the hirer results from the general reasoning applicable to the subject. A vendor of personal property, which is in his possession at the time, by his sale, at a fair price, is deemed to warrant the title to his vendee; and so, having leased the same, it would appear a fortiori he agrees to maintain the possession which, by letting, he has disposed of for the term of the lease.2

This applies, of course, only to the legal claims of third persons to disturb the enjoyment of the hirer of the animals leased, because for any wrong doing of a third party, by which the hirer's possession is disturbed, he must look to the law for his redress against the author of the trouble. It would be, by far, too severe a rule to impose upon the lettor the responsibility of the wrongful acts of all persons against the hirer, as that would amount to a peculiar warranty of the virtue of the whole human race. For the wrongful acts of third parties the hirer has always his remedy against them, and on this he must rely.3

§ 94. The hirer of animals must feed and care for them. -The expenses incurred in keeping a hired animal in suitable condition for use, regard being had to the object in view, under the civil law fell upon the lessor, and that the necessary disbursements should be made by the bailor has sometimes been considered to be the common-law rule in the premises,1 on the

12 Kent's Com. 478.

21 Domat, p. 265, Sec. 3, Art. 2: "If the tenant is expelled by an eviction, the lessor is liable in damages for the interruption of the lease; for although this be a kind of casualty, yet the lessor is, notwithstanding, bound to procure a free and undisturbed possession of the thing to the tenant, and to put a stop to all claims made by any other person to the thing that is let, in the same manner as the seller is obliged to do with respect to the thing he sells."

3 Story on Bailments, 387: "For the wrongful acts of third persons, the hirer has his remedy against them."

4 Story on Bailments, Sec. 388, citing 2 Kent's Comm. Sec. 586. This citation does not quite sustain the character ascribed to it by Story. The language in the section of Kent's Com. is: "The lettor, according to the civil law, is bound to keep the subject in suitable order and repair, and to pay for extraordinary expenses necessarily incurred upon it. But the extent of the obligations of the lettor under the common law, on the point of repairs and expenses, remains to be defined and settled by judicial decision." Such is the opinion expressed in the latest (12th) edition, in 1873. In Harrington v. Snyder, 3 Barbour, 380, Snyder let a horse to Harrington, and it was known to both parties that the horse was lame. A price was fixed for the use of the horse, and Harrington

reasoning that an agreement on the part of the lettor to bear these expenses arises by implication from the fact that the use and enjoyment of the thing leased cannot be had by the bailee unless it is not only delivered to him, but maintained in the condition proper and meet for its use. Such is not, however, the rule to be deduced from the decisions of the English Courts, the general tendency of which is that, in the absence of all stipulations or customs to the contrary, the hirer must keep in good order the property which is the subject of the bailment.1

§ 95. Extraordinary expenses necessarily incurred in the care of a hired animal must be borne by the lettor; 2 but the hirer should inform the lettor of the facts as quickly as the circumstances will admit of. As in a case where a hired horse is taken sick on a journey, without the fault of the hirer, the nec

said the lameness made no difference to him if the horse performed his journey. The journey which was to be performed, and the length of time which the hirer expected to be absent, were expressly agreed upon by the parties.

The horse performed the journey to the place of destination without apparent injury. On his return he became too lame to proceed, was left at a public house, and there kept, fed, and doctored for several days.

The Court held that the expenses incurred at the public house in so keeping, feeding, and doctoring the horse, should be borne by the lettor, and in the decision the Court says that it is the duty of the lettor to keep the property in suitable order and repair for the purposes of the bailment.

It is laid down as a rule by Pothier, that where a horse is let to one, on hire, to be kept by him for a certain period, the hirer is understood to be bound, according to the common usage, to pay for his shoeing during that time. But it is otherwise if a person let his coach and horses to another for a journey, to be driven by the servants of the lettor, for in such a case the horses are under the care of the servants, and the lettor is to pay for their shoeing. (Pothier Contrat de Lonange, n. 109, 129, 159.)

This reasoning is not deemed quite sound in all respects, as it would, from the general rule that the hirer should keep the property in such condition as to fulfill the requirements of the bailment, result, that even in the instance first put, where no servant went along, the horse ought to have been, at the outset, on the journey, properly shod by the hirer, and if by accident in usual wear they were knocked off or worn out on the journey, it is not apparent, under the rule, why the lettor should not bear the whole expense of shoeing.

