After a brief discussion of locatio, or hiring, in general, this chapter will be devoted to the first great class of locatio bailments, viz., locatio rei, the hired use of things; while chapter 6 is concerned with locatio operis, or hired services about a thing, excluding the extraordinary bailments, which will be subsequently treated. LOCATIO OR HIRING-IN GENERAL 44. Locatio, or hiring, is a bailment in which compensation is to be given either by the bailee to the bailor for the use of a thing (locatio rei) or by the bailor to the bailee for labor and services about a thing (locatio operis). Bailments of hiring were called in the Roman law "locatio," or "locatio-conductio," both expressions being used to signify the same relation. It is a bailment whereby either the use of a thing or the services and labor of a person about a thing are given for a reward. At the common law it may be defined as a bailment of a personal chattel, where a compensation is to be given for the use of the thing, or for labor or services about it." It is clear that these definitions or descriptions of locatio practically amount simply to throwing together the two definitions of locatio rei and locatio operis. The terms used in the Roman and French law to designate the parties to locatio bailments are confusing rather than illumi Ayliffe, Pand. bk. 4, tit. 7, p. 460; Wood, Inst. bk. 3, pp. 235, 236, c. 5; 1 Domat, bk. 1, tit. 4, § 1, art. 1. 5 Pothier (Contrat de Louage, note 1) defines it to be a contract by which one of the contracting parties engages to allow the other to enjoy or use the thing hired, during the stipulated period, for a compensation, which the other party engages to pay. A definition substantially the same will be found in other writers. Lord Holt in COGGS v. BERNARD, 2 Ld. Raym. 909, 913, Dobie Cas. Bailments and Carriers, 1, has defined it to be "when goods are left with the bailee to be used by him for hire." The objection to this, as well as to the definition of Pothier, is that it is incomplete, and covers only cases of the hire of a thing (locatio rei), and excludes all cases of the hire of labor and services, and of the carriage of goods. Mr. Bell defines it, with great exactness, thus: "Location is, in general, defined to be a contract, by which the temporary use of a subject, or the work or service of a person, is given for an ascertained hire." 1 Bell, Comm. (4th Ed.) §§ 198, 385; Id. (5th Ed.) pp. 255, 451. See, also, 2 Kent, Comm. lect. 40 (4th Ed.) p. 585; 1 Bell, Comm. (5th Ed.) pp. 255, 451; 1 Bell, Comm. (4th Ed.) §§ 198, 385. See, also, Monthly Law Mag. (London) for April, 1839, pp. 217-219; Story, Bailm. § 368; 1 Domat, bk. 3, tit. 4, § 1, art. 1. See, also, Code Civil of France, arts. 1709, 1710; Sohm Inst. (Ledlie's Transl., 2d Ed.) 419; 2 Street, Foundations of Legal Liability, p. 284. nating, and as they are on that account seldom used by English or American writers, they can be omitted here. Some explanation of the terms "letter" and "hirer" in this connection, however, is essential. The hirer is the one who receives the immediate benefit from the bailment itself, and accordingly pays a compensation therefor; while the letter, in the eyes of the law, suffers a loss. or detriment from the actual fulfillment of the bailment purpose, he therefore receives the compensation as his reward for such detriment. In a locatio rei bailment, the bailee is the hirer; the bailor, the letter. Thus, where one procures a horse from a livery stable to ride, he (bailee) clearly receives the immediate benefit from the bailment (i. e., the delivery of the horse), for which he pays the livery stable keeper (bailor). On the contrary, in a locatio operis bailment, the bailee is the letter; the bailor, the hirer. For example, one who boards his horse at a stable (bailor) receives the benefit from the bailment (here the caring for the horse), and therefore pays the compensation to the stable keeper (bailee). It will thus be seen that the terms "hirer" and "letter" do not invariably refer to either the bailor and the bailee. In locatio rei, the bailee hires the use of the thing; in locatio operis, the bailor hires services about the thing. SAME NATURE OF THE RELATION 45. Locatio bailments, or bailments of hiring, may be created: (a) By contract. (b) By operation of law. Locatio bailments are divided into two classes. (a) Locatio rei, or the hiring of the use of a thing. • We are accustomed, in the common law, to use words corresponding to those of the Roman law, almost in the same promiscuous manner. Thus, letting ("locatio") and hiring ("conductio") are precise equivalents, used for the purpose of distinguishing the relative situation of different parties to the same contract. The letter, called in the civil law "locator," and in the French law "locateur," "loueur," or "bailleur," is he who, being the owner of the thing, lets it out to another for hire or compensation; and the hirer, called in the civil law "conductor," and in the French law "conducteur," "preneur," "locataire," is he who pays the compensation, having the benefit of the use of the thing. See, also, Story, Bailm. § 369; Wood, Inst. bk. 3, p. 236, c. 5; Poth. Contrat de Louage, note 1; 1 Domat, bk. 1, tit. 4, § 1, art. 2; Heinecc. Pand. lib. 19, tit. 2, § 318; Jones, Bailm. 