tracts for the sale of goods for the price of fifty dollars or more, are void, unless they be in writing; or unless the buyer receive a part of the goods or evidences, or pay, at the time, a part of the purchase money.

CHAPTER VI.

Bailment.

§654. THE word bailment is from bail, a definition of which has been given in another place. (§ 127.) Bailment, in law, is a delivery of goods in trust, upon agreement that the trust shall be executed, and the goods restored by the bailee, when the purpose of the bailment shall have been answered.

§ 655. If a person receives goods to be kept for the bailor, and to be returned on demand, without recompense, he is to keep them with reasonable care; and unless there be a special undertaking to the contrary, he is responsible only for gross neglect, or for a violation of good faith. Gross neglect is a want of that care which every man of common sense takes of his own property. If a person undertakes, without recompense, to do some act for another in respect to the thing bailed; for instance, if he undertakes to carry an article from one place to another, he is responsible only for gross neglect, or a breach of faith.

§ 656. Whether a mandatary renders himself liable for the non-performance of a gratuitous undertaking, is a question on which writers on common law differ in some degree. But perhaps the prevailing opinion among us is, that a mandatary, that is, one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, but is responsible only when he attempts to do it, and does it amiss. In other words, he is responsible for

§ 654. What is the meaning of bailment? Of bailor and bailee? § 655. In what cases is a bailee liable for damages to goods kept for the bailor? 656. In what cases does a mandatary become liable?

misfeasance, but not for nonfeasance, even though special damages be averred.

§ 657. If a person loans to another for use without reward, any article, as a horse, carriage, or book, and the article be lost or destroyed, without blame or neglect imputable to the borrower, the owner must abide the loss. But the borrower must apply the thing to the use for which it was borrowed; and he must not keep it beyond the time limited, nor permit another person to use it.

§ 658. If property be pledged as security for a debt or engagement, the pawnee is bound to take ordinary care, and is answerable only for ordinary neglect; and if the goods should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt. If he derives any profit from the use of the property, he must apply the profits, after deducting necessary expenses, towards the debt.

§ 659. There is another species of bailment, the hiring of property for a reward. The hirer is bound to use the article with due care and moderation, and not to apply it to any other use, or detain it for a longer period than that for which it was hired. If the article be injured or destroyed without any fault on the part of the hirer, the loss falls on the owner, for the risk is with him.

§ 660. In cases where work or care is bestowed on the thing delivered, for a recompense, the workman for hire must answer for ordinary neglect of the goods bailed, and apply a degree of skill equal to the undertaking; for every man is presumed to possess the skill requisite to the due exercise of the art or trade he assumes. If he performs the work unskilfully, he is responsible in damages. As, if a tailor receives cloth to be made into a coat, he is bound to perform it in a workmanlike manner.

§ 661. Forwarding merchants are responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent, unless the business and duty of carriers be attached to their other character.

What is a mandatary? § 657. How does a borrower become liable? § 658. What is the law in relation to property pledged or pawned? § 659. What in relation to property hired for a reward? § 660. What in relation to articles on which labor is bestowed? § 661. What in

§ 662. But with regard to innkeepers, the rule is more strict. In general, they are responsible for the acts of their servants and for thefts, and are bound to take all possible care of the goods and baggage of their guests, on the ground of the profit they receive for their entertainment. But the innkeeper is not considered responsible for loss occasioned by unavoidable accident, or by superior force, as robbery.

§ 663. A person who carries goods for hire, in a particu-lar case, and not as a common carrier, is only answerable for ordinary neglect, unless he expressly assumes the risk of a common carrier. But if he be a common carrier, he is in the nature of an insurer, and is answerable for accidents and thefts, and even for loss by robbery. He is answerable for all losses, except in cases of the act of God, and public enemies.

§ 664. Proprietors of a stage coach do not warrant the safety of passengers as common carriers; they are responsible only for the want of due care. But as public carriers, they are answerable for the loss of a box or parcel of goods, though ignorant of the contents. But if the owner be guilty of fraud or imposition, as by concealing the value or nature of the article, or deludes the carrier by treating the parcel as of no value, he cannot hold him liable for the loss of his goods. Carriers by water are liable to the same extent as carriers by land. But the rule does not apply to postmasters.

