injuries arising from discoverable defects. From the nature of his busi ness, he is under an obligation to furnish a carriage or a horse fit and serviceable for the contemplated use or journey. Hence where a horse becomes disabled on the journey, without any fault on the part of the hirer, the owner is obliged to pay the expenses incurred to procure other means of returning, and for medicine, nourishment and care of the horse during his sickness; whether the horse recovers or dies of the malady.2

§ 374. It is quite clear that the party letting goods or chattels on hire, with knowledge of their defective state, is liable in damages to the hirer, for injuries resulting from the use of them according to the contract. And he is liable upon the principles applicable to a sale, accompanied by a fraudulent warranty, or to an order for goods to be supplied or manufactured for a given purpose.5 Upon principle a party letting a chattel for a specified use impliedly warrants that it is fit for that use,

1 Fowler v. Lock, L. R., 10 C. P., 90; 11 English R., 268; Hadley v. Cross, 34 Vt., 586. Plaintiff hired of the defendant, a livery-stable keeper, a horse, wagon and harness, to go on a journey with his wife, and while on the journey the spring to the snap on the thill to which the harness was attached, broke; and the horse became frightened and overthrew the wagon and injured the plaintiff's wife. On the trial the Court instructed the jury that it was the defendant's duty to furnish the plaintiff with a carriage and barness reasonably strong, safe and securo for the journey; and that in his business it was his duty, by prudent examination from time to time, to keep them reasonably safe and secure; that if he should suffer them to go out without such examination it would be at his peril, should there be any defects capable of being discovered; and that the defendant was not liable for defects that could not be discovered on a careful inspection. The Court refused to apply the rule holding the carrier of passengers liable for hidden defects in their coaches. Ingalls v. Bills, 9 Metc., 1; Massachusetts holds the livery-stable keeper to a still more strict liability, namely, for personal injuries, where he lets an unsuitable horse on hire, and it runs aways; Horne v. Meakin, 115 Mass., 326.

2 Harrington v. Snyder, 3 Barb., 380.

3 A lender is thus liable, and much more the party letting goods on hire; MacCarthy v. Young, 6 Hurl. & Nor. Ex., 329; Blackemore v. The Bristol R. Co., 8 Ellis & Black., 1035, 1050; see Horne v. Meakin, 115 Mass., 326, precisely in point.

4 Levy v. Langridge, 4 Mees. & Wels., 337; the action was brought on the contract of sale of a gun, for the use of the plaintiff and his sons, with a warranty that it was made by a certain manufacturer, and was sound and safe; and it burst, injuring the plaintiff while he was using it. S. P. Sharon v. Mosher, 17 Barb., 518; 1 Daly, 436; 18 N. Y., 229.

Hoe v. Sanborn, 21 N. Y., 552, and cases there cited. If the bailor fraudulently conceals the unsoundness of a chattel let on hire, the bailee may return it; James v. Neal, 3 T. B. Mon. (Ky.), 370; Taylor v. Tillotson, 16 Wend., 494, S. P.

6 Cook v. N. Y. Floating Dry Dock Co., 1 Hilton, 436; Barrett v. Manuf Co., 1 Sweeney, 545.

especially where the contract is made in the usual course of his business, or where the hirer has not the means of judging for himself in respect to its fitness. How far the hirer may recover for personal injuries sustained in the use of the property, depends upon the rule of damages; and while it is quite clear that no recovery can be had for remote or spec ulative damages, the hirer is entitled to the damages resulting directly and naturally from a breach of the contract.1

§ 375. Where the hired goods or chattels perish, pending the bailment, the consideration for the hire or recompense to be paid for their use, terminates with their destruction; and the better opinion is that the rule holds good where the hiring is for the season or for a specified term.2 The use of the chattel being the consideration for the hire to be paid; the total loss of the property removes all possibility of deriving an income from its use, unless the hirer assumes the risk of loss by the terms of his contract. Of itself a hiring does not cast the risk upon the hirer; hence the bailor cannot recover compensation for the use of personal property after it has been destroyed or rendered unfit for use. From the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the property.3

§ 376. The use or service of personal property is sometimes hired where there is no actual bailment; as where the owner accompanies his chattels and works with them, or sends his servant charged with the custody and care of them. The contract is special, and the owner is answerable for the conduct of the servant; as where a carriage and horses are hired at a livery stable, and the owner sends his own driver with them. And the rule is the same where the coach belongs to the hirer, and the owner of the horses sends with them his own driver. The custody is not transferred; and the hirer does not stand in the relation of a bailee; the driver is not therefore to be regarded as his servant. The hirer may indeed become responsible to the full extent of a

1 Williams v. Vanderbilt, 28 N. Y., 217; Cassidy v. Le Fevre, 45 N. Y., 562; Griffin v. Colver, 13 N. Y., 439; Academy of Music v. Hackett, 2 Hilton, 217.

