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consideration only of the particular transaction, as where the livery-keeper lets a horse, to be taken by the bailee for a journey, for a consideration paid or to be paid. Others are complicated by the consideration that the bailee receives the property in the course of a certain occupation to which the law attaches exceptional duties, imposing upon those who follow it extraordinary liabilities. Among the first may be named the case of a pledge of goods in security for a debt.' Here the goods are delivered to a bailee, whose implied undertaking is that he will keep them safely and return them when the debt is paid. Another case is that of the delivery of a thing to a mechanic, in order that some thing may be done by him upon or in respect to it, in the line of

his enıployment and for a compensation. As in each of [*634] these cases the bailment is for the benefit of both *parties,

the bailee is charged with the obligation of ordinary care, but no more.' Another case is that of the deposit of grain in a mill or warehouse, to be returned on demand. This case is peculiar in that it is commonly expected that the grain de posited will be stored with other grain of like kind and quality, so that the return of precisely the same grain will be impossible. This circumstance, however, does not vary the rules of legal responsibility. The bailor is entitled to receive from the aggre

1 A bank, as bailee of bonds deposited as security for a loan, is bound only to ordinary care. Jenkins 0. Nat. Bank of Bowdoinham, 58 Me. 275, citing Field o. Brackett, 56 Me. 121. And see Maury o. Coyle, 31 Md. 235; First Nat. Bank o. Graham, 79 Penn, St. 106; S.C. 21 Am. Rep. 49. A warehouseman is only liable for want of ordinary care. Mobile, &c., R. R. Co, o Prewitt, 46 Ala, 63. As to the liability of a national bank as gratuitous bailee, see DeHaven 0. Kensington Bank, 81 Penn. St. 95; Wiley o. First Nat.

ank, 47 Vt. 546; S. C. 19 Am. Rep. 122 and cases, p. 754, n. 5, supra.

2 So when cotton is left to be ginned. Kelton v. Taylor, 11 Lea, 264; horse left with stable keeper over night. Dennis v. Huyck, 48 Mich.

620; logs to be sawed left with saw. yer. Gleason 0. Beers, 59 Vt. 581; notes left for collection, Kincheloe e. Priest, 89 Mo. 240; when a horse is hired. Carrier 0. Dorrance, 19 S. C. 30. An agricultural society is liable for goods, stolen through its degligence from its fair ground, which had been left for exhibition. Vigo Ag'l. Soc. o. Brumfiel, 102 Ind. 146. A bailee for hire of cars to be returned in as good condition as when received, ordinary wear excepted, is not liable for loss from fire occurring without its fault, St. Paul, &c., R. R. Co. v. Minn., &c., Ry Co., 26 Minn, 243. In Mass. under a libe contract the bailee of a piano was held liable where the loss occurred from the blowing down of the house. Harvey o. Murray, 136 Mass. 377.

gate an amount of grain of like kind and quality equal to the deposit, and the bailee must deliver it on demand, or he must show an excuse which does not involve a want of ordinary care on his part. It would be a valid excuse if, while he was in the exercise of ordinary care, the grain was stolen, or was destroyed by an accidental or incendiary fire.' If, however, by the custom of the business, a warehouseman is expected to buy and sell, and to store what he buys with that which he receives on deposit, making his sales from the aggregate, this course of dealing negatives the supposition that the grain deposited is to remain subject to call. It is, therefore, not a bailment, but it is a sale of the grain on an undertaking to pay for it on demand in grain of like kind and quality; and all risks are upon the warehouseman.

Every bailee is bound, in his use of the property, to keep within the terms of the bailment. If he hires a horse to go to one place, but goes with it to another, he is guilty of a conversion of the horse from the moment the departure from the journey agreed upon takes place. It is immaterial that the change is not injurious to the interests of the bailor; it is enough that it is not within the contract.: Contracts are matters of *agreement, and even a more beneficial contract [*635] cannot be substituted for another without the mutual assent upon which all agreements must rest.

Innkeepers. Among the employments to which special obligations are attached is that of an innkeeper. An innkeeper is one who holds himself ont to the public as ready to accommodate all


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'Erwin o. Clark, 13 Mich. 10; Per. kins v. Dacon, 13 Mich. 81; Norton 0. Woodruff, 2 N. Y. 152,

See Nelson o. Brown, 44 Iowa, 455; Young o. Miles, 20 Wis. 615.

% Nelson o. Brown, 44 Iowa, 455; Wilson 0. Cooper, 10 Iowa, 565; Smith o. Clark, 21 Wend. 83; Carlisle 0. Wallace, 12 Ind. 252; Chase 0. Washburn, 1 Ohio, (N. 8.) 244; Sou. Australian Ins. Co. o. Randell, L. R. 3 P. C. 101; Jones 0. Kemp, 49 Mich. 9. But see Sexton o. Graham, 63 Ia. 181; Ledyard 0. Hibbard, 48

Mich. 421; Schindler o. Westover, 99 Ind. 395; Dean 0. Lammers 63 Wis. 331.

