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fusal by the bailee to surrender the goods after such payment or tender is equivalent to conversion. Of course, by agreement of both the bailor and bailee, the lien may be terminated, though the bailment is allowed to continue.88

Enforcement of the Lien

At common law a lien is the mere right to retain the possession of goods until the satisfaction of a demand. On default in payment by the bailor, the title to the goods did not vest in the bailee and become absolute at. law, as in the case of the mortgage; nor did the bailee have (as has the pledgee) a power of sale as to the goods held under his lien. The bailee's right to sue the bailor personally for the agreed compensation was not affected by the lien, but only by holding could the lien be made effective.

The power of sale could be given by special contract. The bailee. has now this power by statute in practically all of the states.00

(C. C.) 17 Fed. 776; Tompkins v. Batie, 11 Neb. 147, 7 N. W. 747, 38 Am. Rep. 361.

88 Bailey v. Adams, 14 Wend. (N. Y.) 201.

891 Jones, Liens, § 1033; Jones v. Pearle, 1 Strange (Eng.) 557; Lickbarrow v. Mason, 6 East (Eng.) 21, note; Thames Iron Works Co. v. Patent Derrick Co., 1 Johns. & H. (Eng.) 93; Busfield v. Wheeler, 14 Allen (Mass.) 139; Rodgers v. Grothe, 58 Pa. 414; Briggs v. Boston & L. R. Co., 6 Allen (Mass.) 246, 83 Am. Dec. 626. In Doane v. Russell, 3 Gray (Mass.) 382, Chief Justice Shaw says: "If it be said that a right to retain the goods, without the right to sell, is of little or no value, it may be answered that it is certainly not so adequate a security as a pledge with a power of sale; still, it is to be considered that both parties have rights which are to be regarded by the law, and the rule must be adapted to general convenience. In the greater number of cases, the lien for work is small in comparison with the value, to the owner, of the article subject to lien; and in most cases it would be for the interest of the owner to satisfy the lien and redeem the goods, as in the case of the tailor, the coachmaker, the innkeeper, the carrier, and others; whereas, many times, it would cause great loss to the general owner to sell the suit of clothes or other articles of personal property. But, further, it is to be considered that the security of this lien, such as it is, is superadded to the holder's right to recover for his services by action."

90 "In most of the states there are statutes giving to mechanics, artisans, and others who bestow labor on personal property a lien therefor. The purpose of these statutes is, in general, to extend the common-law lien in respect of the persons who can acquire such lien, and to give an effectual remedy for its enforcement, either by sale after notice, or by attachment and sale under execution. In a few states the lien is extended so that it may be availed of within a limited time after the property has been delivered to the owner. But, generally, these statutes, in most respects, are merely declaratory of the common law, and must be interpreted in accordance with its principles. Especially is this so as regards the necessity of retaining possession of the property in order to retain a lien upon it." Jones, Liens, 749; McDearmid v. Foster, 14 Or. 417, 12 Pac. 813; McDougall v. Crapon, 95 N. C. 292. "The lien under the statute is of the same nature it

Such statutes, being in derogation of the common law, must be strictly construed and followed, particularly when the statute conferring the right of sale prescribes the manner and method of its exercise. Of course, a sale of the goods, without warrant either in the bailment contract or statute, constitutes a conversion."1

THE DEGREE OF CARE TO BE EXERCISED BY
THE BAILEE

65. The degree of diligence required of the bailee in fulfilling the purpose of the bailment is placed at ordinary care.

In the ordinary locatio operis bailments, as in other bailments for the mutual benefit of the bailor and bailee, the degree of diligence exacted of the bailee is ordinary care. The failure on his part to exercise this degree of care 2 is, of course, negligence,

formerly was, and the same circumstances must combine to create it. There must be a possession of the thing; otherwise, there cannot, without a special agreement to that effect, be any lien. The term 'lien,' as used in the statute, means the same it ever did the right to hold the thing until the payment of the reasonable charges for making, altering, repairing, or bestowing labor upon it. Possession of the article is a requisite essential." McDearmid v.

Foster, 14 Or. 417, 12 Pac. 813, per Thayer, J.

