CHAPTER X. BAILORS AND BAILEES GENERALLY. BAILMENT is a delivery of goods in trust, upon a contract expressed or implied. 1020. PART III. TIT. II. Definition Different There are six sorts of bailments: 1. A bailment of goods to keep gratuitously for bailment. the use of the bailor; which is called depositum. 2. A loan of chattels gratis, to be used by the bailee; which is called commodatum. 3. A delivery of chattels to be used by the bailee for hire, which is called locatio et conductio. 4. A delivery of chattels as a pawn or pledge, to be a security to the bailee for money borrowed from him by the bailor; which is called vadium, or pignori acceptum. 5. A delivery of chattels in order that they may be kept or carried, or that something may be done about them, for a reward, to be paid by the bailor to the bailee; which is called locatio operis faciendi. 6. A delivery of chattels to somebody who is to carry them, or do something about them, gratis; which is called mandatum. TIT. II. PART III. (Ad. Torts, 267-8; 1 Sm. L. C. 190-215; Chit. Con. 424.) 1021. CAP. X. Responsi bility of the different kinds of bailees. I. Deposi tum. II. Commodatum. I. As to the first (depositum), to constitute a deposit, the subject-matter must be in the actual or constructive possession or under the control of the bailee, and he must consent to take charge of it. The bailee has no right to use the thing deposited; but so long as he holds it rightfully, he is only answerable for great neglect for the want of that ordinary care which men of common prudence generally exercise upon their own affairs-unless he spontaneously and officiously offered to keep the goods. And the bailee will not be answerable even for gross neglect, if the bailor knew him to be such a person that ordinary care could not reasonably be expected from him. (Ad. Torts, 268; Broom Com. 780, 781; Sm. L. C. 191-2; Chit. Con. 425; Ad. Con. 429432, 435, 442; Giblin v. McMullen, L. R. 2 P. C. 317, 337.) 1022. II. As to the second (commodatum), the bailee or borrower is answerable for the least neglect, but not for reasonable wear and tear, or for robbery, or unavoidable casualty, unless he improperly keeps it after its return is requested. And the lender is responsible for defects, known to him and not to the borrower, which make the loan perilous, but not for defects not known to the lender. (Ad. Torts, 268-9; Broom Com. 783; Sm. L. C. 193; Ad. Con. 444-6; Chit. Con. 427; MacCarthy v. Young, 6 Hurl. & Norm. 329.) 1023. When money is paid into a bank, it amounts to a loan to the banker for use and consumption by him, so that the identical money ceases to be the money of the customer, and becomes the money of the banker, of which he may make any use he pleases, so long as he renders an equivalent amount when demanded. (Ad. Con. 446-7.) 1024. PART III. TIT. II. CAP. X. et con ductio. III. As to the third (locatio et conductio), III. Locatio the bailee is bound to take all ordinary care. The owner must bear the risks to which the chattel is naturally liable, but not risks occasioned by want of ordinary care on the part of the hirer. (Ad. Con. 425-6; Sm. L. C. 193; Chit. Con. 432.) 1025. If a person lets out a chattel for a particular use, he impliedly warrants that it is fit for such use. (Ad. Con. 424; Fowler v. Lock, L. R. 7 C. P. 272; 9 C. P. 751, n.; 10 C. P. 90.) 1026. The hirer is bound to use such means as a prudent man would take for the preservation of the property hired from immediate PART III. destruction. CAP. X. And unless the danger has arisen from his own fault, he may maintain an action against the owner, for such money as he, the hirer, is obliged to spend for that purpose, as money paid for the use of the owner at his implied request. (Ad. Con. 425.) 1027. The hirer, or a person to whom a chattel is delivered to be repaired, made up, or dealt with in the way of his trade, is not responsible for robbery, disease, or accident, which happens without his fault. (Ad. Con. 426.) 1028. A cab driver, who has the use of a cab on the usual terms of driving it about for his own benefit, provided he pays so much to the cab proprietor, is, as between himself and the owner, a bailee for hire, and not a servant or co-adventurer, but as between the owner and the public, he stands in the relation of a servant. (Fowler v. Lock, L. R. 7 C. P. 272; 9 C. P. 751, n.; 10 C. P. 90; Venables v. Smith, L. R. 2 Q. B. D. 279.) 1029. If the owner of a horse sends his own servant to drive it, the hirer is exempt from all responsibility, unless he takes the management himself, or desires the driver to drive in a particular manner, which occasions the damage complained of. If a horse is taken ill on the road, the hirer will not be responsible, though the horse die, if he sent for a farrier; but if he did not, he will be answerable. It is also the duty of the hirer to supply the horse with suitable food. (Ad. Torts, 270; Oliph. 202, 204, 206–7; Chit. Con. 432.) 1030. PART III. TIT. II. CAP. X. IV. As to the fourth kind of bailment IV. Vadium. (vadium or pignori acceptum), the bailee is only required to use ordinary care for restoring the chattels, unless a tender of the money has been made. But if he retains them after such tender, he will be responsible for them at all events. (Ad. Torts, 271; Sm. L. C. 194; Broom Com. 779, 785; Chit. Con. 428; Ad. Con. 309.) 1031. operis V. As to the fifth (locatio operis faciendi), V. Locatio if the bailee exercises a public employment faciendi. for pay, as in the case of a common carrier, he will be answerable at all events; subject to certain exceptions. (Ad. Torts, 271; Broom Com. 784. See infra, Part III. Tit. III. Cap. III.) 1032. But, in general, a private bailee to whom things are delivered, in order that they may be carried, or that something may be done about them, for a reward, is only obliged to use ordinary care (a). If lost, however, the (a) As to robbery, disease, or accident, see supra, par. 1028. |