V. Of locatum, or hiring for a reward.

This is the fifth and last species of bailment remaining to be examined. It is a contract by which the use of a thing, or labour or services about it are stipulated to be given for a reasonable compensation, express or implied.2 It includes the thing let, the price or recompense, and a valid contract between the letter and hirer. This bail

ment or letting for hire is of three kinds ; locatio *586 rei, by which the thirer, for a compensation, gains

the temporary use of the thing ; locatio operis faciendi, or letting out of work and labour to be done, or care and attention to be bestowed by the bailee on goods bail. ed for a recompense ; locatio operis mercium vehendarum, or when goods are bailed to a public carrier or private per. son, for the purpose of being carried from one place to another for a stipulated or implied reward.c

(1.) In the case of the locatio rei, or letting to hire, the hirer gains a special property in the thing hired, and the letter to hire an absolute property in the price, and retains a general property as owner in the chattel. This is a contract in daily use in the common business of life; and it is very important that the rules regulating it should be settled with clear and exact precision. The letter according to the civil law, is bound not to disturb the hirer in the use of the thing during the period for which

- 1 Bell's Com. 255. 451, 5th edition. Story on Bailment, p. 251-254.

Pothier, Traite du Contrat de Louage, No. 6. Story's Comm. 250. The books usually follow the civil law, and consider the price as being pay. able in money; but the contract at common law may be classed under the head of location, or locatio-conductio rei, be the recompense what it may. Ibid. 253.

· Coggs v. Bernard, 2 Ld. Raym. 909. Jones on Bailment, 27. 90. The letter or owner who lets out the thing for hire, is called in the civil law locator; and the hirer who has the benefit of the thing for a compensation, the conductor; and the bailment or contract for hire itself, is called locatio or locatio-conductio, or in English, location ; and this is the language used in the Scottish Law. 1 Slair's Inst. b. 1. tit. 15, sec.1. 5, 6. Wood's Inst of the Civil Law, 236. Story on Bailments, 247—249, 2d

it was hired, and to keep the subject in suitable order and repair, and to pay for extraordinary expenses necessarily incurred upon it.a But the extent of the obligations of the letter, under the common law on the point of repairs and expenses, remains to be defined and settled by judicial decisions. The hirer is bound to ordinary care and diligence, and is answerable only for ordinary neglect; for this species of hiring is one of mutual benefit. He is bound to use the article with due care and moderation and not apply it to any other use, or detain it for a longer period, than that for which it was hired. The responsibility of the hirer is sufficiently shown by Sir William Jones, in his subtle but perfectly judicious criticism on the cases in the English and the Roman law.d The hirer, says Pothier, is only held to a common dili gence, and *answerable only for slight neglect. *587 He is bound to bestow the same degree of diligence that all prudent men use in keeping their own goods, and to restore the article in as good condition as he received it, unless it be deteriorated by internal decay or by external means, without his default; and if the article be injured or destroyed without any fault or neglect on the part of the person who takes on hire, the loss falls upon the owner, for the risk is with him. But if the thing hired be lost or damaged by the hirer, or by his servants acting under him, from the want of ordinary care and

Pothier, Traite du Contrat de Louage, No. 77. 106, 107. 129, 130. Civil Code of Louisiana, art. 2663, 2664. i Bell's Com. 453, 5th edit.

Story's Comm. 260, 261, e Pothier, Traite du Contrat de Louage, 180. Johnson, J., in De Tol. lemero y. Fuller, 1 Const. Rep. S. C. 121. Wheelock y. Wheelwright, 5 Mase. Rep. 104. Story's Comm. 263, 264, 272, 273, 2d edit.

Essay on Bailment, 66–69. Pothier, Traite du Contrat de Louage, No. 190. 192. 197. 200. Garside v. T. & M. Navigation Company, 4 Term Rep. 581. Cooper v. Barton, 3 Campb. Rep. 6, note. Millon v. Salisbury, 13 Johns. Rep. 211. Story's Com. 268—272. Salter v. Hurst, 5 Miller's Louis. Rep. 7. Reeves v. the Constitution, Gilpin's Rep. 579.



diligence, he is responsible. The bailee, when called upon for the article deposited, must deliver it, or account for his defa ult by showing a loss of it by some violence, theft or accident. When the loss is shown, the proof of negligence or want of due care is thrown upon the bailor and the bailee is not bound to prove affirmatively that he used reasonable care. The care must rise in proportion to the demand for it; and things that may easily be deteriorated require an increase of care and diligence in the use of them. Negligence is a relative term; and the value of the article and the means of security possessed by the bailee, are material circumstances in estimating the requisite care and diligence. That may be gross negligence in the case of a parcel of articles of extraordinary value, which, in the case of another parcel, would not be so; for the temptation to theft, and the necessity for care, are in proportion to the value.d Gaius

uses the word diligentissimus when the rule is ap*588 plied *in the Roman law to the case of an under

s taking to remove a column from one place to another.e

• Bray v. Mayne, 1 Gow's Rep. 1. Dean v. Keate, 3 Campb. Rep. 4. Story's Comm. 268. Sinclair v. Pearson, 7 N. H. Rep. 219.

o If a bailee for hire sells the goods without authority, the bailor may maintain trover against even the bona fide purchaser. Loeschman v. Ma. chin, 2 Starkie, N. P. C. 311. Cooper v. Willomatt, 1 Manning, Granger f. Scott, 672.

