captors, by revenue officers, by prize agents,15 by officers of courts,16 and by marine salvors.17 Thus, in the last case, if a disabled ship is abandoned in a storm by the crew, and is towed into port by another vessel, by the rules of admiralty, the owner of the towing vessel is treated as a quasi bailee and is entitled to compensation for the services rendered.

Locatio Rei and Locatio Operis Bailments

As we have seen, in locatio rei the bailee is benefited by the bailment and pays a compensation therefor; while in locatio operis, the benefit of the bailment accrues to, and the compensation is paid by, the bailor. As a result of this, any attempt to treat together the rights and duties of the parties in both classes. is apt to be confusing. The two will therefore be considered separately. The rest of the present chapter will be devoted to locatio rei, while chapter 6 will discuss locatio operis.

LOCATIO REI, OR THE HIRED USE OF A THING

46. Where things are hired for use, the rights and duties of the parties, as in other bailments, are controlled primarily by the bailment contract; but, when not thus controlled, they are implied by law.

As in all other classes of bailments, the parties may determine for themselves the nature and extent of their mutual rights and

13 Story, Bailm. § 614; The Betsey, 1 W. Rob. Adm. 93, 96. Captors are bound to exercise ordinary care. The Maria, 4 W. Rob. Adm. 348, 350; The Anne, 3 Wheat. 435, 4 L. Ed. 428; The George, 1 Mason, 24, Fed. Cas. No. 5,328; The Lively, 1 Gall. 315, Fed. Cas. No. 8,403.

14 Burke v. Trevitt, 1 Mason, 96, 101, Fed. Cas. No. 2,163.

15 Story, Bailm. § 619; The Rendsberg, 6 C. Rob. Adm. (Eng.) 142.

16 Story, Bailm. §§ 124-135, 620. See, generally, Burke v. Trevitt, 1 Mason, 96, 101, Fed. Cas. No. 2,163; Browning v. Hanford, 5 Hill (N. Y.) 588, 592, 40 Am. Dec. 369; Trotter v. White, 26 Miss. 88, 93. Ordinary diligence is the measure of liability. Cross v. Brown, 41 N. H. 283; Blake v. Kimball, 106 Mass. 115; Aurentz v. Porter, 56 Pa. 115; Burke v. Trevitt, 1 Mason, 96, Fed. Cas. No. 2,163; The Rendsberg, 6 C. Rob. Adm. (Eng.) 142. The same rules apply to receivers and other depositaries appointed by courts. Story, Bailm. § 621; Knight v. Plimouth, 3 Atk. (Eng.) 480; Beauchamp v. Silverlock, 2 Rep. Ch. (Eng.) 5; Horsely v. Chaloner, 2 Ves. Sr. (Eng.) 83; Rowth v. Howell, 3 Ves. (Eng.) 566; Wren v. Kirton, 11 Ves. (Eng.) 377. As to sheriffs and constables (the case most frequently occurring), see Snell v. State, to Use of Greenfield, 2 Swan (Tenn.) 344; Vance v. Vanarsdale, 1 Bush (Ky.) 504; Cresswell v. Burt, 61 Iowa, 590, 16 N. W. 730; Bridges v. Perry, 14 Vt. 262; Fletcher v. Circuit Judge of Kalkaska, 81 Mich. 186, 45 N. W. 641.

17 Salvors are entitled to compensation for their services. This compensation is called "salvage," and renders the bailment one for hire. Story, Bailm.

liabilities by any special contract, not against public policy or in violation of law. The discussion that follows treats of these rights and duties when they are not controlled by the special contract of the parties to the bailment. In locatio rei, the bailee is the hirer of the use of the thing; the bailor is the letter. The use of the terms "bailor" and "bailee," however, seems preferable.

SAME USE OF BAILED CHATTELS BY THE BAILEE 47. The bailee is entitled to the beneficial use of the thing hired; but such use is limited to the time, purpose, and manner for which the thing was hired.