91 Jones v. Pearle, 1 Strange (Eng.) 556; Mulliner v. Florence, 3 Q. B. Div. (Eng.) 484; Doane v. Russell, 3 Gray (Mass.) 382; Case v. Fogg, 46 Mo. 44; Jones v. Thurloe, 8 Mod. (Eng.) 172; Jesurun v. Kent, 45 Minn. 222, 47 N. W. 784. But in an action for such conversion the bailee may set off the amount of his lien. Briggs v. Boston & L. R. Co., 6 Allen (Mass.) 246, 83 Am. Dec. 626; Rodgers v. Grothe, 58 Pa. 414, 416.

92 Where plaintiff delivered to cotton ginners certain cotton in controversy to be ginned and stored for hire, the ginners were bailees for hire, chargeable with the exercise of ordinary care. Hackney v. Perry, 152 Ala. 626, 44 South. 1029. Storage of cotton delivered to a compress company being an incident to its compression, the company was bound to use ordinary care in such storage. Loeb Compress Co. v. I. G. Bromberg & Co. (Tex. Civ. App.) 140 S. W. 475. See STUDEBAKER BROS. MFG. CO. v. CARTER, 51 Tex. Civ. App. 331, 111 S. W. 1086, Dobie Cas. Bailments and Carriers, 98; MICHIGAN STOVE CO. v. PUEBLO HARDWARE CO., 51 Colo. 160, 116 Pac. 340, Dobie Cas. Bailments and Carriers, 97; CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54. An agreement to carry or deliver property for a reward, made by one who is not a common carrier, creates the duty to exercise reasonable care, but does not impose a liability on him for losses not occasioned by the ordinary negligence of himself or servants. American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479. When one delivers logs at a custom sawmill, to be sawed at agreed price, the owner of the mill becomes bound to exercise ordinary care in keeping and manufacturing the logs, and, in case of their loss, to prove that it was without his fault. Gleason v. Beers

which renders the bailee liable to the bailor for all damages proximately flowing therefrom.

What has been said in other connections as to ordinary care applies here with added force. In locatio operis the bailment is created by the bailor for the express purpose of securing more or less active services about the chattel and (which is true of no other class of bailments) the bailee receives a compensation for such services. The question, therefore, of the bailee's skill and care assumes here a greater practical importance than in any other class of bailments.

Here, as in other mutual benefit bailments, the criterion of ordinary care is that degree of care exercised by the man of ordinary prudence under similar circumstances." Here, too, the term is

Estate, 59 Vt. 581, 10 Atl. 86, 59 Am. Rep. 757. Cotton ginner is held only to ordinary diligence and care in custody of cotton delivered to him to be ginned. Kelton v. Taylor, 11 Lea (Tenn.) 264, 47 Am. Rep. 284. As to liability of banks as collecting agents, see German Nat. Bank v. Burns, 12 Colo. 539, 21 Pac. 714, 13 Am. St. Rep. 247, and note; National Butchers' & Drovers' Bank v. Hubbell, 117 N. Y. 384, 22 N. E. 1031, 7 L. R. A. 852, 15 Am. St. Rep. 515; Allen v. Merchants' Bank of City of New York, 22 Wend. (N. Y.) 215, 34 Am. Dec. 289, 307, and extended note. The relation between an owner intrusting goods to the custody of another to have work done on the goods is that of bailor and bailee for mutual benefit, and the bailee need only exercise ordinary care for the protection of the goods. Goldstein v. Blumberg (Sup.) 130 N. Y. Supp. 163. See, also, Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. 711, 67 C. C. A. 265; Union Compress Co. v. Nunnally, 67 Ark. 284, 54 S. W. 872; Standard Brewery v. Bemis & Curtis Malting Co., 171 Ill. 602, 49 N. E. 507; Ashford v. Pittman, 160 N. C. 45, 75 S. E. 943.