2 Muldrow v. Wilmington &c. R. R., 13 Rich. (S. C.), 69; so held where a slave died during the term, and also where he became free; Wilkes v. Hughes, 37 Ga., 361.

3 Taylor v. Caldwell, 113 Eng. C. R., 824; see also Dexter v. Norton, 47 N. Y., 62; and Carpenter v. Stevens, 12 Wend., 589.

Carter v. Streator, 4 Jones (N. C.) L., 62; Hughes v. Boyer, 9 Watts (Pa.), 556. In this case the owner sent his driver with horses hired for a journey. Laugher v. Pointer, 5 Barn. & Cress., 437; Quarman v. Burnett, 6 Mees. & Wels., 499; Samuel v. Wright, 5 Esp., 263; Dean v. Brauthwaite, 5 Esp,

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bailec, by making the driver his own servant or by assuming the actual management of the chattels.1

§ 377. No action can be based upon an illegal contract of bailment ; but this rule does not prevent the bailor from recovering the goods after the bailment has expired.2

A contract, hiring carriages and horses for pleasure driving on Sunday, is illegal, and no compensation for their use can be recovered; no part of the contract can be enforced. But since the statute prohibiting labor or business on the Lord's day, excepts from its operation works of necessity and charity, contracts of hiring made or services rendered on that day, must be valid, when they come within the exception. Where the contract is void because illegal, no action can be based upon the contract; but it does not follow that the owner is without a remedy for the hirer's negligence or misconduct. He receives the property into his custody, and though the agreement be invalid, it confers a license to use the property for the purpose and to the degree specified; and so where the hirer engages a team to drive to a particular place, and he drives it to another place and in so doing injures the horses, he is guilty of misconduct; he has exceeded his license; he is liable for a conversion of the team, or for the damages sustained by the owner. Without acquiring any rights under the contract, a party is entitled to protection against the tortious acts or negligent conduct of the other party; a common carrier, for example.5

§ 378. Under a hiring by an infant, the owner cannot enforce the contract; and he may enforce the legal duty to which the law binds him independent of the contract; in other words, infancy is a good defence to an action based upon the contract, and no defence to an action of tort. Hence where an infant hires a horse to go to a place agreed on,

1 Murphy v. Kaufman, 20 La. Ann. R., 559. In this case the hirer of teams for the transportation of goods, prevailed on the drivers to go beyond the place agreed upon, and was held liable for their loss on the unauthorized trip.

English v. McNair, 34 Ala., 40. The bailor under a contract rendered void by the statute of frauds, may also recover back the chattels after the bailment has expired, or where the bailee refuses to perform on his part. Bartlett v. Wheeler, 44 Barb., 162; Jones v. Hay, 52 Barb., 501.

3 McClay v. Lowell, 44 Vt., 116. Traveling on Sunday to visit one's children living away from home, 'is within the exception.

Hali v. Corcoran, 107 Mass., 251; Nodine v. Doherty, 46 Barb., 59; Woodman v. Hubbard, 5-Foster, G7; Martin v. Gloster, 46 Me., 420; contra, Wheldon v. Chappel, 8 R. I., 230; and Gregg v. Wyman, 4 Cush., 322; Frost v. Plumb, 40 Conn. 111.

Carroll v. Staten Island R. R. Co., 58 N. Y., 126; 29 Wis., 21; 23 How. U S., 209; 65 Barb., 32; 26 Penn. St., 342.

and goes beyond it or goes to another place in a different direction, he is liable in trover for an unlawful conversion of the property. He has a right to act under the contract, and while he does so the law covers him with its shield; but where he wilfully repudiates and departs from the contract, or drives the horse with great violence and cruelty, he becomes a wrong-doer, a trespasser; and though not liable in any form of action based upon the contract, he is liable in trespass or trover for his tortious act. He disaffirms the contract by his wrongful act, and the owner becomes entitled to the immediate possession; after this his liability stands upon general principles. The contract of hiring does not afford him any protection; he is in no better position than a party in possession under a license, limiting the use of the property.

