When a chattel is hired for a definite purpose, or for use in a particular manner; as where a horse is hired to ride or drive a certain distance or to a particular place; the hirer is guilty of a conversion where ho goes farther, or uses the chattel in a way not authorized by the contract.1 And in such unauthorized use of the property the hirer is liable for all injuries and losses; at all events, he cannot excuse his failure to return the property, by shewing that it was lost while in use by him contrary to the terms of the contract. He is thought to be liable for all injuries and losses after such unlicensed use of the property, because without authority he brings it within the operation of destructive agencies; 3 and there can be no doubt of his liability on the ground that his use of the property in violation of the agreement, is itself and act of conversion.1 Where the chattel is used in violation of the contract, the bailor by receiving payment for the unauthorized use, ratifies the act, and cannot afterwards maintain the action of trover. But he does not waive his cause of action by taking back the property; nor is he left without a remedy, where the property has been wrongfully or negligently injured by the bailee, and he receives the usual hire from him on its return. § 382. The use to be made of a hired chattel is sometimes limited by. the nature of the property. Thus, one who hires a saddle-horse, has no right to use him in a cart, or to carry loads as a beast of burden; and one who hires a vehicle constructed for the accommodation of two persons, is not at liberty to overload it with a greater number. On the same principle, the right to use a chattel terminates on its becoming unfit for further service; as where a hired horse becomes sick or lame on a journey. The mole of feeding and watering the animal, and the manner of driving him, are also prescribed by the nature of the chattel; so clearly that the hirer impliedly engages to feed, water and drive the animal with reasonable skill, prudence and discretion." § 383. The purpose for which goods or chattels are hired, may or may not enter into the contract; if it appear from the circumstances, or 1 Rotch v. Hawes, 12 Pick. R., 136; Mayor of Columbus v. Howard, 6 Ga., 213; Homer v. Thwing, 3 Pick., 492; Lewis v. McAfee, 32 Ga., 465; 5 Mass., 104; ante §§ 377, 378. 2 Hooks v. Smith, 18 Ala., 338; Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 457, 468; 5 Bosw., 395; 30 N. Y., 630. 3 Read v. Spaulding, 5 Bosw., 395; S. C., 30 N. Y., 630; 12 Gratt., 153. • Collins v. Bennett, 46 N. Y., 490; Lucas v. Trumbull, 15 Gray, 306. 5 Rotch v. Hawes, 12 Pick. R., 136; 6 Reynolds v. Shuler, 5 Cowen, 323; Livermore v. Northrup, 44 N. Y., 107. 7 Harrington v. Snyder, 3 Barb., 380; Thompson v. Harlow, 31 Ga., 348. * Mooser v. Larry, 15 Gray (Mass.), 451; Eastman v. Sanborn, 3 Allen (Mass.), 594; 6 Ga., 213; 5 Mass., 104. 1 from the language of the parties, that the hiring was intended for a given purpose, it is to be considered as a part of the contract. On the other hand, an incidental mention of the purpose for which a chattel is hired, or of the place where it is to be used, will not become an essential condition of the contract. In short, the substance of the contract confers and limits the right to use the property, and is to be ascertained as a matter of fact. Under a general hiring, the bailee acquires the right to use the chattel generally, or for any ordinary purpose; but he does not acquire the right to send it upon a dangerous voyage; especially where by the general custom, property thus employed is expressly hired for that purpose, and paid for proportionally on account of the increased risk.2 Under a contract of hiring for a term, the breach of a stipulation by the bailee in respect to the place where a chattel is to be used, without injuring or attempting to injure or impair the reversionary interest of the bailor, does not determine the bailment, and is not therefore a conversion.3 The act does not repudiate the right or title of the bailor; and it is well settled that a mere removal of a chattel without right does not amount to a conversion unless the taking or detention is with intent to convert it, or has the effect to change or destroy the chattel. The removal or the misuser renders the bailee liable for any injury or loss arising from his unauthorized act. § 384. The hirer's duty to take care of the chattels and use them well, is usually implied by law; it is seldom the subject of an express agreement. Under the rule as implied by law, the hirer must exercise the same degree of care and diligence which all prudent men, that is, the generality of mankind use, in keeping their own goods; and this rule is interpreted with some reference to the circumstances and the nature of the property. A man who hires a horse, is bound for the use of reason 1 Harvey v. Epes, 12 Gratt., 153, 176, 183. This case holds that the use of chattels (slaves) in a different place from that specified in the contract of hiring, is not of itself a conversion; but is sufficient to cast on the hirer the burden of proving that they did not fall sick and die in consequence of this employment in a different place. 