the fault of either party, the bailor is entitled to the reasonable value of the actual use of the property. 209. Rights and duties of bailee.-The bailee in caring for his bailor's property is bound to use the care which the average prudent man would exercise in protecting his own property. In a bailment for hire he may use the chattel for the purpose for which it was hired, but he will be liable for any loss or damage that may befall the property while it is being used for other purposes than those of the bailment. Liability for injury to third persons through the use of the subject of the bailment will fall on the bailee unless the injury is the result of some defect or dangerous quality of which the bailor should have apprised the bailee. In a bailment for services the bailee must use whatever skill is reasonably necessary to accomplish the purposes of the bailment. Thus, one who takes an automobile of another to repair the gasoline engine must exercise the skill ordinarily possessed by competent repairers of automobiles. For these services the bailee is entitled to the compensation fixed by the contract or, in the absence of a contract, to reasonable compensation. If this compensation is not paid the bailee may hold the property. If, however, the bailee parts with the property his lien is lost unless, as in the case of automobiles in New York State, a statute provides that the lien shall revive when the bailee regains possession. A bailee has a special temporary title to the subjectmatter of the bailment which he may protect in the courts from unjustified interference by third persons. If the property is injured or destroyed by third persons, the bailor and bailee each has a right of action for the damages sustained by him. EXAMPLES 245. A sends his furniture to B to be stored for a period of one year. At the end of the year A finds that his furniture has been damaged by rain which has leaked through the roof of B's storehouse. He sues B, who defends on the ground that the leak was caused by the action of the wind in enlarging a rent in the felt covering of his roof caused in the first instance by stones thrown on the roof by boys. His answer further sets forth that he did not visit his storehouse for a long period and had no notice of the rent which otherwise would have been repaired. This defense is probably insufficient. An ordinarily prudent man would cause his premises to be inspected at reasonable periods. 246. B hires a horse to drive to a county fair, but instead drives to market, where the horse is accidentally killed. B is liable to his bailor for the value of the horse. 247. At a trial between A and B, A shows that he took his carriage to be repaired by B and that when he called for it B refused and failed to deliver it. B then showed that his factory, in which the carriage was stored, had been totally destroyed by fire. In order to recover A would then have to bear the burden of proving that the fire was caused by the negligence of B or one of his servants. 248. A sends his horse to B to be kept at B's stable. B does not lock his stable door at night and the horse is stolen. He attempts to defend an action by showing that his own horses were kept in the same stable. This defense is insufficient. A bailee must use the care which an ordinarily prudent man would exercise in the care of his property; the care bestowed by the bailee on his own property cannot be taken as a standard. 210. Termination of bailment arising out of the hiring, caring for, repairing or transporting of chattels.— The duration of a bailment may be determined by the original contract by subsequent mutual agreement. Where there is no express understanding the bailment may be terminated in any one of the following ways: by rescission of the contract on grounds sufficient to justify the rescission of any ordinary contract; by the total or partial destruction of the subject-matter or by an injury which renders it unfit for the purpose for which it was hired; by an act or series of acts on the part of the bailee which tends to defeat the bailor's title to his property. A bailment of hiring in which the duration is not specified may be terminated by either party by giving reasonable notice. Upon the termination of the bailment the bailee is bound to re-deliver possession of the subject-matter. 211. Warehousemen and wharfingers.-Warehousemen are bailees who keep goods in storage for hire. In some states warehousemen who accept grain in elevators from all persons are considered public warehousemen with certain public duties. In general, however, warehousemen are private bailees. Warehouse receipts are usually given to the bailors. These receipts, which may be issued by warehousemen only, describe the property, name the owner and set forth the charges for storage and the rest of the contract of bailment. While warehouse receipts are not negotiable instruments in the sense that they are subject to all the rules of law applicable to those special forms of contracts, they are transferable by indorsement and delivery and carry with them the title to the goods they represent. Besides being receipts, they are, as above indicated, contracts and often contain provisions restricting the liabilities of the warehouseman. Ordinarily the grain of different owners is mixed in one bin, each bailor becoming an owner in common of his share of the whole. The elevator owner is liable for conversion unless the grain in his bins is sufficient to meet the demands of all the bailors. A warehouseman is bound to use all the modern appliances to protect his customer's property from fire, theft, rats, water, heat and other destructive agencies. The proprietor of a refrigerator storage warehouse is under obligation to maintain the required temperature and to give his bailor notice when this duty can no longer be performed. Wharfingers are those who keep wharves for the purpose of receiving goods for compensation. Bonded warehouses are provided for by United States statute. They are designated by the government for the storage of the goods of importers and of others who are required to pay duties or excise taxes. The goods placed in them are not removed till the taxes are paid. A warehouseman has a specific lien on the goods till the storage charges are paid. 212. Safe-deposit companies.-Companies who keep strong boxes in protected vaults for the use of patrons are not, strictly speaking, bailees. Usually the patron is given one key and another is kept by the company, both being necessary to open the box. These companies undertake to use a high degree of diligence and care and are liable for loss if an unauthorized person is permitted to open the box. To protect themselves each customer is usually given a separate password which must be given before he is admitted to the vaults. 213. Liverymen and agisters.-At common law agisters and liverymen, unlike other bailees who accept the custody of goods for compensation, were not given a lien, but this rule has been changed by statute and they now have a lien for their charges on animals that come into their possession. This lien is usually specific and is lost if possession is voluntarily surrendered. A liveryman is bound to keep his stable in a safe and reasonably sanitary condition. An agister must maintain the enclosure of his pasture. 214. Banks and bankers.-Where a depositor makes a deposit with a bank or banker the relation of creditor and debtor arises unless there is a clearly manifested intention that the identical deposit,-the same bills or the same bag of gold,—is to be returned, in which case the relation, as to that deposit, is that of bailor and bailee. 215. What constitutes an innkeeper.—An innkeeper is one who holds himself out to furnish lodging, or lodging and other entertainment, to transients for compensation. It is not necessary that his establishment should be called an inn. Indeed, in this country at least, the word "hotel" is more frequently used than "inn." The relation of innkeeper and guest is peculiar and gives rise to some peculiar rights and liabilities. The law looks to the relation in fixing these rights and liabilities and not to the word used by the parties in describing that relation. EXAMPLE 249. A, the owner of a hotel in New York City, rented a suite to B unfurnished for one year. B brought many heavy pieces of furniture, including a piano, and lived in the hotel for one year, at the expiration of which time he attempted to move out. This A prevented, claiming an innkeeper's lien or a balance due him from B. A proved at the trial of an action brought by B for conversion that he maintained a restaurant in the hotel building for his guests, most of whom were transients who hired furnished rooms and took their meals in the building. It was held that the relation of innkeeper and guest |