1 Evidently the common-law rule in the premises differs much from that laid down by Pothier: the lettor, unless there is an express agreement to that effect, is not bound to repair, vide the decisions of the English Courts.

Pomfret v. Ricroft, 1 Saunders, 321-2; Countess of Shrewsbury's Case, 5 Rep. 14; Horsefall v. Mather, Holt's N. P. 7; Walton v. Waterhouse, 2 Saund. 422; Taylor v. Whitehead, 2 Doug. 745.

22 Kent's Com. Sec. 586; Story on Bailments, Secs. 389, 391; Harrington v. Snyder, 3 Barbour, 380.

essary expenses incurred in caring for him should be paid by the lettor, and this whether the horse recovers, or dies of the malady.1 These expenses, if paid by the hirer, may be recouped against a claim of the lettor for such service as the horse had performed before becoming disabled.

The risk of accidents to a hired animal is also to be borne by the lettor, and so long as the hirer exercises ordinary care, prudence, and skill, he is not responsible for damages which result from causes beyond his control. Damage happening to property let, without the default of the hirer, and while it is employed in the use for which it was hired, must be sustained by the bailor. The bailee, when called upon for the property, at the end of the time for which he has hired it, must deliver it, or account for his default by showing a loss of it by some violence or accident, which by ordinary care he could not have prevented.2

12 Kent's Com. 587; Conwell v. Smith, 8 Ind. 530; Conwell being the owner of a jack, farmed him to Smith for a standing season, for certain hire specified in the contract; the animal became diseased, and it was shown that this had been caused by his having been poisoned, and also that his spermatic cord had been punctured by some sharp instrument, from which it resulted that the animal became impotent; but it was not shown that defendant had any connection with the injuries inflicted on the jack.

It was held that the loss fell upon the bailor, under the general rule.

In Iowa, a farmer having no work which would, in winter, afford employment for his mare, agreed with his neighbor that if he would he might have the use of her through that winter season, for her feed and shelter; the proposition was accepted, and the animal was turned over and used by him; but during the winter she met with an accident and died; it appeared that she had had fair attention and care, and that she was lost through no negligence or want of ordinary care. Held, that the lettor, not the hirer, must stand the loss, and that the arrangement being for the mutual benefit of both parties, it should be regarded as an ordinary hiring, the care and feed being in lieu of price of hire, and should follow the general rule. (Chamberlain v. Cobb, 32 Iowa, p. 162.) Damages happening to property let to hire, without the default of the hirer, and while it is employed in the use for which it was hired, must be sustained by the bailor. (Miller v. Salisbury, 13 Johns. 211.)

In another case, (Edson v. Weston, 7 Cowen, 278,) defendant hired and received from plaintiff a horse, the property of Fowle, left by him, Fowle, in pledge with Edson for securing payment of a debt; defendant agreed to return him to the pledgee, Edson; while defendant so had the property it was taken from him by the constable on a suit against Fowle, the pledgor, and sold. Held, that the lettor, Edson, must not look to his bailee to bear the loss, but, the taking by the constable being a thing beyond the control of the hirer, he was exonerated. (Quere: should he not have notified the pledgee?)

2 See Ante, Note to Sec. 94.

§ 96. When hired animals are stolen, the loss falls on the owner. If a theft of hired animals is committed, and thus the animals are lost while in the possession of the bailee, who has hired them, the rule remains the same; if no negligence or lack of ordinary care has given to the theft peculiar opportunities to rob, the loss falls still upon the lettor; the rule for the measure of requisite care to clear the hirer being ordinary care and precaution, such as a man of average prudence would devote to the guarding of his own similar property. The promise, it is true, is to safely keep, and, in due time, return the property, but, under the rule, the understanding of such a promise would be deemed to be that the hirer would use due diligence and care to prevent loss or accident; and there is no breach of trust if, notwithstanding such care, the animals should be stolen.1

1 Field v. Brackett, 56 Me. 123. The facets of the case, given in the opinion, are that the plaintiff hired out to defendants his wagon, to be used by them for a month; it was admitted by defendants that they made a verbal agreement that at the end of a month they would return to plaintiff the wagon in good order, etc.; but they alleged and proved that it was stolen from them while they were in the exercise of ordinary and proper care of it; that they have never been able to find or recover the same, though to that end they had used all care and diligence.

