be of almost infinite variety. The questions arising in this connection depend upon, and are governed by, the general rules of contract.12

INTEREST OF THE BAILEE-RIGHT TO BRING SUIT

61. The bailee has a special property in the bailed goods which he can protect by appropriate action, either against the bailor or third parties. The bailor can sue third parties for any injury to his reversionary interest in the bailed chattels

In locatio operis, the bailee can keep the goods, pending the accomplishment of the bailment purpose, in order that he may earn the stipulated compensation. This right of the bailee to undisturbed possession is good against all the world, and therefore the bailee has clearly a special property in the thing about which the services are to be performed 1 It is a distinctive feature of locatio operis bailments that the bailee must frequently add material of his own to the bailed goods in order to carry out the bailment purpose. His special property in the bailed goods thereby assumes an added importance.

This special property of the bailee in the goods he can protect by appropriate action against the bailor or against third persons wrongfully interfering with it. Thus the bailee can bring trespass or trover against such third parties. It is generally held

12 See, also, post, §§ 62, 65.

14

18 See Story, Bailm. § 422a; Schouler, Bailm. (2d Ed.) § 110; Engel v. Scott & Holston Lumber Co., 60 Minn. 39, 61 N. W. 825; Eaton v. Lynde, 15 Mass. 242; Grandy v. Kittredge, 8 Cush. (Mass.) 562; Morse v. Androscoggin R. Co., 39 Me. 285; BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84. This special property of the bailee is, of course, an insurable interest in the goods, which the bailee may protect by fire insurance. Fire Ins. Ass'n v. Merchants' & Miners' Transp. Co., 66 Md. 339, 7 Atl. 905, 59 Am. Rep. 162; Sheppard v. Peabody Ins. Co., 21 W. Va. 368. The bailee may insure the goods for their full value, holding any excess beyond his own interest for the bailor. Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606, 6 Am. Rep. 146.

14 Atlantic Coast Line R. Co. v. Partridge, 58 Fla. 153, 50 South. 634; Mizner v. Frazier, 40 Mich. 592, 29 Am. Rep. 562; National Surety Co. v. United States, 129 Fed. 70, 63 C. C. A. 512; Shaw v. Kaler, 106 Mass. 448; BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84; Evans v. Nichol, 4 Scott, N. R. 43. But see Morse v. Androscoggin R. Co., 39 Me. 285; In re Phoenix Bessemer Steel Co., 4 Ch. Div. (Eng.) 112. Thus, where a bailee of yarn was to procure it to be made into cloth for a commission, it was held that he had a special property in the

that the bailee can recover full damages for the loss or injury in such case, holding the excess beyond his own interest in trust for the bailor; and such a recovery is a bar to any subsequent action by the bailor.15

For any tortious injury by a third person to the bailed chattel, so serious as to affect his reversionary interest, the bailor has a right to sue such third party. When the wrongful act affects only the possession of the bailee, however, and not this reversionary interest of the bailor, the latter should have no right to sue the third party; such right being then limited to the bailee.1 The doctrine that the rights of the bailor and bailee should be separately valued and that each should sue solely for the damage to his own interest, previously referred to,1a finds in the locatio operis bailments unusually strong support.19

18

COMPENSATION OF THE BAILEE

62. Upon complete performance of the bailment, the bailee is entitled to the agreed compensation. When the work is completed, but not according to the bailment contract, or when the work is left uncompleted, various considerations affect both the right and measure of a recovery by the bailee.

yarn, and that he might maintain an action against any one who should wrongfully take it from his own possession, or from that of his servant, to whom he had delivered it to be woven. Eaton v. Lynde, 15 Mass. 242.

15 National Surety Co. v. United States, 129 Fed. 70, 63 C. C. A. 512; Moran v. Portland Steam Packet Co., 35 Me. 55; Hare v. Fuller, 7 Ala. 717; Union Pac. R. Co. v. Meyer, 76 Neb. 549, 107 N. W. 793, 14 Ann. Cas. 634; Leoncini v. Post (Com. Pl.) 13 N. Y. Supp. 825.

16 This seems to follow from the general principle that one having a reversionary interest in personal property may sue one not in possession of such property, whose wrong causes such serious and permanent injury to the property as to diminish the value of such reversionary interest. This right is said to exist on the part of the reversioner in personal, just as in real, property. See 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; Shearm. & Redf. Neg. § 119; Pollock, Torts, p. 432; Mears v. London & S. W. Ry. Co., 11 C. B. N. S. 850; Lexington & O. R. Co. v. Kidd, 7 Dana (Ky.) 245; White v. Griffin, 49 N. C. 139; Howard v. Farr, 18 N. H. 457; Hawkins v. Phythian, 8 B. Mon. (Ky.) 515.

