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which an ordinarily careful man uses of his own things under similar circumstances.

376. By Whom Loss is Borne.-When there is a loss of property delivered to a workman for service to be performed upon it and the workman is not at fault, the loss falls upon the owner. Indeed, it seems to be the rule that the loss follows the ownership of the property. Whether the workman could recover for the value of his services already rendered is not altogether settled. When the workman is employed to make a thing out of his own material, it is a case of sale and not one of bailment.

377. Rights of Bailee.-If a workman by a deviation from his instructions makes his work valueless, he can claim no compensation. If the article be still of some use and be received, he can claim the value of the work. If the deviation be important and the materials have lost their value the owner may abandon them and recover their value from the workman. If the deviation makes the thing more valuable and costly, the workman cannot collect for the additional cost, unless the change were assented to.

If the bailee fails to complete his work through his own fault his rights will depend upon the nature of the undertaking. If his contract is to work by the day he will be entitled to recover what his work is fairly worth after deducting all damages occasioned by his default. If his work is done under an entire contract the performance to precede the payment and is a condition thereof then he must finish the work before he is entitled to payment.

378. Liability of Third Person. It is a settled principle of law that if one contracts to render personal services for another, for a consideration, any third person who maliciously induces or compels the letter to refuse to perform such services is liable to the injured party. This rule extends impartially to every grade of service.

379. Payment by Installments.-When material is furnished by the bailor and the services of the bailee are to be paid for in installments as the work progresses and there is a loss after one or more installments have been paid, the bailor loses what he has paid, and the bailee loses pay for that portion of the work which has been done but not accepted. Houses are often built on this plan and the question often arises.

380. Lien.-A workman employed to make up materials or to alter or repair an article has a lien upon it for his pay. It seems that he does not have the right to sell it but only the right to retain it. It is therefore called a possessory lien, a mere passive right of retention.

CHAPTER XXXII.

HIRE OF CUSTODY.

381. Definition.-Hire of custody is a contract for the hire of care and attention to personal property. In this kind of bailment there is usually no labor to be performed in reference to the thing bailed, but the custody is the main object.

382. Degree of Care.-This contract is for the benefit of both parties, hence the bailee is bound to use ordinary care, and is liable for ordinary negligence.

383. Agistors.-An agistor is one who takes in domestic animals to pasture. He may take such animals as he likes, and is bound to give to them ordinary care. Should any loss or injury occur as a result of his not using proper care, he will of course, be liable. He must also

use ordinary skill in their care. He has no lien for their keeping unless by special agreement. Being their proper custodian he can bring an action in his own name against any one interfering with his possession.

384. Warehousemen.-A warehouseman is one who receives goods or merchandise to be stored for hire. He must use ordinary care, and is liable for any neglect on his part to do so. He does not insure the goods, therefore he is not liable if they perish, provided he has not been guilty of negligence. He has a lien upon the goods for his storage charges, but he cannot retain the goods for a general balance due. If the goods are claimed by another, the warehouseman delivers them to him at his peril, for he must at least make satisfactory account to the bailor. It has often been decided in all

similar classes of bailment that when a loss occurs the bailee is obliged to explain how it occurred, after which the burden of proving negligence rests on the bailor.

385. Wharfingers.-A wharfinger is the keeper of a wharf where goods are received and shipped for hire. His duties, rights and liabilities are in most respects the same as those of a warehouseman.

386. Commission Merchants.-Commission merchants and all similar agents, being bailees for hire, are required to take ordinary care of all goods entrusted to them. They are not liable for any loss by fire or robbery, or from internal decay, unless it was occasioned by

their lack of proper care.

387. Hotelkeepers.-Hotelkeepers are bound by the laws of bailment, and on account of the peculiar position of trust which they occupy, and their relation to the public, they are held to a stricter liability than the ordinary bailee for hire. In this respect the case of hotelkeepers is an exception to the usual rule of liability, where the bailment is for the benefit of both parties.

388. Duties.-A hotelkeeper is bound to accept all who present themselves, if he has the room, but he may refuse a disorderly guest. It is his duty to care for their goods with proper diligence.