90; Wood, Inst. Civ. Law, 236. The locatio, or bailment of hiring, is, of course, governed by the principles common to all bailments. A mutual benefit bailment is distinguished from the gratuitous bailments by the fact that the bailment is undertaken or created for a recompense or consideration. What constitutes such a consideration has already been sufficiently discussed Establishment of the Relation by Contract It follows naturally from the requirement of a contemplated consideration, to be paid by one party and received by the other, that the very great majority of bailments for hire are founded on special contracts, and these are the usual bailments of commerce. In such cases, as elsewhere, the general rules of contract apply. 7 Ante, §§ 23, 33. Apart from the fact that they are undertaken for a consideration, bailments for hire differ very little from gratuitous bailments either in their manner of creation, or in their purposes. Thus, in the case of a simple deposit, if a price is to be paid for the keeping, the character of the bailment is changed. It is no longer a depositum, but becomes a locatio custodiæ, or a hiring of custody. So, also, if a loan for use is gratuitous, it is a commodatum, but, if it be for a price, it is a locatio rei, or the hiring of a thing; and what would be a mandate, if it were not for the consideration, is a hiring of work and labor, or the hiring of carriage. In every bailment of letting for hire, a contemplated price or compensation for the hire is essential, though the amount may not be stipulated. Herryford v. Davis, Use of Jackson & S. Co., 102 U. S. 235, 26 L. Ed. 160. In the absence of an agreement to the contrary, the law implies an agreement to pay a reasonable sum for the use of a thing. Cullen v. Lord, 39 Iowa, 302; Gray v. Missouri River Packet Co., 64 Mo. 47; Schouler, Bailm. (2d Ed.) § 98. Where a bailee takes a horse to care for, and is to have the use of the horse in consideration of his keep, the bailment is one for hire. Chamberlin v. Cobb, 32 Iowa, 161. See, also, Francis v. Shrader, 67 Ill. 272; White v. Humphery, 11 Q. B. Div. 43; Gaff v. O'Neil, 2 Cin. R. (Ohio) 246. Where one entering a clothing house for the purchase of a suit deposits his watch, at the direction of the salesman, in a drawer, preparatory to trying on some clothes, the jury are warranted in finding that such deposit is a necessary incident of the business, in which case the clothier becomes a bailee for hire, bound to exercise ordinary diligence. WOODRUFF v. PAINTER, 150 Pa. 91, 24 Atl. 621, 16 L. R. A. 451, 30 Am. St. Rep. 786, Dobie Cas. Bailments and Carriers, 40. A merchant who sells ready-made cloaks at retail, and provides mirrors for the use of customers while trying them on, and clerks to aid in the process, thereby impliedly invites his customers to take off their wraps and lay them down in the store, and is bound to exercise some care over such wraps. Where such merchant provides no place for keeping such wraps, and does not notify customers to look out for their wraps themselves, nor give any direction to his clerks on the subject, he is liable for the loss of a wrap laid on the counter by a customer while trying on a cloak, since his acts show that he exercised no care whatever. Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St. Rep. 519. Story, Bailm. § 375; Schouler, Bailm. (2d Ed.) § 90. 8 Not only fraud or duress, but even mistake in regard to the subject-matter There is, however, one instance of illegal contract, of such frequent occurrence, that it calls for brief consideration. This is the hiring of horses for use on Sunday, contrary to statute. The rule is that neither party can set up the illegal contract, either as the basis of an action or as a defense. But if a party can make out a case without relying on such contract, then he can recover. Thus, where the bailor sues to recover the stipulated price for the use of the horse, he cannot recover; for, to make out his case, he must set up the illegal contract of hiring. But if the bailor sues for a conversion when the bailee's use of the horse is outside of the contract, he can recover. Here the bailor sues for the bailee's wrongful dealing with an article not his own in a way inconsistent with the ownership of the bailor. The bailor's right of action is not based on the contract, and, since the illegal contract furnishes no excuse or defense, the bailor could recover; and the same is true, it is believed, when the bailor sues the bailee for mere negligence. of the bailment, its purpose, or the recompense, may avoid the contract. Thus, if I agree to hire a certain horse, and the bailor understands, me to mean a different horse, there is no contract, for there is no mutual assent. The contract must not involve the execution of an unlawful purpose, or be against good morals and public policy. Thus, a contract for a bailment of furniture to be used for purposes of prostitution is void. So, also, are contracts to supply tools to commit burglary with, or goods to aid a public enemy, or for the purpose of smuggling. See Clark, Contr. 