The bailee acquires the right, and the exclusive right, to the use of the thing hired during the time of the bailment.18 This right is good against the world, and not even the owner can disturb the bailee in the lawful enjoyment of it.1 For this is the benefit accruing to the bailee, for which he pays the stipulated compensation. Nor can a creditor of the bailor, during the term of hire, attach the goods and take them from the custody of the bailee; since the bailor's creditor can in such case claim no higher right than that of the bailor. If, during such time, the thing is redelivered to the owner for a temporary purpose only, he is bound to deliver it back afterwards to the bailee.21 As long as the bailee keeps within the terms of the bailment, this right is clear and presents little difficulty.

20

§ 622; Abbott, Shipp. (5th Ed.) pt. 3, c. 10, §§ 1, 2; In re Cargo ex Schiller, 2 Prob. Div. (Eng.) 145. See, also, Seven Coal Barges, 2 Biss. 297, Fed. Cas. No. 12,677; The Fannie Brown (D. C.) 30 Fed. 215; The Mulhouse, Fed. Cas. No. 9,910; Nickerson v. John Perkins, 3 Ware, 87, Fed. Cas. No. 10,252.

18 Harris v. Maury, 30 Ala. 679; Schoyer v. Leif, 11 Colo. App. 49, 52 Pac. 416; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Zell v. Dunkle, 156 Pa. 353, 27 Atl. 38; Ledbetter v. Thomas, 130 Ala. 299, 30 South. 342.

19 Story, Bailm. § 395; HICKOK v. BUCK, 22 Vt. 149, Dobie Cas. Bailments and Carriers, 63; Camp v. Dill, 27 Ala. 553; Bower v. Coker, 2 Rich. (S. C.) 13.

20 HARTFORD v. JACKSON, 11 N. H. 145, Doble Cas. Bailments and Carriers, 64. Lessee has a right to property leased during lease, paramount to any right of lessor or his creditors; and, in enjoyment of this right, they cannot disturb him with impunity. They cannot take the property out of his possession. Smith v. Niles, 20 Vt. 315, 49 Am. Dec. 782. See, also, Truslow v. Putnam, 4 Abb. Dec. (N. Y.) 425; Anderson v. Heile, 64 S. W. 849, 23 Ky. Law Rep. 1115.

21 Roberts v. Wyatt, 2 Taunt. (Eng.) 268,

Conversion and Misuser

The bailee must respect the limitations on his use imposed by the contract of hiring; his use of the thing is limited strictly to the time, purpose, and manner therein set out. He therefore has no right to use the thing during a longer time, or for a different purpose, or in another manner from that specified by the bailment contract.22 Thus, if a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or as a beast of burden. 23 So, if a carriage and horses are hired for a journey to Boston, the hirer has no right to use them for making a journey to New

22 Story, Bailm. § 413. Compare "Gratuitous Loans," ante, p. 89. And see Cullen v Lord, 39 Iowa, 302; Kennedy v. Ashcraft, 4 Bush (Ky.) 530; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576; Martin v. Cuthbertson, 64 N. C. 328. If hiring be general, any prudent use of the thing is permissible. Horne v. Meakin, 115 Mass. 326; McLauchlin v. Lomas, 3 Strob. (S. C.) 85; Harrington v. Snyder, 3 Barb. (N. Y.) 380. See, also, Ledbetter v. Thomas, 130 Ala. 299, 30 South. 342; Mayer v. Springer, 192 Ill. 270, 61 N. E. 348, Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Markoe v. Tiffany & Co., 163 N. Y. 565, 57 N. E. 1116; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790; McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N. W. 873, 3 Ann. Cas. 468; Bac. Abr. "Bailment," C; Id. "Trover," C, D, E; Wilbraham v. Snow, 2 Saund. (Eng.) 47a, 47f, 47g, note by Williams & Patteson; Isaack v. Clark, 2 Bulst. (Eng.) 306, 309; Wilkinson v. King, 2 Camp. (Eng.) 335; Loeschman v. Machin, 2 Starkie (Eng.) 311; Youl v. Harbottle, Peake (Eng.) 49; Rotch v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Cooper v. Willomatt, 1 Man., G. & S. (Eng.) 672; Harrington v. Snyder, 3 Barb. (N. Y.) 380; Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435; Wentworth v. McDuffie, 48 N. H. 402; De Tollenere v. Fuller, 1 Mill, Const. (S. C.) 117, 121, 12 Am. Dec. 616; Jones, Bailm. 68, 69, 121; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 917, Dobie Cas. Bailments and Carriers, 1; Buchanan v. Smith, 10 Hun (N. Y.) 474; Fisher v. Kyle, 27 Mich. 454; Lane v. Cameron, 38 Wis. 603; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. Where a horse meets with an injury through his own fault, but while the bailee is misusing it, the bailee is liable. Lucas v. Trumbull, 15 Gray (Mass.) 306. An infant is not liable on a contract of hire, but, if he uses the property in any other than the stipulated way, he is liable for conversion. Jennings v. Rundall, 8 Term R. (Eng.) 335; Homer v. Thwing, 3 Pick. (Mass.) 492. Cf. Whelden v. Chappel, 8 R. I. 230. For collection of cases, see 6 Cent. Dig. "Bailments," §§ 64-74; 3 Dec. Dig. "Bailments," § 16; 3 Am. & Eng. Enc. of Law, pp. 752-759; 3 Ann. Cas. 170; 12 Ann. Cas. 692; 38 Cyc. 1997. See, also, Story, Bailm. §§ 413-413d; Schouler, Bailm. §§ 139-142; Goddard, Bailm. & Carr. §§ 115-119; Van Zile, Bailm. & Carr. 124-126; 1 Street, Foundations of Legal Liability. p. 231 et seq.; Id. p. 257; 2 Street, Foundations of Legal Liability, pp. 286-288; note 26 L. R. A. 366.

