No. 989.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 1, art. 2.

No. 990

the purpose of prostitution, the contract would be void. (a)

If the unlawful use was not mentioned in the agreement, neither of the parties could prove that the contract was unlawful in order to avoid its performance; if the contract was in writing, it could not be changed nor altered by parol proof; and if it was merely verbal, the delinquent party could not be heard to allege his own turpitude: Nemo auditur turpitudinem suam allegans.

4. Of the time for which the hiring is to take place.

989. In general, the time during which the hiring is to continue, is made a part of the contract, but sometimes this is left uncertain; in these cases the intention of the parties may be collected from circumstances; if, for example, a pair of horses and a carriage are hired to you at a certain price per day, and the contract mentions that you hire them to make a journey from Philadelphia to Richmond, it cannot be doubted but you will be entitled to them for the whole journey.

Art. 2.-Of the price or recompense.

990. There can be no contract of hiring without a price or consideration, for if there be none, the contract will be a loan. It is not indispensable that the agreement as to the price should be expressed, it will be sufficient when implied, and then the customary price must be paid, or if there be no customary price, then a reasonable price. Whether the consideration be a price paid in money, or a recompense in something else, it is still a hiring, and both cases are considered as bailments for hire.(b)

(a) Shep. To. 163; Co. Litt. 206 b; 10 East, 534; 1 Esp. 13; 1 Bos. & Pull. 340, n.

(b) Mr. Justice Story is of opinion that the consideration may be paid in money or other thing. Bailm. § 377; while Mr. Chancellor Kent, who has followed the civilians, describes hiring as a pecuniary bailment. 2 Kent, Com. 385.

No. 991.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 1, art. 3, 4.

Art. 3.-Of the letter.

No. 992.

991. The letter must be competent to make a contract, for one not sui juris, or incompetent to make an agreement, cannot let a thing to hire. The obligations of the letter and the rights of the hirer are correlative terms, the obligations of the one are the rights of the other. Again, the obligations of the hirer are the rights of the letter. Under this head will be considered only the obligations of the letter.

These are not clearly defined by the common law, and to ascertain them we must have recourse to the civil law, from which so many principles have been transplanted, and which, cultivated by the nursing care of the common law, have taken such deep root. In virtue of this contract, it is then said, the letter of a thing to hire impliedly engages to secure to the hirer the full use and enjoyment of the thing hired, and to fulfil his own engagements and trusts, in respect to it, according to the original intention of the parties. This implies the obligation to deliver the thing to the hirer; to refrain from every obstruction to the use of it by the hirer during the period of the bailment; to do no act which shall deprive the hirer of the thing; to warrant the title and possession to the hirer, to enable him to use the thing or to perform the service; and finally to warrant the thing free from any fault inconsistent with the use of it. Though these obligations, which are deduced from the nature of the contract, appear perfectly reasonable, it is difficult to find any authority supporting them in the common law.

Art. 4.-Of the hirer.

992. In considering the obligations of the letter, we have incidentally mentioned the rights of the hirer, the principal of which are the following:

1. He acquires a special property in the thing hired, during the continuance of the contract, and for the purposes expressed or implied by it. (a)

(a) Jones' Bailm. 85; Bac. Ab. Bailment, C.

No. 993.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 1, art. 4.

No. 993.

2. He acquires the exclusive right to the use of the thing during the time of the bailment, (a) and if he misuses it, this does not authorize the letter to take it by force,(b) but such act puts an end to his special property, and the thing may be recovered in trover.(c)

993. Among the obligations of the hirer the following are the principal:

1. He is bound to take the same care to preserve the thing, which a good and prudent father of a family would take of his own. (d)

2. He is not only bound to take good care of the thing, but he must use it for no other purpose than that for which it is hired; if a carriage be hired to go from Philadelphia to New York, it cannot be used to go to Baltimore. (e) And if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss occur, although by inevitable necessity, he will be responsible for it. But these responsibilities on the part of the hirer take place, only when he has the possession as well as the use of the thing hired; for when the owner, or his agents, retains the possession, the hirer is not in general responsible for an injury done to it; for example, when the letter of a carriage and a pair of horses sent his driver with them, and an injury occurred, the hirer was held acquitted of any responsibility, (f) except, indeed, the obligation of taking ordinary care of the inside of the carriage

(a) Roberts v. Wyatt, 2 Taunt. 268.