3 Homer 0. Thwing, 3 Pick. 492; Rotch o. Hawes, 12 Pick. 136; Dun. can o. Sou. Car. R. R. Co., 2 Rich. 613; Columbus 0. Howard, 6 Geo. 213; Mullen o. Ensley, 8 Humph. 428. See Fox o. Young, 22 Mo. App. 386. Compare Harvey v. Epes, 12 Grat. 153, in which it was decided thut a departure from the terms of a hiring was not a conversion, unless injury was occasioued thereby.

comers with the conveniences neually supplied to travelers op their journeys.' He is bound, as a matter of law, to furnish the entertainment called for; and while he may demand his hire in advance, if he donbts the traveler's ability to pay, yet if that be paid or tendered, he must receive the person offering himself as guest at any hour of the day or night.' He would be excused, however, if the inn were full, or if the traveler were infected with a contagious disease, or if he came in a disorderly manner or intoxicated. And after having received a guest he might turn him away if his conduct was disorderly, or if he refused to comply with the reasonable rules of the establishment. And a disorderly guest might be removed with force if necessary;" bat a traveler turned away without cause, either before or after being received, may sustain an action therefor. One who only furnishes occasional entertainment is not an innkeeper;' neither is a boarding-house keeper, or one who lets lodgings and furnishes their occupants with meals.

As bailee of the personal effects which the guest brings with him to the inn, it is generally held, that where the guest himself

is not in fault, the innkeeper is responsible as insurer, [*636] except *only as against losses by the act of God or of the

public enemy.This imposes upon the innkeeper Dot See Thompson 0. Lacy, 3 B. & 5 State o. Mathews, 2 Dev. & Bat. Ald. 283. An ion is a public house 424; Lyon o. Smith, 1 Morris, (Iowa.) of entertainment for all who choose 184; Carter 0. Hobbs, 12 Mich. 52; to visit it. Pinkerton o. Woodward, Johnson 0. Reynolds, 3 Kan. 257; 33 Cal. 557. See Southwood 0. Southwood o. Myers, 3 Bush, 681. Myers, 3 Bush, 681: Dickerson o. 6 Parkhurst 0, Foster, Carth. 417; Rogers, 4 Humph. 179.

S. C. 1 Salk. 387; Shoecraft o. Bailey, 2 Hawthorn o. Hammond, 1 C. & K. 25 Iowa, 553; Pinkerton o. Wood. 404; Rex o. Ivens, 7 C. & P. 213. A ward, 33 Cal. 557; Chamberlain e. landlord in a large village is bound to Masterson, 26 Ala. 371; Wintermute have food enough for two persons 0. Clarke, 5 Sandf. 243; Walling e. who apply. Atwater o. Sawyer, 76 Potter, 35 Conn. 183. A saloon keepMe. 539.

er is not an innkeeper. Doe e. Lam3 Howell 0. Jackson, 6 C. & P. 723. ing, 4 Camp. 73. But he is bound See Calye's Case, 8 Co. 32; Markham to protect one guest from the assault 0. Brown, 8 N. H. 523. Mere appre- of another in his presence. Rommel hension that guests may be disorderly 0. Schambacher, 11 Atl. Rep. 779 will not justify their exclusion. At- (N. J.). water o. Sawyer, 76 Me. 539.

7 Mason o. Thompson, 9 Pick. 280; Whiting o. Mills, 7 Up. Can. Q. Shaw o. Berry, 31 Me. 478; Norcross B. 450; McCarthy 0. Niskern, 22 t. Norcross, 53 Me. 163; Piper e. Minn. 90.

Manny, 21 Wend. 282; Grinnell e.


only all losses attributable to his own negligence or misconduct, or those of his servants, but also such as may result from accidental fires, and the thefts or other miscondnct or negligence of third persons—a degree of responsibility which is certainly very

-a severe, and the justice and policy of which have recently been called in question, both in England and in this country. In Illinois, it is held that the loss of the goods of the guest only makes out a prima facie case of liability against the innkeeper, and that he may exonerate himself by showing that the loss was in no manner occasioned by a want of proper care and attention on his part;" and the like rule has been laid down in Vermont and in Michigan.

One important difference between innkeepers and other bailees

Cook, 3 Hill, 485; Hulett o. Swift, 33 N. Y. 571; Hill o. Owen, 5 Blackf. 323; Thickstun o. Howard, 8 Blackf. 535; Johnson 0. Richardson, 17 I. 302; Sasseen o. Clark, 37 Geo. 212; Manning o. Wells, Humph. 746; Mateer v. Brown, 1 Cal. 221; Burrows 0. Trieber, 21 Md. 320; Sibley v. Al. drich, 33 N. H. 553; Woodworth 0. Morse, 18 La. Ann. 156; Howth 0. Franklin, 20 Tex. 798; Packard 0. Northcraft, 2 Met. (Ky.) 439. Liable for goods stolen unless by guest's servant or companion. Walsh 0. Por. terfield, 87 Penn. St. 376. To be held to a stricter acountability if guest gets drunk at the hotel bar. Rubenstein o. Cruikshanks, 54 Mich. 199. Liable for iujury to horse left with him though owner stays elzewhere, Russell o. Fagan, 8 Atl. Rep. 258 (Del.). Contra, Healey o. Gray, 68 Me. 489. Liable to guest who has taken small-pox from person sick in hotel, if with knowledge of sickness landlord keeps house open for business without informing guests of the fact. Gilbert o. Hoffman, 66 Ia. 205.

