§ 329. One who takes horses or cattle to pasture for a compensation, holds them as a bailee, in very nearly the same capacity as the keeper of a livery-stable the horses left with him to be kept for hire. He is a bailee, bound for the exercise of ordinary care under the circumstances.1 He holds under an implied contract to return the cattle to the owner on demand; and where he fails to return them, the burden of proof is on him to excuse his failure; and this he may do by shewing that he has used the diligence required by his contract. As bailee he has a special or qualified property in the chattels, together with the possession; he is responsible for them; he may therefore vindicate his possessory interest by an action against any stranger or third person, and he may recover in his action the full value of the property.3 The owner may also bring an action for the recovery of the property, but not both of them; in order to recover, the plaintiff must show a present right of possession in the chattels,"

§ 330. Receiving property to keep for hire, the bailee impliedly engages to preserve it with due care and reasonable skill; and this engagement obliges him, in an unforeseen emergency, to act with discretion and good sense in his treatment of the property. If the cattle or horses fall sick, it will become his duty to employ the usual means for their safety; by calling in a farrier. And as the original contract did not provide for this unexpected expense, the owner is liable for it.

1 Umlauf v. Bassett, 38 Ill., 96; Hally v. Markel, 44 Ill., 225; McCarthy v. Wolfe, 40 Mo., 520; Eastman v. Patterson, 33 Vt., 146; Smith v. Cook, L. R. Q. B. D., 79, where a horse was gored by a bull.

2 Goodfellow v. Meegan, 32 Mo., 280; see Rey v. Tonney, 24 Mo., 600.

3 Kissam v. Roberts, 6 Bosw., 154; Alt v. Weidenberg, 6 Bosw., 176; Hendricks v. Decker, 35 Barb., 293; Duncan v. Spear, 11 Wend., 54; 56 Barb., 661; Root v. Wilson, 1 Barn. & Ald., 59; 6 East, 519.

* Green v. Clarke, 12 N. Y., 343; see Spear v. Blackman, 9 Wend., 167.

5 Bush v. Lyon, 9 Cowen, 52; 25 N. Y., 348.

6 Dean v. Keete, 3 Campb. R., 4; Redding v. Hall, 1 Bibb R., 536; 3 Barb., 380; 13 Gray, 274; 3 Campb., 4

7 See the following Opinion:

SUPREME COURT.

PHILIP HARTER v. JOSHUA I. BLANCHARD.

FOURTH DEPARTMENT. Present, MULLEN, P. J., TALCOTT, and E. D. SMITH, Justices.

By the Court.-E. DARWIN SMITH, J.

This action is brought to recover for the keeping and care bestowed by the plaintiff upon the defendant's horse. From the report of the referee and the evidence advanced before him, it appears that the defendant, being a resident of Saratoga and the owner of said horse, in the fall of 1870 entrusted the same to one William P. Tanner, residing at Frankfort, in Herkimer County, to be kept

$331. The bailee receiving cattle or horses to stable or pasture for hire, does not under the common law acquire any lien upon them for

at pasture without any charge to be made therefor. That said Tanner kept said horse on his farm, and occasionally rode him, and took him to exhibit him at the Herkimer County Agricultural Fair, in November of that year, on which occasion he took him to the village of Herkimer and placed him in the hotel barn of one Tower, where he remained during the day and was left in the evening, tied with a halter, in a stall in said barn.

That on the next morning the said horse was found in the stall where he had been left the previous evening with one of his fore legs broken. That thereupon the plaintiff was sent for by said Tanner and employed by him to take care of said horse and attempt to cure him; and it was arranged between the plaintiff and said Tanner, that the said horse should be removed to the plaintiff's barn, and that he should take charge of him at that place, and he did so. This action was brought for such service by plaintiff, which the refereee finds was reasonably worth $1 per week; for which sum, with some deductions for the use of said horse by the plaintiff, judgment was directed by said referee.

From these facts it appears that the said Tanner was the naked bailee of said horse, without reward or consideration. As said bailee he was bound to exer. cise ordinary care, and was responsible only for gross negligence. (Story on Bailments, §§ 61, 62, 65, and 66.) When the horse broke his leg, the owner, the defendant, being at a distance, the said Tanner was doubtless bound, in the exercise of ordinary care, to provide for his keeping, care and cure, as he would if the horse had been his own, and would have been guilty of gross neglect if he had omitted to make such provision.

His contract with the plaintiff was a proper and reasonable one under the circumstances. This is not questioned.