§ 379. The engagements of a party taking a chattel on hire, are to put the same to no other use than that for which it is hired; to use it well. to take care of it; to restore it at the time appointed; to pay the compensation or hire; and in general to observe whatever is prescribed by the contract, or by law, or by custom.5 The hirer's contract is rarely reduced to writing, and it is seldom full and explicit. Being reduced to writing or into a form of express stipulations, it is to be enforced according to the true sense of the contract; and not necessarily in the literal sense. And where a part of the agreement is expressed in writing or in a telegram, following a verbal negotiation for a specific use of the property, the oral as well as the written part of the contract is to be carried into effect; and where taken together the stipulations by the bailor limit the use to be made of the property, the hirer is liable for any loss or injury befalling the same, while it is appropriated to a different use."

Homer v. Thwing, 3 Pick. R., 492; Fish v. Ferris, 5 Duer R., 49. Campbell v. Stakes, 2 Wend., 137; approved in argument in Hartfield v. Roper, 21 Wend., 615, 620; Veese v. Smith, 6 Cranch, 226; Green v. Greenbank, 4 Eng. Com. Law, 375; Jennings v. Randall, 8 T. R., 335; see Munger v. Hess, 28 Barb., 75; 4 Robt., 553, 559.

3 An action on the case is not the proper remedy; 2 Wend., 137; 8 N. Y., 430, 441.

Tifft v. Tifft, 4 Denio, 175; Wallace v. Morss, 5 Hill, 391. The infant's right of control over the property is no greater than that of an adult; and an adult must have authority for what he does with the property of another. Anderson v. Nichols, 5 Bosw., 121; S. C., 28 N. Y. 600.

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Harrington v. Snyder, 3 Barb., 380; 2 Kent's Com., 586, 587; see New York v. Mabie, 2 Duer, 401; 44 Barb., 472.

McEvers v. Steamboat Sangamon, 22 Mo., 187; in this case the barge hired was destroyed by irresistible force, viz., ice in the river, and the bailee's promise to return the barge in good order, was held discharged.

7 Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 457; Buchanan v. Smith, 10-Hun., 474.

The oral negotiations become merged in the written agreement, when that covers the same subject matter; and not, when the writing does not on its face purport to be a complete contract; or when it is made in part execution of a prior parol contract.3

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§ 380. The bailee may bind himself by an express contract for the absolute return of the property in as good condition as it was when he received it. Ho may assume a greater obligation than the law would impose upon him under the circumstances; that is to say, the law will enforce against him the very terms of his contract, in their fair meaning. A promise to return a hired chattel within a given time, is not a special contract to insure its safety; and under a hiring of hotel furniture for a year, a stipulation by the lessee to surrender the property in as good condition as reasonable use and wear thereof will permit, does not bind the lessee to insure the property against loss by fire. Under promises like these the bailee assumes no new obligation; it is not the intention of the parties that he should. He is not therefore liable for a loss or injury to the property without his fault.7

§ 381. The hirer of chattels for use, is bound to confine himself to the use for which he stipulates. The contract regulates the rights of the parties; if the hiring be general, the hirer has the use of the chattels for such purposes as they are fitted by nature, and he is responsible only for ordinary neglect. If the hiring be for a specified time, the hirer acquires an exclusive right to the use of the things hired during the term agreed upon. If on the contrary there be no time specified in the contract, and only a general agreement to pay a fixed sum by the year for the use, the bailment may be terminated at the option of the bailər.10 And in both these cases, the contract being general, the hirer is entitled to use the property in the ordinary manner; that being the implied agreement between the parties."

1 Renard v. Sampson, 12 N. Y., 561.

2 Potter v. Hopkins, 25 Wend., 417; Jeffery v. Walton, 1 Stak. R., 267.

3 McCulloch v. Girard, 4 Wash. C. C. R., 29; Blossom v. Griffin, 13 N. Y., 569. Harmony v. Bingham, 12 N. Y., 99.

Field v. Brackett, 56 Maine, 121; bailee held not liable for a loss by theft. 6 Hyland v. Paul, 33 Barb., N. Y. S. R., 241; bailee held not liable for a loss by fire.

7 Millon v. Salisbury, 13 John. R., 211; Vaughan v. Webster, 5 Harr. (Del.), 256.

Angus v. Dickerson, 1 Meigs R., 459.

9 Hartford v. Jackson, 11 N. H., 145; 8 John. R., 432; 22 Vt., 149.

10 Drake v. Redington, 9 N. H., 243. The rule is the same under a gratuitous loan for an indefinite time; Crser v. Storms, 9 Cow. R., 687.

11 Harrington v. Snyder, 3 Barb., 380; M'Neills v. Brooks, 1 Yerg. (Tenn.), 75.