CHAPTER VII.

Principal and Agent.—Partnership.

§ 665. AGENCY is founded upon a contract, expressed or implied, by which one party intrusts to the other the manage

relation to forwarding merchants? § 662. What respecting innkeepers? 663. What respecting special and common carriers? § 664. What respecting proprietors of stage coaches? Carriers by water? Postmasters?

§ 665. Upon what is agency founded? How far is a principal bound

ment of some business, and by which the other assumes to do the business, and to render an account of it. The acts of a general agent, or one employed by another to do his business of a particular kind, will bind his principal, so long as he keeps within the general scope of his authority, though he may act contrary to his private instructions. But an agent, constituted for a particular purpose, and under a limited power, cannot bind his principal if he exceeds his power. The special authority must be strictly pursued; and whoso ever deals with an agent, constituted for a special purpose, deals at his peril, when the agent passes the limits of his power.

§ 666. If a person intrusts his watch to a watchmaker to be repaired, and the watchmaker sells the watch, the owner is not bound by the sale. A factor, or merchant, who buys and sells upon commission, or as agent for others, may sell on credit, and the principal must abide by the bargain, and the agent incurs no risk. There are some cases in which a factor sells on credit on his own risk; as when he acts for an additional premium; and the principal may call on him without first looking to the vendee. A factor cannot pledge the goods of his principal as security for his own debts.

§ 667. If an agent would excuse himself from responsi. bility, he must show that he disclosed his principal when he made the contract, and that he acted on his behalf, so as to enable the party with whom he deals to have recourse to the principal, in case the agent had authority to bind him. And if the agent even buys in his own name, but for the principal, and without disclosing his name, the principal is bound as well as the agent, provided the goods come to his An agent, ordinarily, has no right, without express authority, to employ a sub-agent to do his business, without the knowledge or consent of his principal.

use.

§ 668. An agent has a right to retain possession of property until his demand shall be satisfied. This right is called a lien. A general lien is the right to retain property for a

by the acts of his agent? § 666. In what cases may a principal? In what cases does he act on his own risk? is necessary to exonerate an agent from responsibility?

factor bind his § 667. What § 668. What

or

general balance of accounts; but a particular lien is a right to retain it only for a charge on account of labor employed, expenses bestowed, upon the identical property detained. This is a privilege given by law to persons engaged in occupations necessary for the accommodation of the public. Upon this ground common carriers and innkeepers have a lien on property intrusted to them. A tailor has a lien upon the cloth put in his hands to be worked up into a garment. But he cannot hold it for any debt previously contracted.

§ 669. Partnership is a contract of two or more persons, to place their money, labor, or skill, in lawful commerce or business, and to divide the profit, and bear the loss, in cer. tain proportions. It is a partnership if one advances the funds, and another furnishes the personal services, and is to share in the profits. Though there be no express articles of copartnership, if persons have a mutual interest in the profits and loss, or if they hold out themselves to the world as joint traders, they are held responsible as partners to third persons, whatever may be the nature of their connexion; and each member of the firm is answerable for the whole amount of the debts. But a party may by agreement re ceive, by way of rent, a portion of the profits of a farm or tavern; or a clerk or agent may receive a portion of the profits of sales as a compensation for labor, without becom ing a partner.

§670. Parties must be jointly concerned in the future sale of their goods, in order to constitute a partnership. A joint purchase, with a view to separate and distinct sales by each person on his own account, is not sufficient. Several persons, not having contracted together as partners, may, by a common agent employed for the purpose, purchase goods in the name of one of them only, and divide the purchase among themselves, without becoming partners, or jointly answerable to the seller in that character, if they are not to be jointly concerned in the resale of their shares. If a purchase be made on separate account, and the interests of the purchasers be afterwards mingled, with a view to a joint

is a lien? In what cases are persons allowed this privilege? § 669. What is a partnership? Are express articles of copartnership ne cessary to hold persons responsible as partners? § 670. How may