23 Jones, Bailm. 68, 88. See Wilbraham v. Snow, 2 Saund. (Eng.) 47a, 47g, and note; Lockwood v. Bull, 1 Cow. (N. Y.) 322, 13 Am. Dec. 539; McNeill v. Brooks, 1 Yerg. (Tenn.) 73.

24

York. Again, if horses are hired for a week, the hirer has no right to use them for a month.25

Where the bailee transcends the bailment contract, along any of the lines indicated, there can be no question that he has committed an actionable wrong, and that he can be held liable for any damages proximately connected with his breach. But whether in such cases there is a conversion, rendering the bailee absolutely responsible, is a question on which there is much confusion and conflict.20

Where the bailee undertakes to act as the unqualified owner of the thing hired, as where he attempts to sell it to a third person, this is a clear case of conversion.27 When the bailee keeps within the bailment contract, but merely fails to exercise the ordinary care in the use of the thing imposed on him by the nature of the bailment, it is just as clear that this is mere negligence and is in no sense a conversion.28 Between these two, however, lie many cases as to which it is difficult to speak authoritatively.

24 Jones, Bailm. 68. And see COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 915, Dobie Cas. Bailments and Carriers, 1; Rotch v. Hawes, 12 Pick. (Mass.) 136, 22 Am. Dec. 414; Homer v. Thwing, 3 Pick. (Mass.) 492; WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66. Where a person who had hired a horse and buggy to drive to a specified place loaned them to defendant to drive to a different place, and while driving there he collided with a trolley pole and street car, destroying the horse and buggy, defendant, if he knew the purpose for which they had been hired, was liable to the owner, even if the collision was accidental and without negligence on his part. Palmer v. Mayo, 80 Conn. 353, 68 Atl. 369, 15 L. R. A. (N. S.) 428, 125 Am. St. Rep. 123, 12 Ann. Cas. 691.

25 Jones, Bailm. 68; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 915, Dobie Cas. Bailments and Carriers, 1. And see WHEELOCK v. WHEELWRIGHT, 5 Mass. 104, Dobie Cas. Bailments and Carriers, 66; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576.

26 See cases and authorities cited in note 22.

27 Schwartz v. Clark, 136 Ill. App. 150; Short v. Lapeyreuse, 24 La. Ann. 45; Geneva Wagon Co. v. Smith, 188 Mass. 202, 74 N. E. 299; Howard v. Seattle Nat. Bank, 10 Wash. 280, 38 Pac. 1040, 39 Pac. 100; Bryant v. Kenyon, 123 Mich. 151, 81 N. W. 1093; Sargent v. Gile, 8 N. H. 325; Lovejoy v. Jones, 30 N. H. 164; Swift v. Moseley, 10 Vt. '208, 33 Am. Dec. 197; Sanborn v. Colman, 6 N. H. 14, 23 Am. Dec. 703; Johnson v. Willey, 46 N. H. 75; Rodgers v. Grothe, 58 Pa. 414; Cooper v. Willomatt, 1 C. B. 672; Marner v. Bankes (C. P.) 16 Wkly. Rep. 62. But a bailee may have an assignable interest, which interest he may lawfully transfer. Post, p. 114.