289, 346; Story, Bailm. §§ 372, 378, 379; Schouler, Bailm. (2d Ed.) §§ 91, 92. 9 As to conversion, see Schouler, Bailm. (2d Ed.) § 140; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576. "The illegal letting may or may not appear. If it does, it simply explains the defendant's possession, and proves that it was by the owner's permission, at least for a certain purpose. It may give the defendant an opportunity to injure the horse, but it does not cause the injury; nor does it contribute to it, in such a sense as to make the plaintiff a party to the wrongful act. If it does not appear, before the defendant can avail himself of it as a defense, it becomes necessary for him to prove the illegal contract to which he was a party, and his own illegal conduct in traveling upon the Sabbath. But he can no more avail himself of that as a defense than the plaintiff can as a cause of action. Either party whose success depends upon proving his own violation of law must fail." Frost v. Plumb, 40 Conn. 111, 113, 16 Am. Rep. 18. See, also, DOOLITTLE v. SHAW, 92 Iowa, 348, 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 542, Dobie Cas. Bailments and Carriers, 67; Woodman v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310. For other cases, see 45 Cent. Dig. "Sunday," § 52. It seems that, when the bailor sues the bailee for negligence (even when there has been no conversion), the fact of the bailment being a Sunday one should be no defense, as the negligence and not the Sunday bailment is the proximate cause of the injury. Frost v. Plumb, 40 Conn. 111, 113, 16 Am. We have already seen, in the case of gratuitous bailments, that, before the bailment is actually entered upon by the bailee, no rights accrue. for breaches of the bailment contract, since it is without consideration.1o In the case of locatio (and all other mutual benefit bailments), since the contract is supported by a consideration, mutual rights are acquired as soon as the contract is made. For nonfeasance, or a mere breach of this contract, then, either party is liable.11 Establishment of the Relation by Operation of Law Though the very great majority of bailments for hire rest upon express contract between the parties, there are a few classes of quasi bailments for hire which may arise independently of the bailor's consent.12 Such are cases of possession of property by Rep. 18; Newbury v. Luke, 68 N. J. Law, 189, 52 Atl. 625; Hinkel & Edelen v. Pruitt, 151 Ky. 34, 151 S. W. 43. But there are cases to the contrary. Way v. Foster, 1 Allen (Mass.) 408; Hall v. Corcoran, 107 Mass. 258, 9 Am. Rep. 30. 10 Ante, §§ 26, 38. 11 Story, Bailm. §§ 384, 436; 2 Kent, Comm. 570; Schouler, Bailm. (2d Ed.) § 100. See THORNE v. DEAS, 4 Johns. (N. Y.) 84, Dobie Cas. Bailments and Carriers, 47; Elsee v. Gatward, 5 Term R. 143; Balfe v. West, 13 C. B. 466. "In cases of nondelivery of the thing by the letter, whether it arises from his mere refusal, or from his subsequent sale or transfer thereof to another person, or from his having stipulated for the delivery of a thing of which he is not the owner, and over which he has not any control, a right of action accrues to the hirer. But by the French law, if the nondelivery is prevented by inevitable casualty or superior force, as if it perishes, no such action lies; for in that law the rule is, 'Impossibilium nulla obligatio est.' But in all these cases the hirer may, if he chooses, treat the contract as rescinded; and, if he has paid any consideration therefor, he may recover it back. On the other hand, if the letter offers to deliver the thing in an injured or broken or altered state from what it was at the time of the hiring, the hirer is not bound to receive it, but he is entitled to insist upon rescinding the contract. And in such a case it will make no difference whether the injury or deterioration was by inevitable accident, or by any other cause." Story, Bailm. § 384. Such a contract, having the elements of contractual validity, can be sued on by one party to the contract, upon a breach of the contract by the other party. The legal incidents of such a suit are governed by the general rules of law applicable to contracts. 12 "Nor should it be thought that bailments for mutual benefit necessitate a contract and mutual terms. There may exist what we call a 'quasi bailment,' namely, one whose conditions are satisfied with the voluntary acceptance of possession by one who expects a reward for his service." Schouler, Bailm. (2d Ed.) § 94. The acceptance may be either actual or constructive, but unless there is something to show bailment, knowledge, and intent, no bailment can be inferred. Schouler, Bailm. (2d Ed.) § 100; Spangler v. Eicholtz, 25 Ill. 297; Cox v. Reynolds, 7 Ind. 257; Rodgers v. Stophel, 32 Pa. 111, 72 Am. Dec. 775; Feltman v. Gulf Brewery, 42 How. Prac. (N. Y.) 488. |