An innkeeper, however, may entertain travelers and also keep boarders, and as respects the latter he is not an innkeeper, and does not assume any

such extraordinary liabilities. As to the distinction between guests and boarders, see Chamberlain o. Masterson, 26 Ala. 371; Shoecraft v. Bailey, 25 Iowa, 553; Johnson o. Reynolds, 3 Kan. 257; Hancock o Rand, 94 N. Y. 1. Special rate does not necessarily make one a boarder. Beale 0. Posey, 72 Ala. 323. Nor duration of stay. Presumption is that one coming as a guest remains such. Ross 0. Mellin, 36 Minn. 421. A farmer who receives and provides for travelers as matter of accommodation, is not an innkeeper, though he receives pay therefor. Howth 0. Franklin, 20 Tex. 798. One who keeps a bathing house, separate from his inn, is not liable as innkeeper for clothes stolen from bathing house.

Minor v. Staples, 71 Me. 316.

· See Burgess v. Clements, 4 M. & 8. 306; Dawson v. Chamney, 5 Q. B. 164. Merritt o. Claghorn, 23 Vt. 177.

2 Metcalf o. Hess, 14 Ill. 129. And see Laird v. Eichold, 10 Ind. 212.

3 Merritt o. Claghorn, 23 Vt. 177; Cutler v. Bonney, 30 Mich. 259. See Clary v. Willey, 49 Vt. 55. And as to boarders in a hotel, see Vance 0. Throckmorton, 5 Bush, 41.


is, that the former do not necessarily come into actual possession of the thing bailed; usually they have a constructive possession only. Their liability extends to the traveler's luggage, to the

clothes upon his person, and to the money in his pocket.' [*637] It has *been held that the grain in the traveler's sleigh,

when brought within the enclosure, was constructively in the innkeeper's possession ;' and in a very careful decision the landlord has been held responsible for a considerable sum of money taken from a trunk in a traveler's room, though the trafeler appears to have left the room unguarded and the key in the door, the jury having acquitted him of the charge of negligence." An innkeeper, at the common law, cannot relieve himself of this responsibility, or any part of it, by any notice posted about the inn which may or may not have been bronght to the notice of the guest. But by statute, in England and in many of the States, he is permitted to restrict his liability within certain limits which the statute defines, by the posting of notices in his rooms. These are very reasonable and proper statutes, but they must be strictly complied with or they will constitute no protection."

· Wilkins v. Earle, 44 N. Y. 172; S. C. 4 Am. Rep. 655. See the extent of this liability discussed at length in Vance o. Throckmorton, 5 Busb, 41. The liability extends only to such things as are brought in the character of guest. Mateer 0. Brown, 1 Cal. 221. Covers cattle brought by drover. Hilton 0. Adams, 71 Me. 19. Does not cover what is brought to the inn for business, as a stallion to the hotel barn to stand for service. Mowerg 0. Fethers, 61 N. Y. 34. See Myers v. Cottrill, 5 Biss. 465. Not liable at common law for goods stolen from a room used for business of selling by samples. Fisher o. Kelsey, 121 U. S. 383.

2 Clute v. Wiggins, 14 Johns, 175. Bee Hill 0. Owen, 5 Blackf. 323; Ma. son o. Thompson, 9 Pick. 280; Pack. ard v. Northcraft, 2 Met. (Ky.) 439.

8 Berkshire Woolen Co. v. Proctor, 7 Cush. 417. And, see Burrows 0. Trieber, 21 Md. 320; S. C. 27 Md. 130; Classen o. Leopold, 2 Sweeney, 705;

Buddenburg o. Benner, 1 Hilt. 84;
Spring v. Hager, 13 N. E. Rep. 479
(Mass). So where money taken from
belt on traveller's person after forcing
back the bolt to the door of his room.
Smith o. Wilson, 36 Minn. 334. A
landlord is not liable for money de
posited in his office by one who is not
a guest, and one whose purpose is
merely so to deposit is not a guest.
Arcade Hotel Co., 0. Wiatt, 4 N. E.
Rep. 398 (Ohio.). Nor is one who
goes to a hotel with a harlot for pur-
poses of prostitution a guest who can
hold a landlord for such deposit.
Curtis o.

Murphy, 63 Wis. 4.
* Bodwell o. Bragg, 29 Iowa, 232;
Maltby o. Chapman, 25 Md. 310. See
Epps o. Hinds, 27 Miss. 657.

An innkeeper does not relieve bimself from responsibility by telling the guest, when he receives his property, that the guest must run all risks. Woodward o. Birch, 4 Bush, 510.

5 Porter 0. Gilkey, 57 Mo. 235; Woodworth o. Morse, 18 La. Ana

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