93 Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823; Saunders v. Hartsook, 85 Ill. App. 55; American Dist. Tel. Co. of Baltimore v. Walker, 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479; Dale v. See, 51 N. J. Law, 378, 18 Atl. 306, 5 L. R. A. 583, 14 Am. St. Rep. 688. One in whose hands property is placed to safely care for, for a consideration, is not liable for its seizure and sale under attachment, he having had nothing to do therewith, except to surrender it to the sheriff on his demanding it by virtue of the attachment in his hands. Fite v. Briedenback, 127 Ky. 504, 105 S. W. 1182, 32 Ky. Law Rep. 400. Where cotton was injured by the negligence of a compress company while still in its actual possession, the fact that there had been a constructive delivery to a railroad company by delivery of the compress receipts did not relieve the compress company from liability for its negligence. Gulf Compress Co. v. Jones Cotton Co., 172 Ala. 645, 55 South. 206. Plaintiff showing bailment of a trunk for hire and nondelivery on demand, defendant has the burden of showing loss under conditions consistent with due care. Nathan v. Woolverton, 149 App. Div. 791, 134 N. Y. Supp. 469. A bale of cotton, after being ginned and tagged, was rolled out on the platform, the attached tag containing the bale number, and a duplicate, containing the number, weight, and name of the owner, was given the person who brought it, and when the owner called for it next morning it could not be found. There were notices around the gin stating the company would not be liable for cotton after

94

one of intense relativity. Here, too, is frequently invoked the doctrine of estoppel against the bailor, having knowledge of the bailee's character, or the conditions under which the bailment is to be carried out. Of special importance, too, is the doctrine that one holding himself out as possessing unusual skill is to be judged accordingly. Such holding out may be by express terms in an individual instance, or it may be by simply undertaking to perform work necessarily involving skill, or holding one's self out as belonging to a class of bailees implying special skill, such as watch

96

97

ginned and baled, of which the owner knew, as well as that it was the gencral custom to dispose of baled cotton as defendant had done. Held, in a suit by the owner for the missing bale, that it was error to peremptorily instruct for plaintiff. Batesville Gin Co. v. Whitten (Miss.) 48 South. 616. 94 See cases cited in notes 92, 93. Showing that a watchman employed by a bailee was addicted to drink, without showing causal connection with a fire which caused loss of goods, will not entitle the bailor to recover for the goods. Gibbons v. Yazoo & M. V. R. Co., 130 La. 671, 58 South. 505. In an action to recover the value of theatrical costumes delivered to the defendant to be cleaned, and not returned by him, an affidavit of defense is sufficient which avers that the defendant employed a competent man to do the work, that the process employed was the best known to the trade, that special care was used, that notwithstanding that every care and precaution was taken in the handling and cleaning of the costumes, the materials used in cleaning were in some unaccountable way ignited, and a fire resulted, destroying some of the costumes and damaging others, and that an offer was made to the plaintiff to repair the damaged goods and put them in as good condition as before, but that plaintiff refused such offer. Gingerbread Man Co. v. Schumacher, 35 Pa. Super. Ct. 652. See, also, Union Compress Co. v. Nunnally, 67 Ark. 284, 54 S. W. 872; Standard Brewery v. Hales & Curtis Malting Co., 70 Ill. App. 363; Vroman v. Kryn (Sup.) 86 N. Y. Supp. 94; Russell v. Koehler, 66 Ill. 459; Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259.

95 See ante, p. 69; Jones, Bailm. 63, 98-100; Story, Bailm. § 435; 1 Bell, Comm. (5th Ed.) p. 459; Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234; Stearns v. Farrand, 29 Misc. Rep. 292, 60 N. Y. Supp. 501. A bailment contract ordinarily imports that the bailee may use the usual means of executing the bailment. Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823. See note 97. 96 Lincoln v. Gay, 164 Mass. 537, 42 N. E. 95, 49 Am. St. Rep. 480; Stanton v. Bell, 9 N. C. 145, 11 Am. Dec. 744; Kuehn v. Wilson, 13 Wis. 104; Hillyard v. Crabtree's Adm'r, 11 Tex. 264, 62 Am. Dec. 475; Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259; Baird v. Daly, 57 N. Y. 236, 15 Am. Rep. 488; Moneypenny v. Hartland, 1 Car. & P. (Eng.) 352; Id., 2 Car. & P. (Eng.) 378; Duncan v. Blundell, 3 Starkie (Eng.) 6; Gamber v. Wolaver, 1 Watts & S. (Pa.) 60; Farnsworth v. Garrard, 1 Camp. (Eng.) 28; Moore v. Mourgue, Cowp. (Eng.) 479. See, also, Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534; McKibben v. Bakers, 1 B. Mon. (Ky.) 120; Zell v. Dunkle, 156 Pa. 353, 27 Atl. 38; Horner v. Cornelius, 5 C. B. (Eng.) at page 246, Willes, J.; 1 Halsbury, Laws of England, p. 559.

