the bailee constitutes, of course, the distinguishing characteristic of the bailment in question, and from this can be deduced the specific rules of law applicable to this bailment, which differ from the broad principles which apply alike to all classes of bailments. In the modern classification of bailments, bailments for the bailee's sole benefit correspond exactly with the Roman commodatum. The English term "loan" or "lending," however, is not an exact translation of the Roman "commodatum." The word "loan" is broad enough to include both the commodatum and mutuum of the Roman law, while it has already been seen that a mutuum, or the loan of goods for consumption by the borrower, involving the return of similar goods, is thus either a sale or exchange, and not a bailment at all. A delivery of goods to another to be consumed in the use, without compensation therefor, would be a gift. The ordinary commercial loan of money, at interest, involves compensation on the part of the borrower and creates the relation of debtor and creditor, without in any way touching the principles of law which control the bailment relation. The term "loan," therefore, when used to designate a bailment of this class, must be understood to mean a gratuitous loan, which contemplates the return of the specific thing loaned.

ficial use, gratis, of a chattel which the borrower must return." A loan of property on condition that it shall be turned into a sale if certain payments are made does not subject the property in hands of the bailee to levy for the debts of the bailee. Clark v. Jack, 7 Watts (Pa.) 375. Where a slave is placed by his owner in the possession of a third person, "to take care of him, keep him until called for, and pay nothing for his hire during the time he might have him," this is a mere deposit, and does not amount to a contract of hiring. Farrow v. Bragg's Adm'r, 30 Ala. 261. For transactions held to be loans, and not gifts or sales, see Smith v. Jones, 8 Ark. 109; Boswell v. Clarksons, 1 J. J. Marsh. (Ky.) 47. And see Morris v. Caldwell, 3 J. J. Marsh. (Ky.) 693; Breeding v. Thrielkeld, 6 J. J. Marsh. (Ky.) 378; Hinson v. Hinson, 10 La. Ann. 580; Williams v. McGrade, 13 Minn. 174 (Gil. 165); Collier v. Poe, 16 N. C. 55; Hurd v. West, 7 Cow. (N. Y.) 752; Otis v. Wood, 3 Wend. (N. Y.) 498. See, also, Francis v. Shrader, 67 Ill. 272; Chamberlin v. Cobb, 32 Iowa, 161; Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587; BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Apczynski v. Butkiewicz, 140 Ill. App. 375; Archer v. Walker, 38 Ind. 472.

The delivering of a chattel by the owner to another to be used by the latter during life, and then returned, is not an attempt to create a remainder or a reversion in the property, but is a mere loan, the title remaining in the lender. Booth v. Terrell, 16 Ga. 20.

2 "Commodatum is a bailment where a chattel is lent by its owner to the bailee for the express purpose of conferring a benefit upon the latter, without any corresponding advantage to its owner." Halsbury, Laws of Eng. vol. 1, p. 537.

3 Ante, p. 11.

NATURE OF THE RELATION

33. In addition to the circumstances common to all bailments, it is essential to the creation of a bailment for the bailee's sole benefit

(a) That it be created by contract.

(b) That it be without intended compensation to the bailor. (c) That it be for the exclusive use of the bailee.

Must be Created by Contract

It follows from the very definition of this class of bailments that the relation cannot be created except by contract. Only by the owner's consent can one acquire the right to use gratuitously for his own benefit the goods of another. The use of goods is an important advantage resulting from ownership and unless the owner has by contract given another the right to use the goods, the law will not deprive the owner of such use gratuitously for the mere purpose of conferring it on another person. The contract creating such a bailment is governed by the rules of law that govern contracts in general. Where possession is obtained under a contract that is invalid (but not fraudulent), a quasi bailment in the nature of a depositum is created by operation of law. Must be without Intended Compensation to the Bailor

Absence of intended compensation to the bailor for the use of his chattel by the bailee is of the very essence of bailments of this class. The fact that the benefit flowing from the transaction accrues solely to the bailee is what distinguishes it from all other bailments and determines largely the measure of the bailee's duties. If any compensation, even though indirect or contingent, is to be paid to the bailor in any manner for the use of the bailed goods, such bailments would fall under another class-those for mutual benefit. Much that has been said as to what constitutes

See Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Jennings v. Rundall, 8 Term R. (Eng.) 335; Green v. Greenback, 4 E. C. L. 377; Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; Hagebush v. Ragland, 78 Ill. 40; State v. Bryant, 74 N. C. 124; Clark, Cr. Law, 250; Poth. Pret. à Usage, notes 13, 15; Story, Bailm. § 229.

5 Where valuable property is used for a considerable time, a hiring and not a loan will be presumed. Rider v. Union India Rubber Co., 28 N. Y. 379; Cullen v. Lord, 39 Iowa, 302. See, also, Davis v. Breon, 1 Ariz. 240, 25 Pac. 537; Dunham v. Kinnear, 1 Watts (Pa.) 130; Plimpton v. Gleason, 57 Vt.

a compensation (in regard to bailments for bailor's sole benefit)" is applicable here mutatis mutandis.

Though, in the case of a commodatum, there is imposed on the bailee the duty of bearing the ordinary expenses incidental to the preservation of the property during the time of the bailment,' this fact does not operate to change the gratuitous nature of the bailment. Thus, if a horse is gratuitously lent to a friend for a journey, he must bear the expenses of food and shelter for the horse during that journey, and even of getting the horse shod, if necessary; for these are burdens naturally incident to the use of a horse. However, where a horse or other chattel is lent in distinct consideration of its keep, the bailment is one for hire. The question, depending on the construction of the bailment contract, is whether such expense was the consideration for, or a mere incident of, the bailment. Where the use of the property was the principal thing contemplated by the parties in creating the bailment, and the keep merely incidental, the bailment is a gratuitous loan. Where the custody and care of the property was also an object aimed at by the bailor in creating the bailment, then, the bailment is one for hire.