The learned judge (Barrows) who wrote the opinion states and logically sums up the proposition and reasoning involved, in a style more earnest and free from wearisome legal phraseology than is commonly met with.

Placing himself en rapport with the parties and the transaction, he thus states the probable arrangement. On the part of the hirer, "How long do you want it" (the wagon)? "A month," is replied. "Will you bring it back in good shape in a month ?" "I will." Similar questions and answers might and proba bly would pass, in most cases, between neighbors negotiating such a transaction, without either the lettor or the hirer supposing that any special obligation (beyond that which the law implies on the part of the hirer, to be guilty of no negligence, and to return at the time appointed, in as good order as when received, ordinary wear and tear, and casualties, for which no blame could attach to the hirer, excepted) was assumed or intended to be assumed. I carry my watch to a watchmaker to be repaired. "When can I have it?" "In a week." Here is the same verbal agreement, and upon a like consideration, as that alleged in the case at bar. Yet I do not understand that the watchmaker assumes any liability for safe keeping, different from that which the law would impose, if he said nothing about the return of it to me. When he tells me I shall have my watch in a week I do not expect him to add, in good set phrase, "provided my safe is not robbed in the meantime." That is understood between us.

To the same point, Foster v. Bank, Etc. 17 Mass. 478; Petty v. Overall, 42 Ala. 145. A watch and chain were deposited by plaintiff with defendant as security to indemnify him against an appeal bond, which he had signed for plaintiff; these articles, with property belonging to himself, his wife, and daughter, were

Anything more than this would amount to an insurance of the property, which cannot be presumed to have been intended; to establish such an insurance an express agreement, founded upon adequate consideration, must be shown.

§ 97. Negligence sufficient to charge the hirer for injury to or loss of hired animals.-What constitutes negligence or want of skill, such as would charge the hirer with the loss of or injury to animals hired, depends somewhat on the circumstances of each case.

The general rule is that the hirer shall provide them with proper food, shelter, and care during the time for which, by the contract, he has them, unless there is some express understanding qualifying the agreement in this respect; and where no special engagement is shown, the law will, by implication, create such an one, and hold the hirer to it.1

The hirer must use the animal in a careful, prudent manner, reference being had to its condition and capability, he being re

stolen from defendant's house, and the question was whether, under the circumstances, the loss of the watch and chain by theft exonerates defendant, the pawnee, from liability therefor? The rule was declared to be that the liability of such a bailee, if the pledge be stolen, that he is not absolutely liable, nor absolutely excusable. If the theft is occasioned by his negligence, he is liable; if without any negligence, he is discharged, such a bailee being bound for ordinary care, and answerable for ordinary neglect.

The conclusion cannot be legitimately drawn that the theft of the watch and chain resulted from negligence on the part of the bailee. To the same point see McEvils v. Steamboat Sangama, 22 Mo. 187. But in Brown v. Waterman, 10 Cush. (Mass.) it was held to be the duty of the bailee to show that he used due precaution and took reasonable care of the property; this, however, should be taken only with reference to the general rule, that the burden of proof of negligence is on the bailor.

1 Story on Bailments, Sec. 393.

In Massachusetts, Carr hired a horse of Edwards to make a specified journey, which he made; but, when he returned the horse, it was in a condition manifesting want of proper care, feeding, and attention, and finally died from the effect of the same. It was claimed that when at the end of the outward trip the horse was not properly fed and cared for, and that death resulted from this want of care. The Court declared the law to be that, "to entitle the plaintiff to recover, he must prove that the death of the horse was caused by the overdriving, or want of ordinary care on the part of the defendant," and that if plaintiff, after the horse was returned, neglected any proper care or treatment of the horse, and thereby contributed to the illness of the animal, so that the death of the horse was occasioned partly by the misconduct of the defendant, and partly by the negligence of the plaintiff, no recovery could be had against defendant. (Edwards v. Carr, 13 Gray, 234.)