the bailee can recover the full value of the chattel, holding the surplus over his own interest for the bailor, and this " will be a bar to a subsequent action by the bailor.

49

As to actions by the bailor against third persons for damage to the hired chattel, when the bailment is for a definite period the bailor cannot bring such action (such right existing only in the bailee) unless such damage affects the bailor's reversionary interest in the chattel. Since the bailor is entitled to receive the chattel at the end of the bailment, however, if such injury is so serious or permanent as to affect the chattel after its return to him, then the bailor may to that extent recover from such third persons.50 When the bailment is for an indefinite time, so that the bailor may terminate it at his option, then, for any injury to the chattel, he, as well as the bailee, may bring suit against the third person committing such injury."

51

48 LITTLE v. FOSSETT, 34 Me. 545, 56 Am. Dec. 671, Dobie Cas. Bailments and Carriers, 71; White v. Webb, 15 Conn. 302; American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479; Gillette v. Goodspeed, 69 Conn. 363, 37 Atl. 973; Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134; Walsh v. United States Tent & Awning Co., 153 Ill. App. 229. If a bailee has sued for and collected the entire damage done to personal property in his possession, the true owner of such property may by assumpsit, recover of such bailee the amount so collected. Walsh v. United States Tent & Awning Co., 153 Ill. App. 229.

49 Clarke v. Poozer, 2 McMul. (S. C.) 434; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197. But see Mears v. London & S. W. Ry. Co. (Eng.) 11 C. B. (N. S.) 850; Eldridge v. Adams, 54 Barb. (N. Y.) 417. Unless bailee has absolute right to retain bailed property for definite time, trespass may be brought against wrongdoer to property, either in name of bailor or bailee, Strong v. Adams, 30 Vt. 221, 73 Am. Dec. 305; or trover, Drake v. Redington, 9 N. H. 243. See, also, Hurd v. West, 7 Cow. (N. Y.) 752; Halyard v. Dechelman, 29 Mo. 459, 77 Am. Dec. 585; Howard v. Farr, 18 N. H. 457; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197; Clarke v. Poozer, 2 McMul. (S. C.) 434. A bailee for a definite term may maintain trespass against his bailor for a wrongful retaking of the property. BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84. See Angus v. McLachlan, 23 Ch. Div. 330. In trover by a bailee against his bailor, the measure of damages is the value of the bailee's special interest in the goods; but in trover against a stranger the bailee recovers the entire value of the goods, and must hold the excess over his special interest in trust for the bailor. Benjamin v. Stremple, 13 Ill. 466. See, also, Soper v. Sumner, 5 Vt. 274; Lexington & O. R. Co. v. Kidd, 7 Dana (Ky.) 245; Gordon v. Harper, 7 T. R. (Eng.) 9.

50 New Jersey Electric Ry. Co. v. New York, L. E. & W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849. See Schouler, Bailm. (2d Ed.) § 154; Howard v. Farr, 18 N. H. 457; White v. Griffin, 49 N. C. 139. See, also, Lexington & O. R. Co. v. Kidd, 7 Dana (Ky.) 245; Mears v. London & S. W. Ry. Co. (Eng.) 11 C. B. (N. S.) 850.

51 Bac. Abr. "Trespass," C; Id. "Trover," C; 2 Bl. Comm. 396; Gordon v. Harper, 7 Term R. (Eng.) 9; Pain v. Whittaker, 1 Ryan & M. (Eng.) 99;

DOB.BAILM.-8

SAME ASSIGNABILITY OF THE BAILEE'S INTEREST 49. Where the bailment is for a definite time, and is not personal to the bailee, the bailee's interest in the hired chattel is assignable.

When the bailment is personal to the bailee by virtue of confidence reposed in him personally, this by its very terms forbids any assignment of his interest by the bailee.52 Again, when the bailment is not for a definite time, but is one at will, terminable at the pleasure of either party, the interest of the bailee is too elusive and indefinite to be capable of assignment.53 An attempt, in either of these two cases, by the bailee to transfer his interest to a third person, would confer on the latter no property in the hired chattel. It would, on the other hand, give the bailor the right to put an end to the bailment and bring trover or trespass against such transferee, who took possession of the chattel."

54

But when the hiring is for a definite time, and when also there is no personal confidence reposed in the bailee, so that the bailment is not a personal one, then the bailee's interest is assignable and he can transfer it to a third person.** Such third person, as

Wilbraham v. Snow, 2 Saund. (Eng.) 47a, notes by Williams, etc.; Nicolls v. Bastard, 2 Cromp. M. & R. (Eng.) 659; Lacoste v. Pipkin, 13 Smedes & M. (Miss.) 589. See, also, Story, Bailm. § 394; Flewellin v. Rave, 1 Bulst. (Eng.) 68, 69; William v. Gywn, 2 Saund. (Eng.) 46, 47, and note.

