Page images
PDF
EPUB

But this rule by no means precludes the making of a special contract, by which the tenant, or the party who receives the animals on a dairying contract, bind himself to deliver to the owner of the animals such of the young born of them as may be stipulated; nor does it militate against a reservation on the part of the owner, by which he retains the ownership of the progeny.1

§ 350. Duty of tenant under dairy contract. The hirer of animals on a dairy contract is responsible for their safekeeping. The general obligation of the taker of animals, on a dairy contract or lease, is substantially the same as that of an ordinary hirer of chattels; he is bound to take such care of the animals as the circumstances of the case may demand, the measure thereof being that he should provide food and shelter for the animals, such as the necessities of the case require, and treat them kindly. The bailment is for a special purpose, and with reference to the animals being returned in such condition as the parties contemplated, with reference to their future usefulness; and, like other hirers of personal property, the bailee is bound to such diligence and care of the animals intrusted to him as an ordinarily prudent man would naturally bestow upon his own property of a similar character.

§ 351. For loss by theft, the hirer is not responsible.In cases of robbery the hirer is not responsible, unless the theft occurs through his negligence in failing to take due precautions against a recognized danger. Robbery is generally regarded as an accident by superior force (vis major). But if the bailee is aware that the vicinity is infested by cattle-thieves, and that there is especial danger of theft to be apprehended, he must take all due precautions within his power to place and

1 Putnam v. Wiley, 8 Johns. 432. "A person cannot maintain trespass for goods unless he has the actual or constructive possession of them at the time. He must have, at least, such a right as to be entitled to reduce the property to his possession when he pleases.

"Where A delivered to B a number of cows and sheep, which B promised to re-deliver within one year, with their increase, and to pay for such as should be lost or destroyed, and not redelivered, this was held a letting of the chattels for a year, for a valuable consideration, and not a naked bailment, and that A could not maintain trespass against a person who took them from the possession of B."

keep the animals under such guard as, under the circumstances, an ordinarily prudent person would with cattle which belonged to him.1

rule of those who hire propThere is no general property term, but only a special,

§ 352. Cattle must be kept on the leased land.-The hirer of animals on a dairy contract cannot remove them from the premises of lessor, where they are leased to him in the ordinary manner, to be kept on the premises of the owner. He comes within the principle of the erty for a certain, specified use. accorded in the property for the limited one, for the precise purposes of the bailment; and just so far as that is exceeded, the hirer becomes a wrong-doer by taking to himself that which has not been yielded by the owner, in whom lies the general property, or ownership; and he may be treated by such owner as having taken the animals to his own use, and be by him held as a purchaser of them at their full value, whenever he acts toward them in a manner inconsistent with, or in excess of, the special purpose of the letting.

The general rule of hiring applies, that if the thing let is used for a different purpose from that which was intended by the parties, or in a different manner, the hirer is not only responsible for all damages, but if a loss afterward occurs, although by inevitable casualty, he will generally be responsible therefor.2 In short, such misuser is deemed, at common law, a conversion of the property, for which the hirer is held respon- . sible to the lettor, to the full extent of his loss. And if the bailee make a sale, or other disposition of the property, antag

1 Story on Bailments, 25-27. "Bailees in general are not responsible for losses resulting from inevitable accident, or from irresistible force." "Robbery by force is deemed irresistible." "But the loss by a mere private or secret theft is not deemed to be irresistible; and whether it excuses the party or not, depends upon the nature of the bailment, and the particular circumstances of the case. If the proper degree of diligence has been used by the bailee, and, notwithstanding that, a loss by such theft ensues, he is not responsible." (Clarke v. Earnshaw, 1 Gow. N. P. Rep. 30.)

2 Robinson v. Varnell, 16 Texas, 382; Sims v. Chance, 7 Ibid, 561; Miller v. Asche, 16 Tex. 295; Trotter v. McCall, 26 Miss. 413.

8 Jones on Bailments, 68, 69, 121; 2 Lord Raym. 909, 917; Mayor v. Howard, 6 Ga. 219; Hook v. Smith, 18 Ala. 338; Isaac v. Clarke, 2 Bulst. R. 306, 309; Wilkinson v. King, 2 Camp. 335; Loeschman v. Machim, 2 Stark. 311; Youl v. Harbottle, Peake R. 49.

onistic to the purposes of the letting, the bailment would be ended, and a suit could be maintained against him by the bailor for a tortious conversion thereof, or against the purchaser, if he refuse to return the property on demand.1

1 Sargent v. Gill, 8 N. H. 325; Lovejoy v. Jones, 10 Foster, 165; Sanborn v. Coleman, 6 N. H. 14; Bailey v. Colby, 34 N. H. 29.

Part V.

REAL ESTATE.

« PreviousContinue »