389. Liabilities. -Instead of being responsible for ordinary care he is held to be an absolute insurer of the property committed to his care, except as to damage by the acts of God, the public enemy, and from the fraud or neglect of the owner himself. The hotelkeeper is responsible for the acts of his servants, and also for those of his guests, so far as they affect other guests. But he is not responsible when a loss occurs through a guest's own servant, or one who came as his companion. He is not permitted to refuse to accept the goods of his guest or to refuse to become responsible for them, but he may give notice to his guests that he will not become responsible for valuables, such as money or jewelry, unless delivered to him to be placed in the safe. If a servant of the hotelkeeper takes the luggage of a guest to carry to the cars, the hotelkeeper continues responsible for it until delivered at the cars. Whether in case of loss the burden lies on the landlord to prove proper care, or whether his negligence is presumed, has been variously decided, some States holding one way and some another. It has been decided in Illinois that the owner of

a sleeping car was not liable as an innkeeper for money stolen from a passenger.

390. Rights of Landlord:-While the landlord is obliged to receive all proper guests, if he has room, yet he may require them to pay in advance, and refuse to entertain them if they do not. He has a lien upon the goods of his guest for his bill. He has also a lien upon horses left with him for their keep.

391. Who is a Guest.-There is a distinction between an innkeeper and a boarding house keeper. An innkeeper holds himself out to entertain all travelers. The keeper of a boarding house usually makes contracts for a definite time. A guest in a public house comes without any bargain as to time, and may go when he pleases, paying only for the entertainment which he actually receives. The length of time he may remain will make no difference as to the relation he occupies-he will still be a guest. A landlord may be both an innkeeper and a boarding house keeper, and indeed it is not unusual for him to maintain both relations to different persons. The statutes of most States have regulated both inns and boarding houses, and when they have done so the common law requirements have been modified.

HIRE OF CARRIAGE.

392. Introduction. This includes that large class of contracts by which goods or chattels are to be transported from one place to another. Those who transport goods for others are called carriers. The law designates both "private carriers" and "common carriers."

393. Private Carriers.-A private carrier is one who occasionally carries goods or chattels for others. As he works for hire he is bound to use only ordinary diligence and a reasonable exercise of skill. He is not liable if the goods are stolen or burned or if they perish from their own internal decay unless it was occasioned by a lack of proper care on his part.

He may by special contract enlarge his liability even to the extent of warranty.

COMMON CARRIERS.

394. Definition. A common carrier is one whose business is to transport from place to place the goods or person of any one who may employ him., The business must be exercised as a public

employment, that is, he must hold himself out as ready to transport goods or passengers as a business. It includes railroads, express and steamboat companies as well as expressmen, street car companies and omnibus lines.

Common carriers may be carriers of goods, or of passengers, or of both. We shall first consider the common carrier of goods.

395. Duties and Obligations.-The common carrier is obliged to accept all goods that are offered to him for transportation without regard to whose they may be. In this regard his obligation resembles that of the innkeeper. This rule is a result of the public nature of his employment. He is liable to an action if he refuse to carry, but he may demand his fees in advance. He may refuse if his carriage be already full or if the goods be of a dangerous nature, or if they are not such as he carries in the known and usual course of his business. At common law he is not under obligations to charge all persons alike. He may show special favor to certain individuals by taking their freight at an unreasonably low rate without being compelled to do the same by others. He is entitled to a reasonable recompense from all. He is bound to transport with reasonable dispatch, and by the prescribed or customary route.

He is also bound to take notice if some goods are specially marked, as: "handle with care," "glass," etc.

396. May Refuse Freight.-A carrier may refuse transportation in a particular case, on the ground that his facilities are inadequate. He may also refuse transportation if the property at the particular time will be exposed on his route to extraordinary danger or to popular rage, or if he is under coercion and cannot freely exercise his vocation. A carrier is not bound to receive goods from one who is neither their owner nor the owner's agent, for he must not connive at a wrong. If he refuse wrongfully to receive goods, he is liable

to the consignor.

397. Liability.-The liability of the common carrier owing to its public nature is, like that of an innkeeper, very strict. He is held to be an absolute insurer of the safety of the goods, the only exceptions being against the "acts of God" or the "public enemies." The acts of God are such as floods, lightning or tempest and the public enemies are those with whom the nation itself is at war and not merely robbers and thieves.