of property by means of negotiable receipts, already discussed under the subject of Sales of Personal Property, apply. Another bailee of this class is the commission merchant who has received goods to sell for the owner; he is required to keep them safely until they are sold. EXAMPLES 1. Hensel left several horses and cows with Noble to pasture for him. He later attempted to remove one of the horses, but Noble refused to allow him to do so until the charges for pasturage were paid. Hensel proved that the other horses and cows were sufficient security for the payment of Noble's charges, but this proof did not entitle him to remove the horse, for an agister has a right of lien to all property in his possession until he is paid. Hensel vs. Noble, 95 Pa. St. 345. 2. Leidy placed poultry in a cold storage warehouse in good condition; but because the warehouse was kept too moist they became mouldy. The warehouseman was liable for the damage, as it was negligence to fail to keep the warehouse in fit condition for the storage of produce received. Leidy vs. I. C. Cold Storage Co., 180 Pa. St. 323. Hire by Bailor for Transportation. The owner of goods may desire to have them transported from one place to another. For this purpose he employs some person to carry them, and this person becomes a bailee of the goods while they are in his custody. Such persons are called carriers and may be either (1) private or (2) public carriers. The duties of public carriers are discussed in the next chapter on Exceptional Bailments. A private carrier is one who occasionally carries goods of another, but who does not hold himself out as a carrier of goods for the general public. He differs from the common carrier in that he has the full right to contract when and with whom he pleases, without any special regulations or duties imposed by statute. Private teaming contractors, draymen, messengers, and occasional carriers by boat, wagon, or other vehicle, come within this classification. Since they are carriers for hire their only duties are to exercise ordinary care for the preservation of the goods, to perform the services agreed upon, and to deliver the goods on payment of their charges. EXAMPLE Sackrider at the request of Allen carried a load of grain on his boat at an agreed price between two river towns. Sackrider was not regularly engaged in this business. During the journey the grain was destroyed during a storm. It was admitted that Sackrider had exercised ordinary care. If Sackrider had been a common carrier he would have been liable, but Allen was denied recovery because Sackrider was a private carrier and had used ordinary care. Allen vs. Sackrider, 37 N. Y. 341. REVIEW QUESTIONS 1. McDuffie hired a horse and buggy to drive to Durham, but drove it to Hampton, two miles from Durham. Without any fault of McDuffie, the horse was run into at Hampton and killed. Wentworth, who owned the horse and had hired it to McDuffie, sued for its value. Could he recover? Why? 2. An officer of the American District Telegraph Company hired from Walker a team and surrey for the company's business. Having completed their use he sent them back in care of a small boy, who stated he was experienced with horses. The boy was not familiar with horses, however, and the team ran away, one of the horses being injured so that it had to be shot. Can Walker recover of the American District Telegraph Company for his loss? 3. Ames stored his goods in Bates' warehouse. While making repairs upon the timbers and beams of the warehouse, Bates removed some of the goods, but allowed Ames' to remain. During the process of repair, which was being done by competent workmen, the building collapsed and Ames' goods were damaged. Ames sued Bates for the amount of loss. Could he recover? Why? 4. Cox placed a box of dry goods on a dock belonging to O'Reilly to be carried on one of O'Reilly's boats, but neglected to give any notice to O'Reilly of the delivery of the goods. The goods were lost and Cox sued O'Reilly for their value. Can he recover? 5. Schmidt stored 99 tons of hemp with Blood, a warehouseman. At various times he received all but six tons, which Blood refused to deliver until all the charges for storage on the entire lot of hemp had been paid. Schmidt sued to recover the six tons, claiming that Blood had lost any lien which he might have had by allowing a part of the hemp to leave his possession. He also offered to pay Blood the storage charges on six tons of hemp. May he recover it? Why? CHAPTER XXXII EXCEPTIONAL BAILMENTS 303. Introduction. There are two types of bailees regarding whom the ordinary rules concerning the bailee's rights and duties in respect to the thing bailed do not apply. These are (1) inn-keepers, and (2) common carriers. The exceptional rules applying to these two classes of bailees also apply in general to the operations of telegraph and telephone companies though neither are bailees in the strict sense of the term. An Inn-keeper is one who offers to accommodate all comers with the conveniences usually supplied to travelers. One is not an inn-keeper when he provides occasional entertainment only; nor is one who keeps a restaurant and provides food only. Neither is the keeper of a lodging house who makes separate contracts with each guest and reserves the right to refuse entertainment arbitrarily; nor are sleeping car companies considered to be inn-keepers. A steamboat company may or may not be an inn-keeper, depending entirely upon all the circumstances of its business. Who are Guests. Those who take accommodations at an inn as transients, not including those who make the inn their permanent home, are rated as guests. This is true even though they be given special rates, as is frequently done with commmercial travelers, ball players, or other frequent patrons. 