The plaintiff, as I gather from the evidence, was a farrier, and was a fit and proper person and had proper accommodation for the charge of said horse. As a bailee in possession of said horse, the said Tanner had an implied authority to contract in behalf of the defendant for such care and keeping of said horse. He could no longer be pastured, aud an exigency had arisen to preserve his life and restore if possible his broken leg, which made necessary such an arrangement as the said Tanner made with plaintiff, and I have no doubt he had full authority to bind the defendant by the contract then made until at least the defendant could be informed of the accident to his horse, and could have time and opportunity to make other provision for his custody, care and keeping. The defendant, it appears, was soon apprised of the accident to the horse, and that the same was in the possession of the plaintiff, for caro and keeping, and did not disaffirm such contract or make other proposition for the charge and custody of said horse. It springs from the very nature of bailor and bailee, that the latter necessarily has authority to contract for and bind the bailor in such cases for the preservation aud care of the property in his possession, and particularly with live animals injured, as in this case; as much so as the master of a vessel has power to bind the owner for repairs arising from injury or casualty at sea. Contracts so made are clearly binding upon the principal or bailee. (Story on Bailments, §§ 198, 199; aud 1 Pothier, 167.) And this is so, even though the bailee may also be liable for such care upon a particular contract.

It seems to me quite clear that the defendant was primarily liable for the

their keeping. There must be a special contract to create such a lien; and it is held that a lien by an agreement of the parties, will not deprive the owner of his right to bring an action of trespass against a third party interfering with the property. The common law gives some bailees a lien on grounds of public convenience, and for the benefit of trade; a lien to those who are obliged to accept the custody of goods and chattels, and to those who are engaged in some particular branch of trade or commerce, and to these who by their skill and labor impart to the goods some new or additional value. The manner in which cattle are received to pasture, and in which horses are kept or boarded in a livery stable for the owner, often precludes that kind of possession which is essential to maintain a lien.*

3

A distinction is taken between the mere keeper and a trainer of horses, on the ground that the latter improves the chattels by the application of his labor and skill, and should have a lien based on that service. And it is agreed that a farrier has a lien upon horses for his services in their keeping and treatment; and that a blacksmith has a lien for shoeing them."

Under the statute law of this State, livery-stable keepers and other

care and keeping of the horse upon the facts found by the referee upon the original contract, and that he should be held liable as upon an affirmation of Tanner's contract, when he learned of it and did not disapprove it by notice to the plaintiff, directly and distinctly reclaim his horse, or make other provision for its care. And that the plaintiff's rights in this connection are not affected by the relation between Tanner and the defendant, nor by the consideration whether Tanner was guilty of such negligence in the use or abuse of the horse as to be responsible to the defendant for the injury sustained by him. The plaintiff had nothing to do with that question.

The decision of the referee upon the whole issue I think was right, and the judgment should be affirmed.

See Notara v. Henderson, L. R., 7 Q. B., 225.

1 Grinnell v. Cook, 3 Hill, 45, 491; Bissell v. Pearce, 28 N. Y., 252, 255; 38 Barb., 275; 11 Barb., 41; Goodrich v. Willard, 7 Gray, 183.

2 Neff v. Thompson, 8 Barb., 213.

3 Morgan v. Congdon, 4 N. Y., 552.

When horses are kept at livery, the owner takes and uses them at pleasure, and the bailee only has a lien so long as he retains the uninterrupted possession. Per BRONSON, J., in Grinnell v. Cook, 3 Hill, 492; see also in regard to milch cows, where the owner has occasional possession; Jackson v. Cummins, 5 Mees. & Wels., 342; Fox v. McGregor, 11 Barb., 41.

Judson v. Etheridge, 1 Cromp. & Mees., 743; 3 Hill, 492; Bevan v. Waters, 3 Carr. & P., 520; 12 J. Scott, N. S., 633; Forth v. Simpson, 13 Q. B., 380. 6 Lord v. Jones, 11 Shep., 439; Lano v. Cotton, 1 Ld. Raym., 654.

7 Cummings v. Harris, 3 Vt., 245. The stabler has a lien upon a mare left at his stable to be covered by a stallion: Scarfe v. Morgan, 4 Mees. & W., 270.

persons keeping horses at livery or at pasture, or boarding the same for hire, under an agreement with the owner, may on due notice of their charges and intention, detain the property until their reasonable charges are paid. And they may enforce their lien in any court having jurisdiction of the amount; by a suit ascertaining the amount due, and obtaining a decree of sale and foreclosure.1

§ 332. WAREHOUSEMEN.