Must be for Exclusive Use of Bailee

From what has just been said, it is clear that in gratuitous loans, not only must the use be the principal rather than the mere incidental object of the bailment, but this use must also be exclusively for the bailee's benefit. If the use is for the joint benefit of the borrower and the lender, the bailment is no longer a gratuitous loan, but the benefit then becomes mutual and the bailment then falls into another class—those for the benefit of both bailor and bailee.

8 BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56; and the bailment here was held to be still a gratuitous one.

9 Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587. "Where the owner of an article of property is anxious to avoid the expense and trouble of caring for it, at a season of the year when its use is not more than equivalent to the expense of keeping, and at his solicitation another agrees to keep it for its use, the lender is as much accommodated by the transaction as the borrower, and the benefit is mutual." Chamberlin v. Cobb, 32 Iowa, 161. In Neel v. State, 33 Tex. Cr. R. 408, 26 S. W. 726, it was held that an agreement whereby a person undertakes to make a horse gentle, and fit for the use of the owner's family, in consideration of permission to ride it, is a contract of hiring, and not a gratuitous loan. See, also, Height v. State (Tex. Cr. App.) 150 S. W. 908, where the bailee agreed to keep the piano in consideration of the right of bailee's child to use the piano, which was held to be a mutual benefit bailment, and not gratuitous.

RIGHTS AND DUTIES OF THE PARTIES

34. The rights and duties of the bailor and bailee, here as in the case of other bailments, may be varied by special contract; but when these rights and duties are not covered by the contract of the parties, they will be implied by law from the nature of the bailment.

The discussion that follows is a treatment of the rights and duties of the parties to a bailment for the bailee's sole benefit.10 The ensuing discussion is concerned with the rights and duties of the parties where there is no express contract; or when there is such a contract, the discussion may be regarded as furnishing general principles of construction which will control in the absence of any direct provision in the contract as to the specific point in question. Here, as elsewhere, the parties may by contract vary their liabilities indefinitely and arbitrarily, provided their contract is neither in violation of positive law nor against public policy. Of course, when a particular right or duty of the parties is clearly covered by a valid stipulation in the bailment contract, such stipulation must be given full effect.

11

EXPENSES OF THE BAILMENT

35. The bailee must bear the ordinary expenses incidental to preserving the property while in use, but for any extraordinary expense the bailor is liable

Ordinary and Extraordinary Expenses

The bailee must bear the usual and ordinary expenses incident to the use of the thing loaned or necessary to its due preservation.12 As the bailee alone derives benefit from the use of the goods, it follows that he should bear the expenses which such

10 "It is surprising how little in the way of decision in our courts is to be found in our books upon the obligations which a mere lender of a chattel for use contracts towards the borrower." Coleridge, J., in Blakemore v. Bristol & E. Ry. Co., 8 El. & Bl. (Eng.) 1035, 1050. And see Clapp v. Nelson, 12 Tex. 370, 62 Am. Dec. 530. For this scarcity of legal authority Mr. Schouler (Bailm. 65) suggests as a reason that, when honor does not hold the borrower to his duty, delicacy restrains the lender from pursuing legal remedies. 11 Ante, p. 18.

12 Harrington v. Snyder, 3 Barb. (N. Y.) 380; Handford v. Palmer, 2 Brod. & Bing. (Eng.) 359; 1 Domat, book 1, title 5, § 3, art. 4.

DOB.BAILM.—6

use necessarily entails. Thus where domestic animals, such as horses or cattle, are lent, the bailee must bear the expense of feeding and caring for these, and, as has been seen, the merely incidental benefit which the bailor receives in being relieved of such burden is not sufficient to change the gratuitous nature of the bailment.18

But where extraordinary and unusual expenses become necessary for the preservation of the goods, these must be borne by the bailor. Thus, where a horse unexpectedly became dangerously sick, the bailor should bear the expenses of a veterinarian, called in by the bailee to attend the horse. If the bailee has advanced such expenses, the bailor must reimburse him; and it seems that the bailee may, under an implied agency, bind the bailor by contract in the latter's name when, under the peculiar circumstances of the particular case, such expenses are reasonable and necessary for the proper preservation of the bailed object.16

FRAUD IN PROCURING THE LOAN

36. Fraud in procuring the loan renders the borrower liable as an insurer.

Any fraud practised by the borrower to procure the loan vitiates the contract; for in such case the owner, owing to the fraud, has not legally consented to the taking and use of his property. The pretended borrower is no better than a trespasser. He is therefore absolutely liable for the goods entirely irrespective of the question of negligence. As far as the safety of the goods is concerned, he is an insurer.16 The fraud may be either an express misrepresentation or a fraudulent concealment of a fact under circumstances such as to impose on the bailee the duty of disclosing the fact to the bailor; " though in the first case the liability is much clearer.

17

13 BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56.

14 Harter v. Blanchard, 64 Barb. (N. Y.) 617; Story, Bailm. §§ 273, 274; Jones, Bailm. p. 65. Pothier and Domat seem to place such expenses on the lender. This is not free from doubt, though. See, for example, 1 Halsbury, Laws of England, p. 539, note (1), in which it is said: "But it is thought that this is not the law of England."

15 If, as seems to be the case, these extraordinary expenses fall on the bailor, this would follow as in the cases of bailments for the bailor's sole benefit.

16 Though not directly in point, see Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; Cary v. Hotailing, 1 Hill (N. Y.) 311, 37 Am. Dec. 323. 17 Judge Story (Bailm. § 243) gives as an illustration of the doctrine of