A contract of this description was styled by the civilians LOCATIO OPERIS FACIENDI, or the letting out of work to be done. The employer was called LOCATOR OPERIS, or the letter out of the work; and the workman who undertook the task, and bestowed his labour and skill in its completion, for a reward to be paid to him, was called CONDUCTOR OPERARUM, or the hirer of the work. The terms letter and hirer, however, are applicable, in different senses to each of the contracting parties. Thus the locator operis, or letter out of the work, is also conductor operarum, or hirer of the labour and services; and the conductor operis, or hirer of the work, is also locator operarum, or the letter out of the labour and services. (¿) When chattels were delivered to a warehouseman or storekeeper to be taken care of or kept for hire, the contract was a contract for the letting and hiring of care and custody, termed LOCATIO OPERIS ET CUSTODIÆ. There is a great analogy, it is observed, by the civilians, between this contract and the contract of sale; and we are told in the Digest and in the Institutes, how to discriminate between the one and the other. If, it is said, the materials for the work, as well as the work itself, have been furnished by the workman, then the contract is a contract of sale. If, on the other hand, the employer has furnished the materials, and the undertaker of the work contributes his labour merely, the contract is a contract of letting and hiring of labour. Thus, to quote an example from the Roman law, "If Titius should agree with a goldsmith for the making of a certain number of golden rings, of a specified size and weight, for ten aurei, the goldsmith to furnish both the gold and the workmanship, the contract would be a contract of buying and selling. But if Titius should give his own gold, and agree to pay only for the workmanship, then the contract would be a contract of letting and hiring simply." (c) So, if I employ a portrait-painter to paint my portrait, and the painter provides the materials for the work, as well as the labour and skill requisite for its execution, the contract is a contract of purchase and sale, rather than a contract for the letting and hiring of work. If the groundwork of the labour or the principal material entering into its composition has been provided by the employer, the contract is a contract for the letting and hiring of work, although the undertaker of the work may have furnished the accessorial materials necessary for its (b) Sed dicendum est in hac specie locationis diverso respectu eundem et locatorem et conductorem videri. Nam qui operam locare dicitur, ille idem dicitur conducere opus faciendum et ex contrario qui operam dicitur conducere, idem dicitur locare aliquid faciendum; ut conductor operis idem sit operæ locator, et locator operis idem operæ conductor. Vin. Com., lib. 3, tit. 25, p. 758. (c) Dig, lib. 19, tit. 2, lex 2; Instit. lib. 3, tit. 25, § 4, § 1; Cod, lib. 4, tit. 65. Atkinson v. Bell, 8 B. & C. 277. Grafton v. Armitage, 15 Law J., N. s. (C. P.) 20. completion. If a man, for instance, sends his own cloth to a tailor to be made into a coat, and the tailor furnishes the buttons, the thread, and the trimmings, the contract is nevertheless a letting and hiring of work, and not a contract of buying and selling. (d) When a contract has been entered into for the building of a house on the land of the employer, and the builder furnishes the timber, stone, and materials for the construction of the building, the contract is not a contract of sale, although it appears as if the builder sold the materials, but a contract of letting and hiring, because the land which is the principal material for the labour, and to which the building is merely an accessory, has been provided by the employer. (e) If, indeed, the builder is by the contract to provide the ground as well as the accessorial materials for the house, then the contract is a contract of purchase and sale. A contract of this description, like all other contracts of letting and hiring, is perfected by the bare consent of the parties, so that as soon as the mutual promises are exchanged, the right to the benefit of the work passes to the workman or hirer of the job, and the right to the labour to the employer or letter of the work. If a mutual misunderstanding has arisen without any fault or want of good faith on either side, as if the workman has mistaken the meaning of the employer and made one thing when another was ordered, the contract is void, as no valid and effectual consent to bind the parties has ever been given. If there is no mutual engagement between the parties for the one to do the work and the other to provide it and pay for its execution, there is, as we have before seen, no binding contract at all, unless the engagement is under seal. (f) The workman in such a case is not bound to enter upon his task, nor is the other party bound to provide the work and pay the hire. But we must in all cases discriminate between an executory and executed contract. When the work has been actually done, the person at whose request and by whose orders it was executed must pay for it, although the workman was originally under no legal obligation to do the work nor the employer to employ him. (g) Whenever work has been done or services have been rendered by one man at the request of another, the prima facie presumption, when there is no near relationship between the parties, is, as we have before seen, that the work is to be paid for by the person at whose request it has been executed. And if a man acquires and enjoys the services and skill of another, and assents to what has been (d) Pothier, Louage d'ouvrage, No. 394. Sykes v. Dixon, 1 P. & D. 463. (g) Ante, 29, 30, 31, 35, 214, 215. done in his behalf, this subsequent assent is equivalent to a previous authority or direction to do the act, and the party who so enjoys the benefit of what has been done in his behalf is bound to make a reasonable compensation to the workman. (h) Work and services in preserving a lost chattel from destruction, and restoring it to the owner.