52 Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. See, also, Dunlap v. Gleason, 16 Mich. 158, 93 Am. Dec. 231.

58 BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73.

54 BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73.

55 "A party may lease his farm for years, with the stock and tools upon it; the whole lease, it can hardly be doubted, may be assigned. A party may let furnished lodgings for a term; the lessee has an assignable interest in the furniture. * So a party who should lease his livery stable, with his stock of horses and carriages, for a term of years, could hardly complain if the lessee should assign his interest, unless some restriction was introduced in the lease." BAILEY v. COLBY, 34 N. H. 29, 36, 37, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73. The hirer's transfer of his bene ficial interest alone, made with due reservation of the bailor's permanent ownership, should be upheld, unless the use was strictly personal or precarious. Vincent v. Cornell, 13 Pick. (Mass.) 294, 23 Am. Dec. 683; Nash v. Mosher, 19 Wend. (N. Y.) 431. See Fenn v. Bittleston, 7 Exch. 152; Day v. Bassett, 102 Mass. 445; Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346.

A factor may pledge the goods to the extent of his own lien thereon, if he avowedly confines his pledge to that, and does not exceed his interest. Man

the bailee's assignee, would take in general the same interest that the bailee had." The original bailee, however, continues liable to the original bailor for any damage to, or the loss of, the hired chattel, due to the negligence of the assignee, his servants or agents. The basis of this rule is sometimes said to be lack of privity between the original bailor and the bailee's assignee; and sometimes, with more reason, the rule is grounded on the general rules governing principal and agent and master and servant."

SAME-BAILOR'S WARRANTY OF TITLE OR INTEREST 50. The bailor warrants that he has sufficient title or interest in the hired chattel to make the bailment.58

In the very act of creating the bailment, the bailor impliedly warrants that his title or interest in the thing hired is sufficient to enable him to make the bailment in question. This is anal

59

v. Shiffner, 2 East, 523-529; McCombie v. Davies, 7 East, 6; Urquhart v. McIver, 4 Johns. (N. Y.) 103; Whitwell v. Wells, 24 Pick. (Mass.) 25, 31. And see ante, §§ 47, 48. Hirer of personal property cannot, by sale thereof, though to a purchaser in good faith, pass title. Russell v. Favier, 18 La. 585, 36 Am. Dec. 662.

56 BAILEY v. COLBY, 34 N. H. 29, 66 Am. Dec. 752, Dobie Cas. Bailments and Carriers, 73.

57 Goddard, Bailm. & Carr. § 120.

58 It is frequently said that the bailor, in a hiring for use, warrants that the hired thing is suitable for the purpose of the hiring. Harrington v. Snyder, 3 Barb. (N. Y.) 380; Leach v. French, 69 Me. 389, 392, 31 Am. Rep. 296. See, also, Horne v. Meakin, 115 Mass. 326. It is believed, though, that this states the case too strongly against the bailor and that his liability is not an absolute warranty, but merely a duty to disclose to the bailee any defects which he knew or by the exercise of due care might have known. COPELAND V. DRAPER, 157 Mass. 558, 32 N. E. 944, 19 L. R. A. 283, 34 Am. St. Rep. 314, Dobie Cas. Bailments and Carriers, 25. See, ante, p. 31. See, also, Van Zile, Bailm. & Carr. § 123; Goddard, Bailm. & Carr. § 113. In favor of the warranty theory, see 1 Halsbury, Laws of England, p. 550; Sutton v. Temple, 12 M. & W. (Eng.) 52; Mowbray v. Merryweather, 2 Q. B. 640. If he gives him no notice of any vicious propensity of the horse, except to tell him, in answer to an inquiry, that the horse is all right, except a little "skeery," when he knows that the horse has a vicious habit, he will be liable for any injuries sustained by reason of such vicious habit. Kissam v. Jones, 56 Hun, 432, 10 N. Y. Supp. 94. See, also, Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699. Plaintiff cannot recover hire of slave, if he knew slave was unsound, and fraudulently concealed it from defendant, providing the latter, within reasonable time after discovering fraud, offered to return slave and rescind contract. Reading v. Price, 3 J. J. Marsh. (Ky.) 61, 19 Am. Dec. 162. 59 Goddard, Bailm. & Carr. § 113; Van Zile, Bailm. & Carr. § 121; Schouler, Bailm. (2d Ed.) § 151; Story, Bailm. §§ 383, 387. “A pledgor, by the act

ogous to the covenant of the lessor of lands for quiet enjoyment by the lessee, the implied warranty of title by one purporting to make a sale of personalty,"1 and the implied warranty of authority of an agent who undertakes to make a contract with a third party binding on his principal."

