BAILMENTS FOR MUTUAL BENEFIT. SECTION 17. CARE AND NEGLIGENCE. The most important classes of bailments are those for the mutual benefit of both the bailor and the bailee. In such bailments the bailee is held to the exercise of ordinary care in relation to the subject matter of the bailment, and is liable for what is known as "ordinary negligence." The important species of bailment of this character are the pignus or pledge and the various forms of the locatio. A locatio is a hiring. The two great subdivisions of the locatio are the locatio rei and the locatio operis. The former kind of bailment is the hiring of the thing itself. In such a bailment the collateral consideration moves from the bailee to the bailor, as a rent for the use of the thing bailed, and the consideration on the part of the bailor is the letting of the use of the article. In the second kind of locatio bailments the collateral consideration moves from the bailor to the bailee, and the consideration on the part of the bailee is the doing of some act in relation to the subject matter of the bailment. "The essentials of every locatio operis bailment are (a) services to be performed upon the chattel; (b) a contract for such services, and (c) a price or reward. It is the services about the chattel and the 1 Gray vs. Merriam, 143 Ill., 179; 35 N. E., 810; 39 Am. St. Rep., 172; 22 L. R. A., 769; Chase vs. Boody, 55 N. H., 574; Jones vs. Morgan, 90 N. Y., 4; 43 Am. Rep., 131. compensation to the bailee that are distinctive of this bailment and mark it off from all the others. The contract for services as a contract does not differ from contracts in general.' 992 The bailee in this class of bailments is always entitled to compensation for the work he has done. If the work is completed according to the terms of the contract, the bailee can recover the amount fixed by the contract. If the work is completed, but not according to the terms of the contract, the bailee may recover on a quantum meruit. If the deviation from the terms of the contract was with the consent of the bailor, occasioned by his fault, the bailee can recover the reasonable worth of his services. If the breach of the terms of the contract was the fault of the bailee himself, the bailor can recoup any damages he has sustained by the breach of the contract. The question as to the right of recovery of a bailee on a contract only partially completed presents some difficulties. At present, if the property is destroyed, before the completion of the work, without the fault of either party, the bailee will generally be allowed to recover pro tanteo for the labor and work which he has already expended on the thing. Under the old common law rule that there could be no recovery, where the contract was an entire one and the workman, for any cause, left the work incomplete. The present tendency of the law is to modify this rule, and to construe contracts for services as divisible ones. The cases on this point, however, are at present in hopeless confusion. If the completion of the work is prevented by the fault of the bailor, the bailee may recover quantum meruit for the value of the services rendered and ⚫ Goddard on Bailments, Sec. 127. For meaning of the terms quan tum meruit and recoup, see subject of Common Law Pleading, Volume XI, Subject 34. also for any losses caused by the fault of the bailor. If the bailee abandons the work, some cases allow him to recover the value of his services, less the loss to the bailor. Other cases deny any right of recovery in such cases.5 SECTION 19. PIGNUS OR PLEDGE. A pignus or pledge is a bailment to secure the performance of an obligation, with the power of sale, in case of default. In such a bailment the contract of bailment is a secondary one, incidental to the main contract whose performance it is intended to secure. The principal difference between a pledge and a chattel mortgage is that while the mortgagee acquires the legal title, the pledgee only acquires a special property in the property. Furthermore, the title of the mortgagee becomes absolute at law upon breach of the condition, while the title of the pledgee never can become absolute, a breach of conditions merely giving to the pledgee a power of sale. "It has been doubted whether incorporeal things like debts, money and stock, etc., which cannot be manually delivered, were the proper subjects of a pledge. It is now held that they are so, and there seems to be no reason why any legal or equitable interest whatever in personal property may not be pledged, provided the interest can be put, by actual delivery or by written transfer, into the hands or within the power of the pledgee.' 997 Incorporeal property is pledged by the delivery • Hillyard vs. Craleties Admr., 11 Tes., 264; 62 Am. Dec., 475. • Britton vs. Turner, 6 N. H., 481; 26 Am. Dec., 713. • Goddard on Bailments, Sec. 69. 722 Am. and Eng. Eny. of Law, 846; Wilson vs. Little, 2 N. Y., 443; Am. Dec., 307. of the paper which represents the property. In pledging corporate stock, the rules contained in the by-laws of the company must be followed. Bills and notes can be pledged by indorsement and transfer. Property not yet in existence cannot be pledged, but a contract of pledge of such property is valid, and when the pledgor comes into possession, the rights of the pledgee immediately attach and may be enforced. The pledgee has the right to the exclusive possession of the thing pledged, but, under the modern view has no right to use it. The pledge is an incident of the debt and may be assigned with it. The pledgor may extinguish the bailment either by performance of the obligation or default in performance. In the first case he is entitled to the return of the pledge; in the second case, the pledgee may sell the pledge. The pledgee may terminate the pledge either by voluntarily relinquishing it, or forfeit the pledge by his own wrong. The destruction of the chattel works an extinction of the pledge relation by operation of law. The pledgee is not compelled to bring suit before selling the pledge; he may demand payment and sell the pledge at public sale. If he choose the pledgee may bring a personal suit against the pledgor. In such a case the pledge security continues until he has obtained not only judgment but satisfaction of the debt. SECTION 20. LIEN. "The right to a specific lien on property in the hands of a tradesman or artisan for the price of work done upon it is of common-law origin, but the right has been long extended to every bailee who has by his 8 Wilson vs. Guyton, 8 Gill (Md.),213; East vs. Ferguson, 59 Ind. 169. labor or skill conferred some value on the thing bailed, in the absence of anything in the contract inconsistent therewith.10 No express agreement for a lien is necessary," and it does not seem material whether the agreement be to pay a stipulated price or only an implied contract to pay a reasonable price.12 The bailee must, however, have an exclusive legal possession,13 of the subject-matter created by some express or implied contract existing between the bailor and the bailee."' 14 4 • Garrard vs. Moody, 48 Ga., 96. "Busfield vs. Wheeler, 14 Allen 12 Morgan vs. Congdon. 4 N. Y., 552. 13 Heard vs. Brewer, 4 Daly (N. Y.), 136. 14 Small vs. Robinson, 69 Me., 425; 31 Am. Rep., 299. |