maintain with Lord Holt, that if the bailee be guilty of an act of gross negligence in regard to his own goods as well as those bailed to him, and they are both lost, he cannot be held liable.20 And whether conclusive or not, the fact that he had at the same time lost his own goods would be a strong argument not only of good faith but of diligence, unless it were shown that he was an "idle, careless or drunken fellow," who took no care of his own goods; and even then, the bailor would perhaps deserve to lose his goods for trusting him. But if he lost the bailor's goods without losing his own, which he was at the same time carrying and which were equally the subjects of theft or robbery, it would, on the other hand, be very strong evidence of bad faith or negligence.21

Sec. 31. (§ 31.) No presumption of negligence. The mandatary is entitled to the benefit of that rule of law by which every man is to be presumed to have done his duty until the contrary is shown. Where, therefore, such a bailee received a letter containing money which he promised to deliver to an. other, and there was no evidence accounting for its non-delivery, it was held that the most that could be presumed against the bailee was that it had been lost by his gross negligence, and that a tort under such circumstances, by its appropriation to his use, would not be presumed so as to prevent a recovery in an action of assumpsit.22 And in another case against a mandatary for carriage, it was ruled that the plaintiff, in order to recover, must show either an appropriation by the defendant to his own use of the money or property bailed, or that he had demanded it and that the bailee had refused to deliver it or to give any satisfactory account of its loss, 23

Sec. 32. (§ 32.) Question of gross negligence, how determined. What is or is not gross negligence in such a bailee is sometimes a mixed question of law and fact, but generally one

20. Story on Bail. § 63; 2 Kent's Com. sec. 40; Knowles v. The Railway, 38 Me. 55.

22. Graves v. Ticknor, 6 N. H. 537.

23. Beardslee v. Richardson, 11

21. Bland v. Womack, 2 Mur- Wend. 25. phy, 373.

exclusively of the fact to be determined by a jury under all the circumstances.24 And all the circumstances which may explain the manner of the loss, including the conduct of the bailee in the custody of the property and immediately upon the discovery of its loss, may be considered; and accordingly proof has been admitted that upon such discovery the defendant raised the hue and cry and made assiduous exertions to find the lost property; and though this, it was said, would have been the course of a guilty man, yet it was also one which an innocent man would naturally take, and which, if he did not take, all would condemn him.25

Sec. 33. (§33.) Same subject-Statements of bailee, when evidence. So in another case where the party sued had been intrusted with a sum of money which he agreed to carry for accommodation and deliver according to the request of the bailor, evidence was admitted of what he said about the manner and circumstances of the robbery to the person whom he next met upon the road.26 Statements made by a mandatary in such cases, at the time of demand and refusal to deliver the property, in which he gives an account of the loss by accident' or theft with the attending circumstances, are also admissible. as part of the rcs gestae, and as such, he is entitled to the benefit of them as evidence in his favor.27 It would seem, indeed, that for reasons of necessity and to prevent a failure of justice from the absolute impossibility, in many cases, of showing by direct proof the fact and manner of the loss, great latitude has been allowed in admitting evidence of the attendant circumstances; and it was held, before the law removed the disabilities of parties in interest to testify, as it now has generally done, that the mandatary himself was a competent witness to prove a robbery upon the road at night.28 And no doubt the character of the bailee for prudence and discretion in the man

24. Beauchamp v. Powley, 1 M. & Rob. 38; Storer v. Gowen, 18 Me. 174; Tracy v. Wood, 3 Mason, 132. 25. Tompkins v. Saltinarsh, 14 S. & R. 275.

26. Lampley v. Scott, 24 Miss.

528.

27. Beardslee v. Richardson, 11 Wend. 25.

28. Lampley v. Scott, supra.

agement of his business generally may be shown, especially if it be known to the bailor; for the law will not require of the bailee more care and diligence than the bailor had a right to expect from his known habits and character in this regard, and if, being a stranger, he trusts him and he should turn out to be a careless, negligent sort of person, it would be the bailor's own folly.29