(b) Hartford v. Jackson, 11 N. Hamp. 145; Lee v. Atkinson, Yelv. 172. (c) 2 Saund. 47 f.; Clarke v. Poozer, 2 McMullan, 434; Morse v. Crawford, 17 Verm. 499; Setzar v. Butler, 5 Iredell, 212.

(d) Story, Bailm. § 398; Poth. Louage, n. 190; Domat, B. 1, t. 4, § 2, art. 4; Code, 4, 65, 28; Ayl. Pand. 463; Milon v. Salisbury, 13 John. 211; 17 Mass. 502; McNeils v. Brooks, 1 Yerg. 75.

(e) Jones' Bailm. 68; Angus v. Dickerson, 1 Meigs, R. 459; Ld. Raym. 915; 5 Mass. 104.

(f) Hughes v. Boyer, 9 Watts, 556, 562.

No. 994.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 1.

No. 995.

where he sits, the glasses, and such things as are under his immediate control. (a)

3. The hirer is bound to restore the thing hired, when the bailment is determined. The time, place, and the mode of its restitution, are governed by the circumstances of each case, and depend upon the rules of presumption of the intention of the parties, as in other cases of bailment, unless there has been an express agreement on the subject.(b)

4. There is also an implied obligation, when there has been no express contract, that the hirer will pay the hire or recompense.

§ 2. Of the locatio operis or hiring of labor.

994. Hiring of labor is a contract by which one of the contracting parties, called the employer, gives to the other, called the workman or undertaker, a certain work to be performed, which the latter promises to perform, for a price or recompense which the former binds himself to pay. This head will be divided into two articles: 1, hire of labor; 2, hire of custody.

Art. 1.-Of the hire of labor, and the nature and requisites of this

contract.

1. Of its nature.

995. The contract of hiring of labor differs mainly from the contract of the hire of things, in this, that the hire of a thing is given for a certain price or recompense, paid to the letter, which is the object of the letter, and the work given to be done forms the substance of the former. In the contract for the hire of a thing the hirer agrees to pay the price or hire, and in a hiring of labor or services, the employer binds himself to pay the price or hire.

There is a considerable resemblance between this contract of hiring of labor and a sale; if I order a carriage to be made and the materials are to be fur

(a) Poth. Louage, n. 196; Jones' Bailm. 88.

(b) Story, Bailm. § 415.

No. 996.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 1.

No. 999.

nished by the coachmaker, there is a contract of sale; so if I order a tailor to make me a coat, and he is to furnish the materials, it is a sale; but if I furnish the cloth to a tailor to make me a coat, and he merely puts his work upon it, it is a contract of hiring of labor. This would be the case also, were the tailor to furnish the buttons, twist, etc., commonly called the trimmings. (a)

2. Of the requisites to form the contract of hiring of labor.

996. As in the contract for the hire of a thing, so in this contract there are three requisites, namely: 1, a work to be performed; 2, a price or recompense; 3, the consent of the parties.

1° A work to be done.

997. The work to be done must be such as can be performed, for if the contract were to do an impossible thing, it would be void. The thing to be done must be lawful; for example, if you employed a painter to paint a libel, or a printer to print an obscene work, the contract would be void.

2° of the price.

998. It is evident that there must be a price or recompense, or the contract would no longer be a hiring for labor, but a mandate. But still it is not requisite that the parties should have expressly agreed upon a price, one may be implied. If I send cloth to a tailor with a request that he make me a coat, the law presumes that I will pay him what he justly deserves, a quantum meruit.

3° Of the consent of the parties.

999. As in all other contracts, there must be a consent between the parties.

VOL. I.

(a) Poth. Louage, n. 394; Story, Bailm. § 423.

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