The loan may be for a definite period or at the will of the bailor, who may terminate it whenever he pleases.

Clapp sued to recover the possession of a wagon and two mules which he had loaned to Nelson for "a day or two," but which Nelson had neglected to return. Held, that when property is loaned for a definite period or for a day or two or a week or two, if it is not returned at the end of the longer period, the lender can bring an action for it without first making a demand for the property. - Clapp v. Nelson, 12 Texas 370.

Responsibility of Bailee. The bailee being the only one benefited, the duty devolves upon him to exercise the highest degree of care or diligence in the use of the chattel, or, as it is expressed, he is bound to use great diligence, and is responsible for every loss which is occasioned by not doing so.

Great diligence, then, is such as one more than ordinarily careful would bestow upon his property under like circumstances. Such a high degree of care being required of the gratuitous bailee, he is held strictly to the terms of the bailment, and when he deviates from these terms he is liable for the loss or damage ensuing.

Cuthbertson borrowed a horse to ride to the residence of one Cline and return next day, but instead he rode a mile and a half farther and in a different direction. The horse died during its absence on the third day after leaving home. It was admitted that there was no negligence. Held, that without regard to the question of negligence the bailee is liable for any injury which results from his departure from the contract.

- Martin v. Cuthbertson, 64 N. C. 328.

But where the borrower, while using the chattel within the terms of the bailment, encounters some accident whereby the thing loaned is injured or lost without even slight negligence on his part, he is not liable. If the chattel is injured or destroyed by inevitable accident or by fire, or if it is an animal and dies a natural death, the loss will not fall upon the bailee unless he is in fault.

Beller loaned a flag to Schultz. After it was hoisted a hailstorm came up and damaged it. Held, that in the absence of proof that Schultz had failed to take due care of the flag, he was not liable. A borrower of property is not an insurer, even though it be gratuitously loaned.

Beller v. Schultz, 44 Mich. 529.

Use of Property. As we have seen, this class of bailment carries with it the right to use the chattel, subject to such conditions and limitations as the bailor may be reasonably sup

posed to have made. Such expense as may be necessary to preserve the chattel while in use is to be paid by the borrower, as feeding and sheltering a horse or other domestic animals. But any extraordinary expense which wholly preserves the property for the owner may properly be chargeable to the bailor.

It is expected when a person borrows an article to use that the use will be personal; that is, the thing borrowed will be used by the borrower. Circumstances may change this. For example: a merchant, who is not known to engage in manual labor, may borrow a plow. It would not be expected that he was to use the plow, but instead, that it would be used by some one employed by him.

As soon as the bailment is ended, either by the expiration of the term, the act of the bailor, or the mutual agreement of the parties, the borrower must immediately deliver the property to the bailor or his order.

QUESTIONS

1. Give an example of a bailment for the bailee's benefit. 2. What degree of care is the bailee expected to exercise?

3. Under what conditions would the bailee be liable even though he exercised the required degree of care?

4. Would the bailee be liable in case of accident if he had been duly careful?

5. What are the rules with reference to the use of the property where the bailment is for the bailee's benefit?

4. BAILMENT FOR MUTUAL BENEFIT

Definition. This class of contract differs from those just considered in that the benefits to be derived are mutual instead of being confined to one side. It is a business transaction rather than an act of favor or friendship.

Bailments of this class may consist of (1) the hired service about a chattel, (2) the hired use of a chattel, or (3) pledge or pawn.

In mutual benefit bailments it is essential that there be a recompense for the use of the chattel or for the work to be bestowed upon it. The amount may be definitely fixed or, in the

absence of an agreed price, it may be such as shall be determined to be just and reasonable.

Chamberlin owned a horse for which he had no use, and, to avoid the expense of keeping it, requested Cobb to take it and do his work with it in consideration of its feed and keep. Held, to be not a mere gratuitous loan, under which Cobb would be required to exercise extraordinary care, but a contract for the mutual benefit of both parties, under which Cobb was required to exercise ordinary care in the keeping and care of the animal. Chamberlin v. Cobb, 32 Iowa 161.

Hired Service about a Chattel. - In the hired service about a chattel the bailment may be for the purpose of having the chattel stored or cared for, or it may be for the purpose of having work performed upon it, or for the purpose of having it carried from place to place. Among the hired custodians who store or care for property are safe depositaries, who for a consideration keep valuables in a safe place, and warehousemen, who for a certain charge keep goods and merchandise in storage. The hired work upon a chattel includes that of the wagon-maker who takes a wagon to repair it, of the watchinaker who takes a watch to adjust it, and of other classes of mechanics who receive chattels to bestow labor of different kinds upon them. The hired carriage of a chattel may be performed by a private carrier, who for hire undertakes to transport a particular chattel, or the public or common carrier who follows as a business the conveying of chattels or persons. Private carriers are within the usual rules of a mutual benefit bailment, while public carriers, including railroads and express companies, come within a special class, which will be discussed later.

