BY SERV ANT FOR DISCHARG which he agreement. For that whereas heretofore, to wit, on, &c. (date of agreement) to wit, at, &c. (venue) by a certain agreement then and there made between said plaintiff and the said defendant, the said plaintiff agreed to[here set out the agreement in the ING HIM ↓ past tense(r)] perform and complete the mason work, at the Regent's Circus, For prenorth end of Portland Place, in the New Road, at the following prices, finding all venting plaintiff materials and labor, and to do the same to the satisfaction of the architect appoint- from comed to survey the same; that is to say, straight Portland kirb, twelve inches by pleting a ten inches, with rail holes, plugs and lead, including the stone for the brace bar, work at seven shillings and five pence per foot, run circular ditto at eight shillings had underper foot, run bases for the lamp irons two feet four inches and three-quarters, taken on a by two feet four inches and three-quarters, and twelve inches high, at two written pounds each, including rail-holes, and to do the whole complete in all respects according to the drawings, and within the time specified in the specification delivered; and it was also then and there agreed between the said plaintiff and the said defendant, that he the said defendant should advance 127. in cash, for every hundred feet set complete, and the balance by bill at two months, after the accounts were adjusted; the whole of the Portland stone, kirb and gate bases on the south side of the whole line of the new road, from east to west, to be fixed and made complete, in all respects, on or before the 25th day of November, in the year aforesaid, and the half-circle area to be made complete on or before the 25th day of December in the same year; and part of the work having then already been done by G. H. it was thereby further understood that the same should be ascertained by L. M. of, &c. surveyor, on the part of the said defendant, and E. F. of, &c. on the part of the said plaintiff; and in case any dispute should arise, the same to be decided by their umpire, and the balance paid to the said G. H. as well as the money then already advanced to him by the said defendant, was to be accounted for by the said plaintiff, and deducted from the balance due to him, when completed, but at present to draw only for the setting the same; and the said agreement being so made, afterwards, to wit, on, &c. aforesaid, at, &c. (venue) aforesaid, in consideration thereof, and that the said plaintiff, at the special instance and request of the said defendant, had then and there undertaken, and faithfully promised the said defendant, to perform and fulfili the said agreement, in all things on the said plaintiff's part *and behalf to be performed and fulfilled, he the said defendant undertook, and [ *329] then and there faithfully promised the said plaintiff to perform and fulfill the said agreement in all things on the said defendant's part and behalf to be performed and fulfilled; and although the said plaintiff hath always, from the time of the making of the said agreement, performed and fulfilled all things on his part and behalf in the said agreement to be performed and fulfilled, and did afterwards, to wit, on the day and year first aforesaid, at, &c. (venue) enter upon and commence the said work and for that purpose did procure and find all materials and labor necessary for performing the same, and did the same in part, to wit, one thousand two hundred feet thereof, to the satisfaction of the architect appointed to survey the said work, and hath always been ready and willing to perform and complete the whole of the said work, in pursuance of the said agreement, of all which said premises the said defendant hath had notice, to wit, at, &c. (venue) aforesaid; yet the said plaintiff in fact saith, that the said defendant, contriving and wrongfully intending to injure the said plaintiff, did not nor would perform the said agreement, nor his said promise and (r) It is sufficient to show so much of the contract only, as is necessary to show clearly the defendant's failure. 4 Taunt. 285; 6 East, 564. This cause was tried, and plaintiff obtai- VENTING PLAINTIFF COMPLET ING A WORK. FOR PRE- undertaking, but thereby craftily and subtly deceived the said plaintiff in this, to wit, that the said defendant did not nor would advance the said sum of 124, in cash, for each of the said one hundred feet, set complete, but on the contrary thereof, hath hitherto wholly neglected and refused so to do, to wit, &c. at, &c. (venue) aforesaid; and the said defendant further disregarding the said agreement, and his said promise and undertaking, afterwards, to wit, on, &e. to wit, &c. (venue) aforesaid, did not nor would permit or suffer the said plaintiff to proceed to complete the said work, and then and there would wholly hinder and prevented him from so doing and then and there