contract, so that even the act of God will not excuse him. 67 Conforming to Published Time-Table The carrier, by publishing his time-tables, informs the public of the time at which his conveyances may be reasonably expected to ei Weed v. Panama R. Co., 17 N. Y. 362, 72 Am. Dec. 474 ; Williams v. Vanderbilt, 28 N. Y. 217, 84 Am. Dec. 333 ; Hamlin v. Railway Co., 1 Hurl. & N. (Eng.) 408 ; Eddy v. Harris, 78 Tex. 661, 15 S. W. 107, 22 Am. St. Rep. 88; Wilsey v. Louisville & N. R. Co., 83 Ky. 511; Milwaukee & M. R. Co. v. Finney, 10 Wis. 388 ; Latour v. Southern Ry., 71 S. C. 532, 51 S. E. 265. « 5 See cases cited in notes 64 and 66. «« Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Van Buskirk v. Roberts, 31 N. Y. 661; Alabama & V. Ry. Co. v. Purnell, 69 Miss. 652, 13 South. 472; Cobb v. Howard, 3 Blatchf. 524, Fed. Cas. No. 2,924; Hobbs v. Railway Co., L. R. 10 Q. B. (Eng.) Ill; Van Horn v. Templeton, 11 La. Ann. 52; Houston, E. & W. T. Ry. Co. v. Rogers, 16 Tex. Civ. App. 19, 40 S. W. 201. <" Walsh v. Chicago, M. & St P. Ry. Co., 42 Wis. 23, 24 Am. Rep. 376. And see, for other instances of special contract, Williams v. Vanderbilt, 28 N. Y. 217, 84 Am. Dec. 333; Ward v. Vanderbilt, 4 Abb. Dec. (N. Y.) 521; Watson v. Duykinck, 3 Johns. (N. Y.) 335 ; Dennison v. The Wataga, 1 Phila. (Pa.) 468, Fed. Cas. No. 3,799; Brown v. Harris, 2 Gray (Mass.) 359; Porter v. The New England No. 2, 17 Mo. 290; West v. The Uncle Sam, 1 McAll. 505. Fed. Cas. No. 17,427. 572 LIABILITIES OF COMMON CARRIER OF PASSENGERS (Ch. 18 arrive at, and depart from, the various places on his line. Upon this information the public necessarily acts. This, however, does not constitute a contract between the carrier and passenger that the carrier will live up to the schedule. 88 Nor is the carrier a war- rantor as to compliance with his time-table." He must, however, at least use reasonable diligence to comply with such schedule, which he has published and on which the public must rely. 70 The law on this point is thus admirably stated in the headnote to a lead- ing case : 7l "The publication of a time-table, in common form, imposes upon the railroad company the obligation to use due care and skill to have the trains arrive and depart at the precise mo- ments indicated in the table; but it does not import an absolute and unconditional engagement for such arrival and departure, and does not make the company liable for want of punctuality which is not attributable to their negligence." When changes are made in a time-table, the same publicity should be given to these changes as to the original publication." If the regular time-table was published in a newspaper, and no notice of a change is given except through the posting of a notice in the carrier's office, this would not be sufficient to excuse the car- rier. 78 If the scheduled time is varied, and a train is detained after the appointed time, for the mere convenience of the carrier or a por- tion of his expected passengers, a person who presents himself at the advertised hour, and demands a passage, is not bound by the change, unless he has had reasonable notice of it. But, even after the sale of a ticket, the carrier has a right, by giving reasonable notice, to vary the time of running his trains or other vehicles. 7 * 68 SEARS v. EASTERN R. CO., 14 Allen (Mass.) 433, 92 Am. Dec. 780, Dobie Cas. Bailments and Carriers, 324; Gordon v. Manchester & L. R. R Co., 52 N. H. 596, 13 Am. Rep. 97; Houston, E. & W. T. Ry. Co. v. Rogers, 16 Tex. Civ. App. 19, 40 S. W. 201. 8» Gordon v. Manchester & L. R. R. Co.,