In the bailment for hire the degree of care or diligence required of the bailee is said to be ordinary diligence, or such care as a prudent person exercises toward his own property under like circumstances. He is therefore liable for loss or injury to the chattel caused by ordinary negligence or, in other words, a failure to bestow ordinary care and diligence.

Piella wrote to Knights that he had a customer for a diamond and requested him to send some for examination. The diamonds were sent by Knights and were stolen while in Piella's possession. It was held to be a bailment for mutual benefit and Piella was not liable for the loss unless he failed to use ordinary care and diligence in his custody of the goods.

· Knights v. Piella, 111 Mich. 9.

While the chattel is in the possession of the workman employed in working upon it, if it is destroyed by inevitable accident or through some natural cause and without any fault upon his part, he will not be liable.

A greater degree of care is required of the safe depositary who stores jewelry and valuables than is required of a cattle keeper. So the exact care and precaution required of the bailee depends much upon the circumstances of the particular case.

A bailee who stored cotton for hire, permitted some of it to remain with the roping off, the bagging torn, and the under portion in water so that it became stained and much was damaged. The court held that there was a want of ordinary care and the bailee was liable.

Morehead v. Brown, 51 N. C. 367.

When the bailee is to perform some work upon the chattel, he must exercise such skill as a prudent workman of the same class would bestow upon a similar undertaking. And for a failure to exercise ordinary skill he will be liable as for a lack of ordinary diligence.

Meegan took Smith's boat to make certain repairs upon it. Held, that he was bound to use ordinary diligence in the care of the boat and was liable for any damages to it occasioned by launching it into the river at a time and under circumstances of great danger which ought to have been foreseen and which resulted in the destruction of the boat.

- Smith v. Meegan, 22 Mo. 150.

Thus it is apparent that the skill required in different cases varies greatly according to the nature of the work required, but in all cases honesty and good faith are required of the bailee.

Rights of the Bailee. The bailee, for hire, has the right to the undisturbed possession of the chattel during the accomplishment of the purposes of the bailment, and when the work is completed he has the right to demand suitable compensation. This compensation may be fixed in advance or left to be computed later on a basis of what is just and reasonable.

Redelivery. When the service required by the bailment. has been completed, it is the bailee's duty to deliver the chattel to the bailor, and it is the duty of the bailor to pay the compensation. The delivery back must be to the bailor, his agent, or to his order. It is customary for warehousemen who conduct places of storage, also wharfingers who keep wharves on which goods are received and shipped for hire, to give to the bailor,

or owner of the goods, at the time the goods are delivered, a receipt known as a warehouse or wharfinger's receipt. These receipts are generally considered as representing the property itself and are assignable from one person to another, and the warehouseman is held to be the bailee of the person to whom the receipt is transferred.

A bill of lading represents the property for which it is given, and by its indorsement, or delivery without indorsement, the property in the goods may be transferred where such is the intent in making the indorsement or delivery. - Dodge v. Meyer, 61 Calif. 405.

Lien. Although, as we have said, it is the duty of the bailee to deliver back the chattel, still he may keep possession until he is paid for his services on the chattel or payment has been tendered to him. This right is called a lien and exists in favor of any bailee who has performed services in regard to the thing bailed such as repairing it or storing it.

This lien holds only for the service bestowed upon the particular chattel, and lasts only while the bailee retains possession.

Bowers had a truck repaired by Andrews. Andrews, by right of lien, may retain possession of the truck until Bowers pays him for the work done. He cannot, however, hold the truck for any other debt.

Hired Use of a Chattel. The hiring of a chattel for use is frequently illustrated in everyday transactions, as in the hiring of a bicycle or a rowboat. After the contract is made it is the bailor's duty to deliver the chattel and to allow the bailee or hirer to have possession for the agreed purpose or during the stipulated time.

Buck leased Hickok a farm for one year, and agreed to provide a horse for Hickok to use during the term. He furnished a horse at first, but took it away and sold it before the expiration of the term. Held, that Hickok had an interest in the horse for the period, and could recover damages from Buck for taking it away. - Hickok v. Buck, 22 Vt. 149.

It is the bailee or hirer's duty to use the chattel with care, and for no other purpose than that for which it was hired. He also has a further duty to return it at the termination of the bailment and to pay the consideration for its use. As in other instances of a mutual benefit bailment, the bailee must use ordinary care and diligence. This is the rule only when the chattel is used as agreed. And if the bailee uses the hired property in