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taking, and the bailor sustains damage, he must answer for that damage ; yet, if the delivery was of a nature to transfer the property, a different result would follow. In the case of a delivery to a goldsmith of a bar of silver, to be made into vases, or an ingot of gold, to be made into rings, by the civil law the whole property passed to the smith, and the employer was merely entitled as a creditor to have metal equally valuabler eturned in a certain shape.a If the metal in that case should be lost, even by irresistible force, the smith as the owner of it, would be held to bear the loss, and the creditor to be entitled to his vase or ring; though it would be otherwise, if the same metal was to be returned in its new form.b

In the case of Seymour v. Brown, a quantity of wheat was sent to a miller to be exchanged for flour, at the rate of a barrel of flour for every five bushels of wheat. The miller mixed the wheat with the mass of the wheat of the same quality belonging to himself and others, and before the flour was delivered, the mill, with all its contents, was destroyed by fire. It was held, upon the question who was to bear the loss, that as there was no fault or negligence imputable to the miller, he was not responsible for the loss, and that the property was not transferred. It was considered, that there was no sale within the intention of the parties. If the same identical wheat was to have been returned in the shape of flour, the decision was correct, according to the general principles of law applicable to the case. But as it did not appear to have been

have been understood that the wheat delivered was to be kept separate, and returned *590 *in flour, but only flour equal to wheat of such

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Dig. 19. 2. 31. b Jones on Bailment, 78, 79. Buffum v. Merry, 3 Mason's Rep. 478.

e 19 Johns. Rep. 44. This decision has been overruled in the very analogous case of Ewing v. French, 1 Blackf. Ind. Rep. 353, and in Hurd v. West, 7 Cowen, 752. 756, note, and in Smith v. Clark, 21 Wendell, 85.

quantity and quality, and as the miller acted upon that understanding, the decision was not conformable to the true and settled doctrine. There was in that case a transfer of the property in the wheat to the miller, and he was bound, at his own risk, and at all events, to have returned the flour.a

There are very embarrassing questions, as has been justly observed, b arising in cases where the labour bestowed has not been properly applied, or not according to contract, or left incomplete, or where the subject had perished before it was finished. Thus, it was held, in Ellis v. Hamlen,d that if a person undertakes to build a house upon a specified plan, and with certain materials and he departs, without leave, from the terms of the contract, he is not entitled to any compensation for his labour. This decision rests on the strict ground of contract; but the civil law speaks a more benign language, and gives the builder, acting in good faith, and in cases where the work is united with the property of the employer, an indemnity to the extent of the benefit conferred. This is also the rule in the Scotch law.e If the employer derives no benefit from the work and labour of the mechanic; (as where the whole subject matter of the undertaking is destroyed, by inevitable accident, before

* Where an article is delivered to be manufactured or altered, and the specific thing to be then restored, it is not a contract of sale, but a regular bailment locatio operis faciendi, and the bailor retains his general property, and the bailee acquiros no interest in any part of the articles (as logs to be sawed into boards,) by a mere part performance. Pierce v. Schenck, 3 Hill, 28.

Story's Com. 287.

c See supra, p. 509, note. The Scottish law deals on this subject upon very equitable grounds, for it balances the inconvenience and damage arising from the impersect or faulty performance against the benefit actually derived from the work, and gives the workman either a pro tanto compensation, or assesses him in damages, as the difference in the result may re• quire. 1 Bell's Com. 455, 456.

d 3 Taunt. Rep. 52. • 1 Bell's Com. 456.

the work is completed, and the thing delivered ;) even in that case the civil law gave to the mechanic a rateable compensation for his labour and expenses bestowed upon the materials of his employer. And Pothier concludes, that it is just and equitable ; for, as fast as the building advanced, it had become, by accession, part of the property of the owner. So, if an article be delivered to a mechanic to be repaired, or materials are delivered to be wrought into a new form and shape, and the thing is accidentally destroyed before the work is finished and

ready for delivery, without any fault or negligence *591 *on the part of the mechanic, the entire loss, accord

ing to the English law falls upon the owner of the materials; for he is bound to answer for the work and labour already bestowed. This is the general rule of law, though it is liable to be controlled by the custom of the trade. According to the French law, if the mechanic was to furnish the materials, and the thing accidental.

Dig. 19. 2. 59. Pothier, Traite du Contrat de Louage, No. 433.