17 WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Carriers, 85; Cowing v. Snow, 11 Mass. 415.

18 Ante, pp. 64, 87.

19 Since here the bailee's interest is a very real one, which can readily be. given a money value.

In locatio operis, the primary right of the bailee is to receive the stipulated compensation. The reward is the benefit accruing to the bailee, in consideration of which he performs the services. The receipt of the compensation by the bailee distinguishes locatio operis from all other bailments. This whole problem of the bailee's compensation is variously affected by questions of whether the services have been completely performed, and, if so, whether or not they were performed according to the bailment contract, and whether, when the services are not completed, this is due to destruction of the bailed chattel without fault of the parties, or to some fault on the part of the bailor or bailee.

There is much confusion and uncertainty in the cases, due in many instances to a failure to make the distinctions just indicated. The real question involved is also often obscured by the subtle, but often useless, niceties of common-law forms of action in states which still cling to this outworn system of pleading. The decided trend of modern decisions has been towards allowing compensation to the bailee for value conferred on the bailed chattel, with damages. to the bailor for any harm caused by the bailee's departure from the bailment contract. The treatment of compensation, accordingly, conforms to the following analysis:

1. Work fully completed

20

(a) According to mutual intent of the parties.

(b) Not according to such mutual intent.

2. Work not fully completed, owing to

(a) Destruction of the thing bailed, without fault of either party.

(b) Fault of bailor, preventing completion of the work.

(c) Fault of bailee, in abandoning the work while incom

plete.

In this connection, it should be noted that, when the person is to furnish materials out of which a thing is to be made and deliver the completed thing to another, this is not a bailment, but an agreement to sell. Again, where one is called on to perform

21

20 This analysis is practically that of Goddard (Bailm. & Carr. § 129), whose brief treatment of this topic is yet one of the clearest to be found in the books.

21 In such a case the title remains in the maker seller, with the attendant risk of loss, until after the completion of the article. See McConihe v. New York & E. R. Co., 20 N. Y. 495, 75 Am. Dec. 420; Merritt v. Johnson, 7 Johns. (N. Y) 473, 5 Am. Dec. 289; Atkinson v. Bele, 8 Barn. & Cress. (Eng.) 277; Laflin & R. Powder Co. v. Burkhardt, 97 U. S. 110, 24 L. Ed. 973. However, when an owner leaves an old article with another to be repaired, this is nev

services about goods not delivered into his possession, this is not a bailment, but a mere contract of service, as where one is engaged to paint a ship in the owner's possession. These cases belong to sales and contracts, but not to bailments. The analogies, though, are helpful.

Work Fully Completed—According to Mutual Intent of the Parties

If the work be fully completed, according to the terms of the bailment contract, so that there has been a full performance of all his duties by the bailee, he is then entitled to full compensation.22 If the amount is fixed in the contract, this is, of course, the measure of the bailee's recovery. If the amount is not so fixed, then the bailee recovers a reasonable price for his services.23

If the work be completed, but the chattel is destroyed, without fault, in the bailee's possession, before he redelivers it to the bailor, the bailee can still recover. This is placed on the doctrine of accession, by which the labor and material pass to the chattel as they are added; and the doctrine res perit domino makes the chattel perish to the owner, in its condition at the time it is destroyed.24 Of course, the bailee may change this by stipulating, expressly or by clear implication, that he shall be entitled to compensation only when he has redelivered the goods to the bailor.25 Courts, though, lean strongly against such a construction of the agreement.

ertheless a bailment, though the value of the repairs may far exceed the value of the article when delivered. Gregory v. Stryker, 2 Denio (N. Y.) 628. See, also, Schouler, Bailm. & Carr. (2d Ed.) § 111.

22 Where a person fully performed his duties under a contract of storage of a boat and to furnish materials for repairs, and the owner accepted the boat after such repairs, the bailee should be allowed recovery for his services. Webster v. Beebe, 2 Boyce (Del.) 161, 77 Atl. 769. This practically amounts only to saying that one who has fully performed his part of the contract can look to the other party for a full performance on the part of the latter.