Sec. 34. (§ 34.) Requisites of declaration against private carrier. In declaring against the mandatary, it is not necessary to set out any consideration further than the delivery of the goods and the undertaking to carry out the purposes of the bailment. This is indeed the only consideration which can be alleged, and is sufficient in law. For "a bare being trusted with another man's goods must be taken to be a sufficient consideration if the bailee once enter upon the trust and take the goods into his possession." The question of compensation may be important in determining the extent of the rights and obligations of the parties or the class of bailments in which a particular transaction is embraced, but it is not essential to the existence of the contract or to its obligation. Nor need the plaintiff allege the particular character or degree of the negligence upon which he relies for his recovery, but the allegation of negligence generally is sufficient.30 But the bailee must have actually entered upon the execution of the trust. A mere executory promise to do so will be nudum pactum, and will impose no obligation whatever; for the mandatary is not answerable for omitting to do an act for another, and is only responsible when he attempts or undertakes to do it and does it amiss. In other words, he may become liable for a misfeasance but not for a nonfeasance, even though special damages are averred.31 The goods, therefore, in the case of the

29. Knowles v. Railway, 38 Me. 55; Coggs v. Bernard, supra.

30. McCauley v. Davidson, 10 Minn. 418; Nelson v. Mackintosh, 1 Starkie, 237; Balfe v. West, 22 Eng. L. & Eq. 506; Hutton v. Os

borne, 1 Sel. N. P. 420; Coggs v. Bernard, supra.

31. Thorne v. Deas, 4 Johns. 84; Salem Bank v. Gloucester Bank, 17 Mass. 1; Shillibeer v. Glyn, 2 M. & W. 143.

carrier without hire, must have been delivered to and accepted by him in order to impose upon him any liability for their safety or for a failure to execute a trust in regard to them.

II.

PRIVATE CARRIERS FOR HIRE.

Sec. 35. (§ 35.) Who are.-Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon.32 They are not common carriers, because they do not make the carriage of goods for others a business, and do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever; and hence the law does not compel them to accept and carry goods for anybody. Having never professed by their course of business, or in any other manner, to carry for all indifferently, they, unlike common carriers, may refuse at will to carry the goods which may be offered, without incurring any liability whatever, and may carry for one person and at the same time refuse to carry for another.33 But, being carriers for hire, their reward is regarded as the consideration for the undertaking and the consequent liability; and the trust being for the mutual benefit of the bailor and themselves, they belong to a different class of bailees from mandataries and incur a greater degree of responsibility.

Sec. 36. (§ 36.) Less numerous than formerly.-Before the invention of steam and the wonderful improvement in the means of transportation in modern times, the business of the private carrier for hire was much more important than it is now. Much, perhaps most, of the business of transporting merchandise by land was done by wagoners who did not pro

32. "A private carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case for hire or

reward." Pennewill v. Cullen, 5 Harr. (Del.) 238.

33. Piedmont Mfg. Co. v. Railroad, 19 S. C. 353.

fess to be, and were not, in fact, public or common carriers, and consequently the law affecting the rights and responsibilities of such bailees was of very great importance to them as well as to the public, who depended upon them in a very great measure as instruments of commercial intercourse. But the great multiplication of common carriers, whose routes now traverse almost every neighborhood and whose employment affords greater security and facilities in transportation, has almost displaced private carriers and made their business comparatively insignificant. Still, many important business transactions take place through the intervention of private carriers, although the law applicable to the class of bailees to which they belong has become, perhaps, more important in relation to wharfingers, warehousemen and the like, than to private carriers for hire.

Sec. 37. (§ 37.) Degree of diligence required. The bailment to the private carrier for hire being for the mutual benefit of the parties, the law exacts of him a higher degree of diligence than of the carrier without hire. The measure of his duty is what is known as ordinary diligence, and for the lack of this, he will be held liable.34 Being required to exercise a greater degree of care and attention than the mandatary, he must, in order to exculpate himself when a loss has occurred, be able to show that he has omitted none of those ordinary precautions for the safety of the property which, according to common experience, men of judgment and prudence would have used under the same circumstances in their care of the

34. In United States v. Power, 6 Mont. 271, the court say: "As a private carrier the respondent was bound to use ordinary care,such care and diligence as a reasonably prudent man would exercise in the conduct of his own business or in the preservation of his own property. Ang. Carr. § 47; Story, Bailm. § 399; 2 Greenl. Ev. 8 219; Ames v. Belden, 17 Barb. 515; Samms v. Stewart, 20

Ohio, 73." The private carrier is liable for ordinary neglect. White v. Bascom, 28 Vt. 268; Varble v. Bigley, 14 Bush (Ky.), 698; Pennewill v. Cullen, 5 Harr. (Del.) 238; Jaminet v. Moving Co., 109 Mo. App. 257, 84 S. W. Rep. 128, citing Hutchinson on Carr.; Railway v. Glascock & Warfield, 117 Ga. 938, 43 S. E. Rep. 981, citing Hutchinson on Carr.