97 See cases in last note. Lincoln v. Gay, for example, involved a dressmaker. But even when the particular business or employment requires skill,

makers, tailors, and cabinet makers. The doctrine is "spondet peritiam artis"-he promises the skill of his art. Thus one undertaking to clean a delicate and expensive lace garment is not to be judged by the same practical standard as one cleaning an ordinary pair of shoes; nor one retouching the colors of an ivory miniature by the skill of one who paints doors and window blinds. Practical common sense is always to be used in solving the problem of what, under an infinite variety of controlling circumstances, does or does not constitute ordinary care.""

The parties can, of course, stipulate for a higher or lower degree of care, or the bailee may by his active wrong become an insurer." In the absence of such contract or wrong, the bailee is liable for loss or damage only when it is due to his failure to exercise ordinary care. Thus for loss or damage by act of God, or other inevitable

if the bailee is known not to possess it, or he does not exercise the particular art or employment to which it belongs, and he makes no pretension to skill in it, there, if the bailor, with full notice, trusts him with the undertaking, the bailee is bound only for a reasonable exercise of the skill which he possesses, or of the judgment which he can employ; and, if any loss ensues from his want of due skill, he is not chargeable. Thus, if a person will knowingly employ a common mat maker to weave or embroider a fine carpet, he must impute the bad workmanship to his own folly.

98 See, further, Keith v. Bliss, 10 Ill. App. 424; Gamber v. Wolaver, 1 Watts & S. (Pa.) 60; Lienan v. Dinsmore, 3 Daly (N. Y.) 365; Clark v. Evershaw, Gow (Eng.) 30; Lanphier v. Phipes, 8 Car. & P. (Eng.) 475. Usage may be shown to qualify liability of bailee. Kelton v. Taylor, 11 Lea (Tenn.) 264, 47 Am. Rep. 284. In Brown v. Hitchcock, 28 Vt. 452, 457, it was shown that the defendant received from the plaintiff a quantity of palm leaf, agreeing to manufacture the same into hats, or to return it to plaintiff on demand. While in the hands of the defendant, the leaf was injured by heat and mildew. Isham, J., said: "We perceive no objection to the admission of the testimony in relation to the usage and custom in packing leaf for market, as also the necessity and custom of taking the leaf from the sacks and exposing it to air to prevent its becoming injured and worthless. Its object was simply to ascertain the character and degree of care which the defendant should have exercised, and that which he did exert over the property while it was in his possession."

99 Russell v. Koehler, 66 Ill. 459. As in other classes of bailments. See ante, pp. 18-19, 83, 110; Story, Bailm. § 431; Schouler, Bailm. (2d Ed.) § 105. As to when such contracts extend the common-law duty of ordinary care, see Shaw v. Davis, 7 Mich. 318; Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 11 Sup. Ct. 490, 35 L. Ed. 97; Phillips v. Hughes (Tex. Civ. App.) 33 S. W. 157.

1 Story, Bailm. § 437; Norway Plains Co. v. Boston & M. R. R., 1 Gray (Mass.) 263, 61 Am. Dec. 423; Francis v. Dubuque & S. C. R. Co., 25 Iowa, 60, 95 Am. Dec. 769; McCullom v. Porter, 17 La. Ann. 89; Waller v. Parker, 5 Cold. (Tenn.) 476; Cowles v. Pointer, 26 Miss. 253; Johnson v. Smith, 54 Minn. 319, 56 N. W. 37; SAFE-DEPOSIT CO. OF PITTSBURGH v. POLLOCK, 85 Pa. 391, 27 Am. Rep. 660, Dobie Cas. Bailments and Carriers, 101;

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