2

Bailees of this class carry on a business of a public nature; they receive goods generally, that is, from all persons indifferently, for storage. They invite business, and impliedly license the public to enter upon their premises; the business is also of a private nature, and the license may be revoked or qualified.3 Bailees receiving goods in store, but not engaged in the business, are not clothed with all the rights which the law confers upon a warehouseman ; and their business is not covered by the statutes relating to warehouse receipts.5

The State has the right to regulate the conduct of its citizens towards each other, and the mode of transacting business affecting public interests. It has the right to make regulations affecting the use and management and charges of elevators and warehouses and railroads ; and these regulations are valid, even where they incidentally affect interstate commerce.

§ 333. A warehouseman or depositary of goods for hire, is bound for the exercise of ordinary diligence, or that care which prudent persons usually take of their own property.7 He is not like a common carrier, liable as an insurer of the goods; he is not liable for losses or injuries, where he uses all the care and diligence in relation to the property which prudent men exercise in relation to their own. Using due diligence, he is not responsible for goods stolen or embezzled by his storekeeper or servant, or for losses caused by fire, or by accident; and he

13 R. S. of N. Y., 817, 6th ed.

2 Platt v. Hibbard, 7 Cowen, 497, 500.

3 Bogert v. Haight, 20 Barb., 251; Heaney v. Heaney, 2 Denio, 625; Beardsley v. French, 7 Conn., 125.

Alt v. Weidenberg, 6 Bosw., 176; Rivara v. Ghio, 3 E. D. Smith, 264; 1 Hilton, 292.

Yenni v. McNamee, 45 N. Y., 614; see EDWARDS on Factors and Brokers, §§ 55, 58-65.

6 Munn v. Illinois, 4 Otto, 113.

7 Arent v. Squire, 1 Daly, 347, 350, and cases there cited.

8 Knapp v. Curtis, 9 Wend., 60; Platt v. Hibbard, 7 Cowen, 497.

"Schmidt v. Blood, 9 Wend., 268; 33 Barb., 241; Garside v. Trent Nav. Co., 4 T. R., 581; Cailiff v. Danvers, 1 Peake N. P., 114; 34 N, Y., 548.

is liable for the goods, where they are lost or stolen through his negli gence or want of due care.1

When a compensation is to be paid for house-room and not as a reward for care and diligence, the bailee's liability is not exactly that of a warehouseman; he is bound only for the use of reasonable diligence under the circumstances; as where the owner of goods is permitted to place them in a storeroom or outbuilding which is not specially protected or guarded against thieves, or accidental losses.3 The bailee's engagement is such as the transaction fairly implies.

§ 334. A warehouseman who is also a wharfinger or forwarding merchant, assumes the double responsibility of storing and forwarding the goods entrusted to him; and is responsible for ordinary care, skill and diligence in the discharge of the duties incident to the business." Receiving or coming into possession of the goods as a forwarder, at a given point, he is like other agents bound by the directions of his principal; he must send them forward according to his instructions, or by the usual conveyance, where his instructions fail or become impracticable. His instructions being given in general terms, he must follow them in good faith, interpreting them by the established usage and course of business." He must not deviate from his instructions, for his own convenience; and even in an emergency, he is not at liberty to go contrary to his instructions, where he can safely wait for further orders." If the contract specify the manner in which the goods are to be sent forward, the carrier may safely go by its terms.

8

§ 335. A forwarder, a person who receives and forwards goods, taking upon himself all the expenses of the transportation, is not a common carrier where he has no interest in the boats or conveyance by which they are carried. By his contract he undertakes to forward the goods, he

Halyard v. Dechelman, 29 Miss., 8 Jones, 459; Petty v. Overall, 42 Ala., 145; 46 N. Y., 271, 278.

2 Finucane v. Small, 1 Esp. N. P. R., 315; Foote v. Storrs, 2 Barb., 326; see circumstances disclosed in Trust v. Pirrsson, 1 Hilton, 292; 8 Taunt. R., 443. 338 N. Y., 240; SUTHERLAND, J., in Schmidt v. Blood, 9 Wend., 271.

4 Bush v. Miller, 13 Barb., 481; Gilbert v. Dole, 5 Ad. & Ellis, 540; White v. Humphrey, 11 Q. B., 43.

223.

Johnson v. N. Y. Central R. Co., 31 Barb., 196; Ackley v. Kellogg, 8 Cowen,

6 Van Santvoord v. St. John, 6 Hill, 157; the address on the goods was re

garded as a general direction; see Brown v. Dennison, 2 Wend., 593.

7 Johnson v. N. Y. Central R. Co., 33 N. Y., 610; Forsyth v. Walker, 9 Barr.

Hinckley v. N. Y. C. & H. R. R. Co., 56 N. Y., 429.