wrongfully discharged the said plaintiff from any further performance or completion of his said agreement and promise and undertaking, whereby the said plaintiff hath lost and been deprived of the profits and advantages which he otherwise might and would have derived and acquired from the completion of the said works, to wit, at, &c. (venue) aforesaid. [Add a count to the same effect, not as on an agreement, but as upon an executory consideration, and other counts for work and labor, goods sold, money paid, and account stated and breach.] ment for not per forming work, and for per forming inartificial ly (s). [*330] *For that whereas heretofore, to wit, on, &c. (date of agreement) at, &c. On a build- (venue) by a certain agreement then and there made by and between the said ing agree plaintiff and the said defendant, it was agreed, that the said defendant should take down a certain messuage or dwelling-house, situate at, &c. and should build two other messuages or dwelling-houses for the said plaintiff, agreeably part of the to certain plans thereof, then in the possession of the said defendant, and according to the particulars and in manner following; that is to say, that the said old house should be taken down, and the bricks cleaned and worked up, the residue &c.-[Set out the agreement in the past tense.] And the said agreement being so made afterwards, to wit, on, &c. at, &c.-[Mutual promises as ante, 328, (t).] And although the said plaintiff hath always, &c.-[Stat: plaintiff's general performance of the agreement, and special performance of any precedent condition.] Yet the said plaintiff in fact saith, that said defendant contriving, and wrongfully and unjustly intending to injure the said plaintiff, did not nor would perform the said agreement, nor his said promise and undertaking, but thereby craftily and subtly deceived the said plaintiff in this, to wit, that the said defendant wholly neglected and omitted to do and perform certain works which were requisite and necessary to be done and performed under and by virtue of the said agreement, and according to the tenor and effect, true intent and meaning thereof, that is to say, to pull down, &c.-[Here specify the breach according to the fact.] And the said defendant also thereby craftily and subtly deceived the said plaintiff in this, to wit, that the said defendant afterwards, to wit, on, &c. and on divers other, &c. did and performed certain other works which were requisite and necessary to be done and performed under and by virtue of the said agreement, in a bad, inartificial, and unworkmanlike manner, contrary to the form [*331 ] and effect of the said agreement, *and of his said promise and undertaking, to wit, at, &c. (venue) aforesaid. (s) See next form, also Morgan, 188. The terms of the agreement are to be stated as in the agreement. The precedents which may be classed under this head are very numerous, see the Index to 2 Wentw. When the action is founded on a written agreement, it is usual to set the same out, as to which, see 6 East, 569. If the declaration be framed as in the second count of the above precedent, it must be either shown that the defendant, was to have a reward for the work to be performed, or that he actually performed it, and unskilfully, 5 T. R 142; 4 B. & Cress. 345. (t) But this statement is not absolutely necessary, see 2 New Rep. 62. PERFORMING WORKS. Second And whereas also, heretofore, to wit, on the day and year aforesaid, at, &c. FOR NOT (renue) aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant, had then and there retained and employed the said defendant to take down a certain other messuage and dwell- count more ing-house, with the appurtenances, and to erect and build divers, to wit, two general. other messuages or dwelling-houses, with the appurtenances, in lieu thereof, for the said plaintiff, agreeable to certain plans and particulars then and there made and agreed upon by and between the said plaintiff and defendant, for certain reasonable reward to the said defendant in that behalf, he the said defendant undertook, and then and there faithfully promised the said plaintiff to erect and build the said last-mentioned messuage or dwelling-house, with the appurtenances, agreeable to the said last-mentioned plans and particulars, with good and proper materials, and in a sound, substantial, and workmanlike manner; and although the said defendant did afterwards, and before the commencement of this suit, erect and build the said last-mentioned messuages or dwelling-houses, with the appurtenances, for the said plaintiff, to wit, at, &c. (renue) aforesaid: yet the said defendant, not regarding his said last-mentioned promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this behalf, did not nor would erect or build the said st-mentioned messuages or dwelling-house, with the appurtenances, for the plaintiff, agreeable to the said last-mentioned plans and particulars, and ith good and proper materials, and in a sound, substantial, and workmanlike manner, but wholly neglected and refused so to do, and on the contrary therehe the said defendant erected and built the said last-mentioned messuages dwelling-houses, with the appurtenances; different from and contrary to the aid last-mentioned plans and particulars and with bad and improper matejals, and in a slight, weak, inartificial, and unworkmanlike manner, contrary the form and effect of the said last-mentioned promise and undertaking, to fit, at, &c. (venue) aforesaid.