2 Spencer v. Pitcher, 8 Leigh R., 565. 3 Harvey v. Epes, supra. 4 Foulder v. Willoughby, 8 Mees. & Wels., 540: trover for a span of horses put off a ferryboat, for the plaintiff's misconduct; see Eldridge v. Adams, 54 Barb., 417. See on the point of conversion: Salt Springs Nat. Bank v. Wheeler, 49 N. Y., 492; Moore v. McKibbin, 33 Barb., 246; King ads. Geil, 4 N. Y. Leg. Obs., 343. Supra, §§ 372, 381; care to be used by bailee, a drover of cattle; Maynard v. Buck, 100 Mass., 40. able care and skill in feeding and watering him ; and in driving him;" and in keeping or harnessing him at an inn. And he is liable for the direct and natural damages resulting from his failure to exercise such care and skill, or from the failure of his servants.4 The hirer may in some instances render himself liable, even where he acts in good faith and to the best of his ability; as where he undertakes to prescribe for a hired horse, taken ill on a journey, and from want of skill gives him a medicine that causes his death. He is not answerable for results where he calls in a farrier.5 § 385. The time for which chattels are hired, and the use to which they are to be applied, will generally indicate the understanding of the parties in respect to expenses and ordinary repairs. On this point the provisions of the civil code are quite specific and minute ; while under the common law, the liabilities of a bailce in this particular do not appear to be very accurately defined. When horses or other domestic animals are hired, for a journey, or for a length of time, the natural inference is, that the hirer assumes the ordinary expenses of feeding and keeping them in good condition. A like inference can hardly be made under a hiring of inanimate chattels, so as to charge the hirer with the expenses of keeping them in repair. And it is quite well settled, that the hirer of horses, cattle, or carriages, is not liable for unusual and extraordinary expenses, that become necessary for the use or the preservation of the property; as where a horse falls lame or sick on a journey, or where a carriage is broken down, or where a barge is sunken or crushed by the ice, without any fault on the part of the hirer. Under the late system of slavery, the hirer was held bound to treat the slave with a due consideration of his wants; and the law implied an agreement on the part of the hirer to furnish him with suitable food 1 Eastman v. Sanborn, 3 Allen, 594; Chase v. Moody, 55 N. H. 2 Mooers v. Larry, 15 Gray, 451; Graves v. Moses, 13 Minn., 335. 3 Hall v. Warner, 60 Barb., 193; Chase v. Moody, supra. Sinclair v. Pearson, 7 N. II., 219; and the four last above cited cases. 5 Dean v. Keete, 3 Campb. R., 4. 6 Code of La., Arts. 2346, 2362, 2634, 2665. 72 Kent's Comm., 586. The duty of keeping hired horses in a good and serviceable condition, may very well oblige the hirer to keep them properly shod. 9 Millon v. Salisbury, 13 John. R.,211; McEvers v. Steamboat Sangamon, 22 Mo., 187; 37 N. Y., 457, 439; 3 Barb., 350; Reading v. Menham, 1 Mood. & Rob., 231. This case holds that under an agreement by the owner to keep a carriage hired by the year in repair, he is bound to repair where the carriage is injured by any cause except the hirer's willful default. and shelter; but it did not require the hirer to pay for medical services and attendance upon him in sickness.1 § 386. There are cases where the bailee has not himself been guilty of any negligence and yet has a right of action for an injury to the property against a third person; and in these cases the owner should recover against the hirer the amount recovered by him against the third person. There can be little doubt that the owner's recovery should thus be made commensurate with that of his bailee, after a recovery by the latter against the third party. Deducting expenses, the bailee under these circumstances recovers and receives the damages in trust for the owner.2 § 387. Under a delivery of goods upon a double or conditional contract of hire or sale, the receiver is regarded as a bailce for most purposes: c. g., where a man receives goods upon a contract, by which he is to keep them a certain period and to become the owner if he pays for them within that time, and otherwise is to