In a hiring for use, the bailor stipulates that the bailee shall have the exclusive use of the chattel for the agreed time. Manifestly, then, in creating the very bailment, the bailor impliedly warrants that he has sufficient title or interest in the chattel to confer such use on the bailee for such time. If, therefore, the bailee's use is disturbed by a superior title in a third person, the bailor is liable for the amount of damage which the bailee thereby suffers. Such warranty applies only against the claims of third persons that rest on a real legal basis. When his possession is disturbed. by the mere tortious acts of third persons, the bailee's remedy is against them alone."

SAME LIABILITY FOR INJURIES TO THIRD PERSONS 51. For injuries to third persons, due to the negligent use of the hired chattel, the bailee alone is responsible.

The bailee has the exclusive use of the hired chattel; he alone exercises entire control over it. Naturally, then, when a third person is injured, owing to the negligent use of the chattel, he must proceed solely against the bailee; he has no remedy against the bailor. The bailor, by creating the bailment, has severed from

64

of pledging, impliedly warrants that he is the general owner of the property pledged; and he is liable to the pledgee in damages, if the property, or any part of it, is taken from the latter under a superior title." Jones, Pledges, § 52. See Goldstein v. Hort, 30 Cal. 372; Mairs v. Taylor, 40 Pa. 446; Cass V. Higenbotam, 27 Hun (N. Y.) 406.

60 Tayl. Landl. & Ten. § 308; 1 Schouler, Pers. Prop. (2d Ed.) § 29. 61 Williston, Sales, § 216; American Sales Act, § 13.

62 Mechem, Agency, §§ 544, 545.

63 Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279; Playter v. Cunningham, 21 Cal. 229; Surget v. Arighi, 11 Smedes & M. (Miss.) 87, 49 Am. Dec. 46.

64 McColligan v. Pennsylvania Ry. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; New Jersey Electric Ry. Co. v. New York, L. E. & W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849; Sproul v. Hemmingway, 14 Pick. (Mass.) 1, 25 Am. Dec. 350; Schular v. Hudson River R. Co., 38 Barb. (N. Y.) 653; Carter v. Berlin Mills Co., 58 N. H. 52, 42 Am. Rep. 572; Stevens v. Armstrong, 6 N. Y. 435; Rapson v. Cubitt, 9 Mees. & W. (Eng.) 710. And see Powles v. Hider, 6 El. & Bl. (Eng.) 207; Venables v. Smith, 2 Q. B. Div. (Eng.) 279. Compare King v. Spurr, 8 Q. B. Div. (Eng.) 104. The owner of a boat, who leases it to another to be used as a

himself the use of the chattel within the limits of the contract of hiring; he also thereby relieves himself from responsibility to third persons resulting solely from such use.

65

Nor does the bailee so represent or stand for the bailor as to create the relation here of master and servant or principal and agent, thus rendering the acts of the bailee legally those of the bailor. The bailor does not employ the bailee, but rather the bailee hires the use of a chattel, obtaining the benefits of such use and assuming its burdens. Therefore, when the bailee or his servant is negligent in the use of the chattel, the bailor cannot be connected therewith so as to render him liable to third persons for the resulting damage.

SAME--EXPENSES ABOUT THE BAILED CHATTELS

52. The bailee must bear ordinary expenses incidental to the use of the thing; but for extraordinary expenses the bailor is responsible.

66

Custom, or the contract of hiring, will ordinarily determine which party is to bear the various expenses connected with the bailment. When both of these are silent, it is a fair presumption that the bailee, who bargains for the use of the chattel, should bear the expenses necessarily and reasonably incident to such use, as, for example, feed for a horse. The compensation, it seems, is ordinarily fixed on this assumption. The express or presumed. intention must govern; and, as bearing upon this point, in doubtful cases the bailment purpose, and the rate and nature of the recompense must be duly considered.

67

It would seem a fair presumption that the parties intended the bailor to bear any unforeseen and extraordinary expense, which permanently enhances the value of the property, or preserves it from loss, provided, of course, the expense was not necessitated

68

ferry, is not liable for an accident occurring on the boat while in use of the latter. Claypool v. McAllister, 20 Ill. 504. And see Tuckerman v. Brown, 17 Barb. (N. Y.) 191.

65 McColligan v. Penn. Ry. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; New Jersey Electric Ry. Co. v. New York, L. E. & W. R. Co., 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849, and other cases cited in preceding note.

• Handford v. Palmer, 2 Brad. & B. (Eng.) 359, 5 Moore, 74.

67 Schouler, Bailm. § 392; Handford v. Palmer, 2 Brad. & B. (Eng.) 359, 5 Moore, 74.

68 Harrington v. Snyder, 3 Barb. (N. Y.) 380.