23 Dougherty v. Whitehead, 31 Mo. 257; Sumpter v. Hedges (1898) 1 Q. B. (Eng.) 673. Of course, if the services are performed by the bailee without any express or implied promise of payment on the part of the bailor, the bailee can recover nothing for his services. As was said by Pollock, C. B., in Taylor v. Laird, 25 L. J. (Ex.) 329, 332: "Suppose I clean your property without your knowledge; have I then a claim on you for payment? One cleans another's shoes; what can the other do but put them on? Is that evidence of a contract to pay for the cleaning." See 1 Halsbury, Laws of England, p. 557.

24 KAFKA v. LEVENSOHN, 18 Misc. Rep. 202, 41 N. Y. Supp. 368, Dobie Cas. Bailments and Carriers, 87; Rothoser v. Cosel, 39 Misc. Rep. 337, 79 N. Y. Supp. 855; Halyard v. Dechelman, 29 Mo. 459. 77 Am. Dec. 585. See, also, 2 Kent, Comm. 590-591; Story, Bailm. § 421.

25 KAFKA v. LEVENSOHN, 18 Misc. Rep. 202, 41 N. Y. Supp. 368, Dobie Cas. Bailments and Carriers, 87.

Same-Not According to Mutual Intent of the Parties

The next case is where the work has been fully completed, but not according to the terms of the contract, as where there has been a deviation from such contract, or an improper execution thereof, or where the work has not been completed within the stipulated time.

If such deviation was with the assent of the bailor, or was occasioned by his fault, then the bailee can recover on a quantum meruit the reasonable value of the services which he performed.20 Even though this deviation is due to the fault of the bailee, he may still, as before, recover the reasonable worth of the services; but this is now reduced by the damages which his deviation has caused to the bailor.27 Of course, in such a case, if the damage equals the worth of the service, the bailee recovers nothing.28 When the work is well and properly done according to the contract, save that it is not completed within the stipulated time, it would seem that the bailee should here recover the contract price (rather than reasonable worth) for the services, diminished by the damage suffered by the bailor owing to the bailee's failure to complete the work in time.29

When the departure from the contract consists in the bailee's doing more than was called for by the agreement, instead of less, he cannot recover any extra compensation, in the absence of the bailor's acquiescence or consent. Thus, where, without such consent, the bailee does finer work or uses more valuable materials than the agreement calls for, he cannot recover more than the stip

26 See, in general, 1 Bell, Comm. (5th Ed.) pp. 455, 456; 1 Bell, Comm. (4th Ed.) §§ 391, 393; Bank of Columbia v. Patterson, 7 Cranch, 299, 3 L. Ed. 351; Robson v. Godfrey, 1 Starkie (Eng.) 275; Id., 1 Holt, 236; Pepper v. Burland, Peake (Eng.) 103.

27 Cases involving bailments here seem to be rare. See, in general, the following cases: Farnsworth v. Garrard, 1 Camp. (Eng.) 38; Duncan v. Blundell, 3 Starkie (Eng.) 6; Basten v. Butter, 7 East (Eng.) 479; Linningdale v. Livingston, 10 Johns. (N. Y.) 36; Jennings v. Camp, 13 Johns. (N. Y.) 94, 97, 7 Am. Dec. 367; Grant v. Button, 14 Johns. (N. Y.) 377; Jewell v. Schroeppel, 4 Cow. (N. Y.) 564; Chapel v. Hickes, 2 Cromp. & M. (Eng.) 214; Id., 4 Tyrw. (Eng.) 43; Cutler v. Close, 5 Car. & P. (Eng.) 337; Thornton v. Place, 1 Moody & R. (Eng.) 218; Taft v. Inhabitants of Montague, 14 Mass. 282, 7 Am. Dec. 215; Feeter v. Heath, 11 Wend. (N. Y.) 477.

28 See cases cited in preceding note; also, Hillyard v. Crabtree's Adm'r, 11 Tex. 264, 62 Am. Dec. 475; Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534; Jones v. Foreman, 93 Iowa, 198, 61 N. W. 846; Higman v. Camody, 112 Ala. 267, 20 South. 480, 57 Am. St. Rep. 33.

29 See Jewell v. Schroeppel, 4 Cow. (N. Y.) 564. See, also, Littler v. Holland, 3 Term. R. (Eng.) 590; Philips v. Rose, 8 Johns. (N. Y.) 392; Dubois v. Delaware & H. Canal Co., 4 Wend. (N. Y.) 285.