© Harris v. Packwood, 3 Taunt. Rep. 264. Marsh v. Horne, 5 Barnt. of Cress. 3227 Cowen's Rep. 500, note.

a Batson v. Donovan, 4 Barnw. f. Ald. 21. Tracy v. Wood, 3 Mason's Rep. 134, 135. See the cases put by Sir William Jones, and Lord Stow. ell, by way of illustration of the reason of the distinction between different degrees of diligence requisito in different cases. Jones on Bailment, 62. 6 Rob. Adm. Rep. 142. 155.

Dig. 19. 2. 25. 7. Sir William Jones, in his Essay on Bailment, 67, says, that the superlative diligentissimus was here improperly applied, and that it would be a case only of ordinary care. But Ferriere, in his Commentaries upon the Institutes, tom. v. p. 138, thinks otherwise ; and that Gaius was speaking of things that might easily be deteriorated, and would require the most exact diligence for their preservation. The case would

(2.) The case of locatio operis faciendi, is where work and labour, or care and pains, are to be bestowed on the thing delivered, for a pecuniary recompense; and the workman for hire must answer for ordinary neglect of the goods bailed, and apply a degree of skill equal to his undertaking. Every man is presumed to possess the ordinary skill requisite to the due exercise of the art or trade which he assumes. Spondet peritiam artis, and Imperitia culpæ annumeratur. If he performs the work unskilfully, he becomes responsible in damages. Every mechanic who takes any materials to work up for another in the course of his trade, as where a tailor receives cloth to be made into a coat, or a jeweller a gem to be set or engraved, is bound to perform it in a workmanlike manner; he must bestow ordinary diligence, and that care - and fidelity, which every man of common prudence, and capable of governing a family, takes of his own concerns.b As this contract is of mutual benefit, the bailee is not answerable for slight neglect, nor for a loss by inevitable accident or irresistible force, or from the inherent defect of the thing itself ;c he is only answerable for ordinary neglect.d

*But though he must exercise a care, diligence, *589 and skill, adequate to the business; and if he fails in the ordinary care and skill which belongs to his under

depend upon circumstances. Gaius was speaking, not of unhown blocks of granite or marble, but of columns, which implied, in the midst of the splendid architecture of Rome, productions of great labour and skill; and in such a case, it would, no doubt, require the utmost attention to avoid injury to the polished shaft or capital; and especially if that capital was finished in the Corinthian style, or surmounted by an entablature, adorned with all the beauty and elegance of the Grecian art.

· Bell's Com. vol. i. p. 459. Pothier, Traite du Contrat de Louage, No. 425, 426. M'Donald v. Simpson, 4 Arkansas Rep. 523.

Dig. 19. 2. 9. 5. Pothier, Ibid. No. 419. 428. 1 Bells Com. 456, 458. Duncan v. Blundell, 3 Starkie's Rep. 6. Story on Bailments, 281. 2d edit.

Pothier, Traité du Contrat de Louage, n. 428. Dig. 19. 2. 13. 5. d Story on Bailment, p. 282, 283, 284, 2d edit.

taking, and the bailor sustains damage, he must answer for that damage ; yet, if the delivery was of a nature to transfer the property, a different result would follow. In the case of a delivery to a goldsmith of a bar of silver, to be made into vases, or an ingot of gold, to be made into rings, by the civil law the whole property passed to the smith, and the employer was merely entitled as a creditor to have metal equally valuabler eturned in a certain shape.a If the metal in that case should be lost, even by irresistible force, the smith as the owner of it, would be held to bear the loss, and the creditor to be entitled to his vase or ring; though it would be otherwise, if the same metal was to be returned in its new form.b

In the case of Seymour v. Brown, a quantity of wheat was sent to a miller to be exchanged for flour, at the rate of a barrel of flour for every five bushels of wheat. The miller mixed the wheat with the mass of the wheat of the same quality belonging to himself and others, and before the flour was delivered, the mill, with all its contents, was destroyed by fire. It was held, upon the question who was to bear the loss, that as there was no fault or negligence imputable to the miller, he was not responsible for the loss, and that the property was not transferred. It was considered, that there was no sale within the intention of the parties. If the same identical wheat was to have been returned in the shape of flour, the decision was correct, according to the general principles of law applicable to the case. But as it did not appear to have been understood that the wheat

delivered was to be kept separate, and returned *590 *in flour, but only four equal to wheat of such

· Dig. 19. 2. 31. b Jones on Bailment, 78, 79. Buffum v. Merry, 3 Mason's Rep.478.

e 19 Johns. Rep. 44. This decision has been overruled in the very anal. ogous case of Ewing v. French, 1 Blackf. Ind. Rep. 353, and in Hurd v. West, 7 Cowen, 752. 756, note, and in Smith v. Clark, 21 Wendell, 85.

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