-Doubts have at different times been expressed as to whether a person who has voluntarily bestowed his own labour and services, and incurred expenses in the recovery and restoration of a lost chattel to the owner, is entitled to an action to recover compensation and remuneration therefor. In the case of the recovery and restoration of shipwrecked property he is clearly entitled to such a compensation, as we shall presently see when treating of salvage, and may maintain an action for its recovery, and there seems to be no valid reason for confining this the right of action to cases of salvage from shipwreck. By the civil law, finder of a chattel who had restored it to the owner was entitled to recover from the latter a reasonable compensation for his labour and services and loss of time, and all reasonable expenses incurred in preserving and restoring the thing to the owner. But he was not entitled in any case to detain the chattel for those charges and expenses, nor to demand anything for having found it. So in our own law, the finder has no right of lien upon the property found for his trouble and expenses ;(i) but he may it seems, under certain circumstances, maintain an action to recover compensation from the owner for his labour and expense in preserving and restoring it. Thus, where a quantity of timber, placed in a dock on the banks of a navigable river, became accidentally loosened, and was carried by the tide to a considerable distance, and left at low water upon a towing path, and was there found by a stranger who removed it in his waggon to a place of safety, it was held that the finder had no lien upon the timber for the expense and trouble which he had put himself to for the carriage of it; but the court seems to have thought that he would have been entitled, after the restoration of the timber to the owner, to maintain an action against him for his expenses and a reasonable compensation for the labour and service rendered. "The timber," observes Eyre, C. J., "is found lying upon the banks of the river, and is taken into the possession and under the care of the defendant, without any extraordinary exertions, without the least personal risk, and, in truth, with very little trouble. It is, therefore, a case of finding and taking care of the thing found for the owner. This is a good office, meritorious at least in the (h) Newman v. Walters, 3 B. & P. 616, ante, 30. (i) Binstead v. Buck, 2 W. Bl. 1117. Aliter in cases of salvage. moral sense of the word, and certainly entitles the party to some reasonable recompense from the bounty if not from the justice of the owner, and of which, if it were refused, a court of justice would go as far as it could go towards enforcing the payment. So it would if a horse had strayed and was taken up by some good-natured man and taken care of, till at some trouble and perhaps at some expense he had found out the owner. So it would be in every other case of finding that can be stated, the claim to the recompense differing in the degree but not in the principle." (k) To sustain an action for the price and value of work done, and of money laid out for the benefit of another, it must be alleged and must appear from the surrounding circumstances, as we have already seen, that the work was done at the request (express or implied) of the party sought to be charged with the payment of it; and whenever lost goods have been saved and preserved by the labour and skill of the finder from destruction, and the owner has received back the goods into his possession, and assented to and approved of the measures taken, and the expense incurred by the finder, this subsequent assent to what has been done by the latter is equivalent to a precedent authority, or request, and the law would, it is apprehended, imply a promise from the owner to pay a reasonable compensation and remuneration to the finder. (Ante, ch. 7.) Thus, where a passenger on board a ship, after the flight of the captain in a small boat, took the command of the vessel, and exerted himself with great skill and courage for the preservation of the vessel, and brought her safely into port and delivered her to the owner, who formally acknowledged the value of the plaintiff's services, and expressed his belief that the plaintiff had been the means of saving the ship, it was held that the latter was entitled to a reasonable remuneration in an action for work and labour bestowed by him at the request of the defendant, the shipowner, in and about the saving and preserving and safely delivering to the defendant the said ship and cargo. "The meritorious services of the plaintiff," observes Heath, J., "were expressly recognized in a letter from the defendant, who acknowledged that the ship was saved by the plaintiff's skill. It seems to me, therefore, to be the same as if he had given express orders to the plaintiff for his conduct. Omnis ratihabitio retro-trahitur et mandato priori æquiparatur." (1) "He who receives back," observes Domat, " a thing which he had lost, is obliged, on his part, to reimburse the finder the expenses incurred by (k) Eyre, C. J., Nicholson v. Chapman, 2 H. Bl. 258. (2) Heath, J., Newman v. Walters, 3 B. & P. 617. him in the preservation and restoration of the thing lost, such as the expense of feeding a strayed beast which required nourishment, or the carriage and conveyance of the thing lost to some place of safety, or the expense of advertisements, or the publication of printed notices in order to give information to the owner." (m) If the owner is present and cognizant of the exertions made to recover his lost property, it will be for a jury to determine whether there was or was not an implied request on his part for the performance of the service actually rendered, and a tacit understanding between the parties that the person doing the work should be rewarded for his pains. Honorary offices and employments.--If the employment is by custom and usage of a purely honorary and gratuitous character, the prima facie presumption of a letting and hiring of the services is rebutted as soon as the custom is proved and established. ARBITRATORS.-The office of an arbitrator is deemed to be an honorary office, and a person who acts as such cannot charge for his services, unless it appears from the terms of the submission or the surrounding circumstances of the transaction that it was the intention of the parties that the arbitrator should be paid for his time and trouble. (n) BARRISTERS and PHYSICIANS likewise exercise offices and professions of an honorary character. They are vulgarly presumed not to afford their services with any mercenary view, and cannot, therefore, maintain an action for remuneration for what they have done, unless the employer has expressly agreed to pay them. (o) If the service appears to have been rendered as a gratuitous act of kindness, or in discharge of a public duty, the primâ facie presumption of a contract of letting and hiring is repelled. (p) Thus, if a man undertakes a journey to become bail for his friend, (9) or attends as a witness in a court of justice, he is not entitled to be paid for his trouble. In the last case, as the attendance to give evidence is a duty of a public nature, an express promise to remunerate the witness for so doing is invalid; (r) but the witness is entitled to his expenses. If a sailor, clerk, or servant is bound by the nature of his retainer and |