Menetone v. Athawes, 3 Burr. Rep. 1592. Gillett v. Mawmen, 1 Taunt. Rep. 137. Story on Bailment, p. 287, 2d edit. But if the mechanic was by contract to complete the work before payment for a specific sum, and the employer to furnish the materials, and when the work was nearly finished the same be destroyed by an accidental fire, no compensa tion is recoverable, for the contract is entire, and performance is a condition precedent. But without a contract postponing the payment to the completion of the work, the workinan would be entitled to a pro rata payment. 3 Burr. Sup. Story on Bailment, 278, 2d edit. Brumby v. Smith, 3 Ala. Rep. N. S. 123, where A. contracted with B. to build a house on A.'s land, and A. to furnish the materials, and the builder to be paid when the house was finished. It was burnt down by accident when nearly completed, and the builder was held entitled to the value of his labor, on the maxim that A. was owner of the materials and the structure, and res perit domino. Wilson v. Knott, 3 Hump. Tenn. R. 473. So when a manufacturer agrees to construct an article out of his own materials, the property remains with him until completed and delivered. It would be the same if the manufacturer furnished the principal part of the materials, but if the employer furnished the whole or principal part of the materiale, he would retain the property during the performance of the work. Gregory v. Stryker, 2 Denio, 628.

ly perished before completion and delivery, he bears the loss both of the materials and of his work ; but if the materials were furnished by the employer, and the workman furnished only his skill and labour, and the article was destroyed without fault, and before it was finished, the one loses the materials and the other his labour.& The Civil Code of Louisiana follows, in this respect, the rule in the French code. The reason of the distinction is, that, in the one case, the employer is the owner of the article or subject with which the labour is incorporated ; and, in the other case, the workman is the owner. The principle is still the same. Res perit domino.c

Mr. Justice Storyd subdivides this head of Locatio into 1. Locatio operis faciendi, or hire of labour and services. 2. Locatio cutodiæ, or receiving goods on deposite for hire. He includes under their last head, agisters of cattle, warehousemen and wharfingers; and to these may be added, a class of bailees known in this country by the term of forwarding men or merchants. They are all responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent, unless the business and duty of carriers be atached to their other character.e *But INNKEEPERS form *592 an exception to the general rule, and they are held responsible to as strict and severe an extent as common

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· Code Civil, No. 1788, 1789, 1790. 2 Pardessus, Droit Comm. p. 2. tit. 7. art. 526.

Civil Code of Louisiana, art. 2731. Seguin v. Debon, 3 Martin's Lou. Rep. 6.

Story's Comm. 285. d Ibid. 276.

• Carliff v. Danvers, Peak's N. P. Rep. 114. Finucane v. Small, 1 Esp. N. P. Rep. 315. Garside v. Trent Navigation Co., 4 Term Rep. 551. Sidaways v. Todd, 2 Starkie's N. P. Rep. 400. Platt v. Hibbard, 7 Cowen's Rep. 497. Brown v. Dennison, 2 Wendell's Rep. 593. Schmidt v. Blood, 9 Wend. Rep. 268. Streeter v. Horlock, 7 Bing. Rep. 34. Ro. berts v. Turner, 12 Johns. Rep. 232. Story's Com. 289—297, 2d edit. See, also, supra, p. 600. n. d.

carriers ; and the principle was taken from the Roman law, and adopted into modern jurisprudence.

(3.) The responsibility of an INNKEEPER for the horse or goods of his guest, whom he receives and accommodates for hire, has been a point of much discussion in the books. In general, he is responsible at common law for the acts of his domestics, and for thefts, and is bound to take all due care of the goods and baggage of his guests deposited in his house, or intrusted to the care of his fam. ily or servants without substraction or loss day and night. He is said to be chargeable on the ground of the profit which he receives for entertaining his guests. The custody of the goods of his guest is part and parcel of the contract to feed, lodge and accommodate the guest for a suitable reward.c

In Calye's case, it was decided upon the authority of the original writ in the register, (and which Lord Coke said was the ground of the common law on the subject)

Dig. 4. 9. The edict of the prætor included shipmasters, innkeepers, and stable-keepers in the same severe but wise and wholesome responsi. bility. See infra, vol. iii. p. 7, note a, where the edict is specially noticed. Mr. Justice Story has given a general view of the responsibility of innkeepers in the civil law and in the law of those nations of Europe which have adopted it. Story on Bailments, p. 302–306, 2d edit.

· Morse v. Slue, 1 Vent. Rep. 238. Lane v. Cotton, 12 Mod. 483. 487. Towson v. Havre-de-Grace Bank, 6 Harr. of Johns. 47.

· Holt, Ch. J., 12 Mod. Rep. 487. Grinnell v. Cook, 3 Hill's Rep. 485. An innkeeper cannot lawfully refuse to receive guests to the extent of his reasonable accommodations; nor can he impose unreasonable terms upon them. Bennett v. Meller, 5 Term Rep. 274. Thompson v. Lacey, 3 B. f Ald. 285. Hawthorn v. Hammond, 1 Carr. f Kirwan, 404. And as a compensation for the innkeeper's responsibility, the better opinion is that he has a lien on all the goods of his guest at the inn, for all his expenses there. Story on Bailments, 311, 2d edit. Lord Kenyon and Ashhurst, J., in Kirkman v. Shawcross, 6 Term Rep. 14. Grinnell v. Cook, supra. But the innkeeper is not responsible in that character for goods left in his custody unless the owner be his guest by either having been there or intending to go there in that capacity. He must be either actually or constructively the innkeeper's guest. Id.

18 Co. 32.

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