28 Thus, in an action for conversion of a horse, it appeared that defendant had hired the horse for a journey, and had carried, in addition to his own weight, $2,000 in specie, weighing 160 pounds. The court said: "If, however, an excessive weight be put on the horse, it will not amount to a conversion, but will be an abuse of the animal, for which, if injured by it, the owner may recover damages in an action on the case. By the contract of hiring, the hirer is bound to use the horse in a moderate and prudent manner. If the

Now conversion implies the assertion of a right of dominion over personalty inconsistent with the ownership of another.20 It involves an interference with that dominion which is incident. to the ownership of goods. It is something entirely apart from, and disassociated with, injury to chattels. As soon as a conversion takes place, the owner is thereby immediately vested with the right to sue the wrongdoer for the entire value of the goods. converted. It would thus seem clear that not every wrongful

hiring be to ride, he must not ride immoderately; if to work, he must not work the animal unreasonably-or, in either case, he will be liable, in action on the case, for the damages resulting from his misconduct, but not for a conversion, because the immoderate use of the animal during the time and in the mode stipulated by the contract does not amount to the assertion of ownership and of a right distinct and different from that acquired by the contract. It may have resulted from ignorance or carelessness, without any design whatever to exceed the authority given by the owner." McNiell v. Brooks, 1 Yerg. (Tenn.) 73.

Conversion will not lie against a bailee, because of his omission to place the horse in a barn at night, whereby it escaped or was stolen; there being no exercise of dominion by him, but merely a negligent omission to comply with his contract of bailment. Rosenberg v. Diele, 61 Misc. Rep. 610, 114 N. Y. Supp. 24. See, also, Forehead v. Jones, 84 Ga. 508, 10 S. E. 1090; Berman v. Kling, 81 Conn. 403, 71 Atl. 507; Cohen v. Koster, 133 App. Div. 570, 118 N. Y. Supp. 142; Ross v. Johnson, 5 Burr. (Eng.) 2825, 98 Eng. Reprint, 483. 29 "A conversion consists in an illegal control of the thing converted, inconsistent with the plaintiff's right of property." Perley, J., in Woodman v. Hubbard, 25 N. H. 67, 71, 57 Am. Dec. 310. See, also, Spooner v. Holmes, 102 Mass. 503, 3 Am. Rep. 491, collecting cases; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790. "The assertion of a title to, or an act of dominion over, personal property inconsistent with the right of the owner." Bigelow, Torts, 428 (quoted in Ramsby v. Beezley, 11 Or. 49, 51, 8 Pac. 288). "Any distinct act or dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it." Cooley, Torts, 448 (quoted in Hoss

feldt v. Dill, 28 Minn. 469, 475, 10 N. W. 781).

30 This right of an owner to recover as damages the value of the property converted is itself regarded as in the nature of property. It vests in him the instant the wrong is committed; the subsequent verdict and judgment serve merely to define its extent, and he cannot be deprived of it without his consent. 2 Bl. Comm. 438; Suth. Dam. § 7; Cooley, Const. Lim. 449; Westervelt v. Gregg, 12 N. Y. 211, 62 Am. Dec. 160; Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 5 Am. Dec. 291; Streubel v. Milwaukee & M. R. Co., 12 Wis. 67; Thornton v. Turner, 11 Minn. 336 (Gil. 237).

The owner cannot be compelled to accept the property in mitigation of damages. Green v. Speery, 16 Vt. 390, 42 Am. Dec. 519; Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500; Shotwell v. Wendover, 1 Johns. (N. Y.) 65. But where the conversion is merely technical, and the property is in the same condition, it has been held that the plaintiff may be compelled to accept its return in mitigation of damages. Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500; Churchill v. Welsh, 47 Wis. 39, 1 N. W. 398; Cook v. Loomis, 26 Conn. 483; Stevens v. Low, 2 Hill (N. Y.) 132.