304. Rights and Duties of Inn-Keepers. The inn-keeper having taken upon himself a public employment must serve the public. His first duty is to receive to his inn as guests withou discrimination such travelers as may ask for entertainment. He cannot select his guests. This is a duty imposed by law, and if when he has adequate accommodations, an inn-keeper refuses without cause to receive a guest, he is liable to compensate the person refused, in damages. An inn-keeper may, however, justify a refusal by showing that his accommodations were already exhausted or that the person refused was without funds to pay for the accommodations; was disreputable, drunken, or disorderly; was affected with a contagious disease; or resorted to the inn for an illegal purpose. As soon as a person becomes a guest, the inn-keeper under the common law practically insures his safety and the safety of his personal property of the kind which travelers usually carry with them. This liability does not depend at all upon whether the inn-keeper has used care to prevent the loss, or injury, but he is liable regardless of his own carefulness. The only exceptions to such liability, under the common law, are when the loss or injury is caused (1) by an inevitable accident, as a flood, called an act of God, (2) by the act of a public enemy, or (3) by the negligence of the guest. These rules have been somewhat relaxed by statute in the several states, though there is no uniformity in this regard. It is, however, now quite generally established that the inn-keeper is freed from responsibility for damage occasioned by accidental fire, not due to his fault, or by other similar accidents. He is also allowed to limit his liability by special contract with the guest to that of an ordinary bailee for hire. For example, by giving notice to the guest that he will be responsible for valuables only when deposited in his safe, the inn-keeper may limit his liability in that regard. He cannot, however, escape liability for damage or loss to wearing apparel, or articles usually worn on one's person. Some statutes limit the total amount of an inn-keeper's liability to any one guest. The inn-keeper has a lien on the property of a guest for the payment of the bill of the guest. EXAMPLE Caswell, a traveling salesman for DeWald & Co., left a valise containing $235 in the cloak room of a hotel, from which it was stolen. The hotel had no checking room, nor safe for the keeping of valuables. Recovery was allowed against the hotel, even though the clerk had not been notified of the contents of the valise, and regardless of the fact that it was not shown that the hotel keeper had been guilty of a want of ordinary care. Bowell vs. De Wald & Co., 2 Ind. App. 303. 305. A Common Carrier is one who regularly undertakes for hire to transport goods or passengers between different places, for such as may choose to employ him. To be a common carrier one must (1) carry on a public employment and (2) his business must be one of carriage for hire. As a consequence of his occupation he is then required (1) to carry any goods which may be offered of the kind he professes to carry, (2) by the means and over the route he has established; and upon his refusal to carry such goods must compensate the person refused in damages. For convenience the carriers of goods and of passengers are treated separately. To Accept 306. Rights and Duties of Carrier of Goods. Goods. The common carrier, being engaged in a public undertaking, is obliged to accept for carriage all goods offered him for transportation which come within the limits of the classes of goods he represents himself as carrying. A freight-carrying road cannot be compelled to carry money, nor an express company grain in bulk, or iron ore, which are properly carried by companies with suitably constructed cars. But the carrier cannot discriminate between persons, and must render the same services alike to all who request them. The carrier must exert reasonable dispatch, and must take notice if the goods are specially marked, as "Glass," "Perishable," and use suitable care to prevent loss or injury. Transportation may be refused, however, on the ground that the facilities are inadequate, or on account of special conditions outside of the carrier's control. EXAMPLES 1. Rae offers grain to a railroad company to carry from Rockford to Chicago. The company at first refused to furnish cars, though it finally did so, but after providing them, delayed the shipment. Rae sued for damages and recovered the difference between the market price of the grain when it was finally delivered and the market price when it should have been delivered if it had been shipped promptly upon receipt. G. & C. U. R. R. Co. vs. Rae, 18 Ill. 468. 2. The Milwaukee Malt Extract Company offered a railroad a consignment of boxes labeled "beer," directed to a city in Iowa, which state had a statute forbidding the sale or delivery of liquor within the state, and providing a penalty for its violation. The railroad refused to accept the shipments |