-[Add another count similar to the last, mitting the words in italics, and such other counts as may be applicable the case, and money had and received, account stated and breach.] For that whereas the said plaintiff, before and at the time of the making On an agreement the agreement, and the promise and undertaking of the said defendant to fix a greinafter next mentioned, was, and from thence hitherto hath been, and still steam ena miller and mealman, and the trade and business of a miller and mealman gine, in a ath, for and during all that time used and exercised, and carried on, and complete working till doth use, and exercise, and carry on, to wit, at, &c. (venue) and there- condition. pon heretofore, to wit, on, &c. (date of agreement) at, &c. (venue) aforesaid, y a certain agreement then and there made between the said plaintiff and e said defendant, he the said defendant, for and in consideration of the sum - agreed by the said plaintiff to be paid, at the days and time thereinfer mentioned, did agree to and with the said plaintiff, in manner following: -[Here set out the agreement, and afterwards mutual promises, as ante, 3.]--And although the said plaintiff hath always from the time of making said agreement, hitherto well and truly performed and fulfilled the same all things, on his part and behalf to be performed and fulfilled, according the tenor and effect, true intent and meaning thereof, and hath furnished necessary brickwork for the framing and setting-up of the said boiler, gether with the fire-bars, plumber's, painter's and stonemason's work, of and the said engine, and fixing and setting-up the same, and hath always been dy and willing to pay for the said engine as aforesaid, yet the said defend PERFORM ING Special damage, tiff was as he FOR NOT ant, not regarding the said agreement, nor his said promise and undertaking so by him made, in manner and form aforesaid, but contriving, and fraudu WORKS. lently intending to injure the said plaintiff in this respect, has not, (although often requested so to do.) at his own costs and charges, made, fixed, and set up, or caused to be made, fixed, and set up, in complete working condition, of good materials and workmanship, on the premises of the said plaintiff, in the said agreement above alluded to, one steam-engine, of seven-horse power, &c. together with all necessary utensils and implements for working the same, excepting as in the said agreement is excepted, but on the contrary thereof, after the making of the said agreement, and his said promise and undertaking, to wit, on, &c. aforesaid, fixed and set up, in the said premises above alluded to, a steam-engine not in complete working condition, and of much less power than a seven-horse power engine, to wit, a two-horse power engine, [ *332 ] and with a boiler and pump of insufficient size, and not set together with requisite and necessary utensils and implements, according to the said agreement, to be furnished by the said defendant, by him so made as aforesaid, to wit, at, &c. (venue) aforesaid; by reason whereof the said engine hath been that plain- and is of very little use to the said plaintiff and the said plaintiff hath not, since the said engine was so fixed and set up as aforesaid, been able to grind prevented such large quantities of corn and grain as he might and would have ground, from had the said defendant made, fixed, and set up an engine, according to the grinding so much corn terms, true intent, and meaning of the said agreement, and his said promise and undertaking, and the said plaintiff hath thereby also lost and been dewould, and prived of divers great gains and profits, which would have accrued to him, from grinding such quantities of corn and grain, in the whole, amounting to a large sum of money, to wit, the sum of 7. and also by means whereof, a certain large quantity, to wit, 1000 bushels of corn, which he, the said plainchased for tiff, confiding in the said agreement, had purchased, in order that the same might be ground by means of the said engine, remains wholly unground, and came of no has been, and is greatly damaged and spoiled, and reduced in value; by means use to him, whereof, and also on account of the said engine, with the appurtenances, having been and being so incomplete as aforesaid, and of divers attempts and endeavors having