pay for the use of them; he receives them as a bailee in this sense, that the property in them is not changed till the price is paid; and if the bailee in the mean time assume to sell them, the bailment is ended, and the owner may demand and recover the goods. The contract is not allowed to operate beyond the intention of the parties; and the receiver of the goods under the agreement is not regarded as a bailee, so that a recovery by him against a trespasser for taking and converting the property will bar a second action by the vendor. The transaction does not unite the interests of the parties like a simple bailment.4 An honest purchaser from the party in possession is not liable to an action until he has had an opportunity to restore the property to the true owner.5 Purchasing with notice of the defect in the title, he can 1 The custom of hiring slaves by the week or by the season entered into the contract; and the hirer assumed the expenses of supplying them with suitablo food, as in the ordinary hire of hands upon a farm, without undertaking for their proper treatment in case of sickness. Sims v. King, 18 Ala. R., 233; Leach v. West, 16 Ala., 250; Isbel v. Nowell, 4 Gratt., 176; 10 Humph. R., 267. 2 See Bliss v. Schaub, 43 Barb., 339, 342; and Kellogg v. Sweeney, 1 Lansing R., 397; S. C., 45 N. Y., 291 and 263; 60 Barb., 198. 3 Sargent v. Gile, 8 N. IIamp. R., 325; Herring v. Hoppock, 15 N. Y., 400; Strong v. Taylor, 2 Hill R., 323; Barnett v. Pritchard, 2 Pick., 512; Fairbanks v. Phelps, 22 Pick., 535; Dresser Manuf. Co. v. Waterston, 3 Metc., 9; Herring v. Willard, 2 Sandf. R., 418; Ballard v. Burgett, 40 N. Y., 314; Carter v. Kingsman, 103 Mass., 517. Ante § 349. 4 Hasbrouck v. Lounsbury, 26 N. Y., 593; Smith v. James, 7 Cow., 323, note 300; 12 N. Y., 343. Millspaugh v. Mitchell, 8 Barb., 333; Barrett v. Warren, 3 Hill R., 348. hardly insist upon the formality of a demand before suit.1 Mere possession for a special purpose, though following an agreement for the property, does not enable a man to transfer the title.2 And there can be no title to goods gained through a felony.3 § 388. Under a bailment of goods by joint owners or by tenants in common, the contract must be fulfilled with a due regard to the relation subsisting between the bailors; and they are jointly liable on the contract. On the other hand, where two or more persons jointly hire goods or chattels for use, they are jointly liable on the contract; and where one person hires a horse which is delivered on his request to another and by him driven to death, the hirer driving another horse in company with him, both may be held jointly liable for the injury." Indeed, the rule is general, that where an act is done by the co-operation of several persons, causing an immediate injury, all may be held jointly liable; both when the act may be characterized as a direct trespass, and when it is the result of negligence by all, working a direct injury.8 Some concert of action, or at least co-operation is necessary to maintain the action of trespass against partics sued as joint trespassers." Concurrence without concert of action in an act of negligence, renders the parties liable jointly and severally for the injury.10 A joint action cannot be maintained against a master and servant for a willful injury done by the latter in driving his master's carriage in his absence; and the current of authority allows the action against both for an injury caused by the servant's negligence, in the master's absence, in driving his team or in the prosecution of his business; 11 and 1 Wooster v. Sherwood, 25 N. Y., 278. 2 Bassett v. Spofford, 45 N. Y., 278 3 Brower v. Peabody, 13 N. Y., 121. + Ante § 56; Davis v. Lottich, 46 N. Y., 393; Beecher v. Bennett, 11 Barb., 374. 5 Belfast &c. Plank Road Co. v. Chamberlain, 32 N. Y., 651. 6 O'Brien v. Bround, 2 Spears (S. C.), 495. 7 Banfield v. Whipple, 10 Allen (Mass.), 27. 8 Bishop v. Ely, 9 John. R., 294; Guille v. Swan, 19 John. R., 381; Loseo v. Buchanan, 61 Barb., 88; S. C., 51 N. Y., 476; Colegrove v. Harlem & New Haven R. R. Cos., 6 Duer, 382, 402; S. C. 20 N. Y., 492; see Williams v. Sheldon, 10 Wend., 634, as to requisite concert to justify an action of trespass against several persons as joint trespassers. 9 Obzen v. Schirenburg, 3 Daly, 100. The injured party may sue one or all for an act of tort: Low v. Mumford, 14 John. R., 426. 10 Barrett v. The Third Ave. R. R. Co., 45 N. Y., 628; Klander v. McGrath, 35 Penn. St., 128; Hawkesworth v. Thompson, 93 Mass., 77; Pfau v. Williamson, 63 Ill., 16, holds contractor liable to e:nployer. 11 Wright v. Wilcox, 19 Wend., 343; Phelps v. Wait, 30 N. Y., 78; Losee v. Buchanan, 61 Barb., 86, 88; see Parsons v. Winchell, 5 Cush., 592. |