been made since the said engine was so fixed and set up as aforesaid, and before the exhibiting of the said bill of the said plaintiff, in this suit, by the said plaintiff, for and on the behalf of the said defendant, to amend and render the said engine, and the said insufficient implements for working the same complete, according to the said agreement, he the said plaintiff, on the several days and times since the said engine was so fixed and set up as aforesaid, was wholly deprived of the use of the same, and thereby has also been forced and obliged to lay out and expend, and hath laid out and expended divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of. in and about the providing lead-work, brickwork, and other necessary materials and labor, in and about the putting, setting up, and fixing a certain other boiler and pump in lieu and stead of the said insufficient boiler and pump, to wit, at, &c. (venue) aforesaid.-[Add another count more general. otherwise that a quantity which he had pnr the purpose, be &c. [ *333] AGAINST BAILEES. General observatiens (u). *XXIX. AGAINST BAILEES. In Coggs v. Bernard, 2 Ld. Raym. 912, 13, Holt, C. J. states, that there (u) See precedents in case, post, 669; and 2 Campb. 291. AGAINST BAIJ EES. are six sorts of bailments: but Sir Wm. Jones, in his Work on Bailments, 35, 6, arranges them under five heads: 1. Depositum, or the delivery of goods to the bailee to be kept for the bailor without reward. 2. Mandatum, or commission when the bailee undertakes without reward to do some act about the thing bailed, or to carry it. 3. Commodatum, a loan for a bailee's use, without reward to *bailor. 4. Pignori acceptum, [ *334 ] where goods are pawned to a bailee. 5. Locatum, or hireling, which is always for reward; and which is either; 1st, Locatio rei, or use of the thing by bailee paying reward to the bailor; 2dly, Locatio operis facienda, when work and labor, or care and pains, are to be performed or bestowed on the thing delivered; 3dly, Locatio operis mercium vehendarum, when goods are delivered to a public carrier, or private person to be carried. The respective liability of these several bailees are considered in the authorities above referred to, and in 1 Hen. Bla. 158. 1 Saund, 312, n. 2. 3 Chit. Com. Law. 354, &c. Chit. jun. Contr. 142, &c. See also the observations of Sir Wm. Scott on Bailments, 6 Rol. Rep. 316.—In the following pages a precedent is given under each of the heads that usually occur in Practice, except that of Mandatum, as to which see a declaration, 1 Hen. Bla. 158. 4 T. R. 143. Ld. Raym. 909. bailee care of, goods in For that whereas heretofore, to wit, on, &c. (any day when defendant Depositum had the goods and before title of declaration, at, &c. (venue) in consideration Against that the plaintiff at the special instance and request of the said defendant, without had caused to be delivered to the said defendant certain goods and chattels, reward for to wit, &c. (set them out as in trover), of great value, to wit, of the value. not taking to be taken care of, and safely and securely kept by the said defendant for and rethe said plaintiff, and to be re-delivered by the said defendant to the said plain- delivering tiff, he the said defendant undertook, and then and there faithfully promised the said plaintiff to take due and proper care of, and safely and securely his care keep the said goods and chattels for the said plaintiff, and to re-deliver the (w) same to the said plaintiff, when he the said defendant should be thereunto afterwards requested: and although the said defendant then and there had and received the said goods and chattels of and from the said plaintiff for the purpose aforesaid; and although the said defendant was afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, requested by the said plaintiff to re-deliver the said goods and chattels to the said plaintiff; yet the (w) See forms, Morg. 191. This description of bailment is called a depositum or a bailment of goods to be kept by the bailee for the bailor, without reward to the bailee, 2 Ld. Rayın. 912; Sir W. Jones, 35, 6; 2 Stra. 1099, and the bailee is not liable for loss or damage unless it be attributable to the want of that care which every man of common sense, how inattentive soever, takes of his own property, that is, he is only liable for gross neglect. Id. ibid. 1 Esp. Rep. 316; Willes. 121; see also 1 B. & A 62; 1 Campb. 138. Indeed any bailee is liable for gross negligence. 2 Stra. 1009. The bare leaving goods in custody, and accepting such trust, raise a promise not grossly to neglect the care of the goods, 2 Stra. 1099. But such a bailee is not liable if he be robbed of the goods, Willes, 121. He is liable for ordinary neglect if he spontaneously and officiously offers to keep the goods, Jones, 48, 54; or VOL II. 32 when he changes the description of his char- Where the bailee has a reward for his care |