The owner of personal property, bailed for hire, cannot always follow and reclaim it, after the term has expired. For example, where the owners of real estate with buildings thereon, hire a steam engine and boilers on an agreement to surrender them at the end of the term; and presently affix the same firmly to the freehold, so that they cannot be removed without seriously injuring the building in which they are placed; and thereupon transfer the premises to a person having no notice of the bailor's claim; the purchaser takes the property. The bailor's remedy is against the hirer.1 As between the parties, the title does not pass, where the chattels can be detached without changing their qualities and value.2

On the other hand, the owner of real estate is at liberty to diminish the same by suffering the timber to be cut off or the buildings to be detached, and removed in the form of personal property; and where a mortgagee having the right to prevent such removal, does not interfere, and the property is removed by the purchaser, in good faith, his title will prevail. Cutting off the timber, so as to injure the freehold, is an act of waste; and it may be prevented by the reversioner or remainderman. And the mortgagee of the premises may maintain an action against the mortgagor or against his grantee for the removal of timber or buildings, with knowledge that the security will be thereby injured.5

§ 404. Termination of the Contract. The contract of hire for use is terminated when it has been fully performed, and in the various ways which interrupt its continuance or prevent its execution. When the time of the bailment has expired, or its object has been accomplished, it is the hirer's duty to restore the things bailed. He cannot retain and use the property beyond the time agreed upon, without rendering himself liable for all casualties; nor after the purpose for which it was hired has been accomplished, without being answerable for all damages; and yet it can hardly be said that a mere neglect to return,

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1 Fryatt v. Sullivan Co., 5 Hill, 116; S. C., 7 Hill, 529; Snediker v. Warring, 12 N. Y., 170.

2 Ford v. Cobb, 20 N. Y., 344; Tift v. Horton, 53 N. Y., 377.

3 Wilson v. Maltby, 59 N. Y., 126.

4 People v. Alberty, 11 Wend., 160; Thomas v. Crofut, 14 N. Y.,

Gregor v. Brown, 10 N. Y., 114; McCoy v. Wait, 51 Barb., 225.

5 Van Pelt v. McGraw, 4 N. Y., 110; Gates v. Joice, 11 John. R., 136.

• Wheelock v. Wheelwright, 5 Mass. R., 104; Homer v. Thwing, 3 Pick. R., 492.

Rotch v. Hawes, 12 Pick., 136; Schenck v. Strong, 1 Sonth., 87. In Wheelock v. Wheelwright, 5 Mass., 104, the Court held that trover and not case was the proper action, where a party hired a horse for a drive of four miles and drove him eight and killed him, and it was agreed that the hirer did not drive

'where there is no intention to misappropriate or convert the property, does of itself operate to change the rule of liability. Under a general hiring, and in the absence of any special agreement or usage determining the time, the return should be made on the bailor's request or within a reasonable time thereafter.2 In some situations a demand is necessary before a suit can be maintained; and this is doubtless so in all cases of a general hiring, where the usage or circumstances do not prescribe the time of the return. But where the hiring is for a specific purpose or time, a failure to return the chattel after the time has expired, or the purpose has been fulfilled, is a breach of the contract; and for this reasonable damages may be recovered.*

§ 405. The mode, time and place of the return are often determined by the circumstances. The hirer is under an implied agreement to restore the chattels, and ordinarily he must return them to the place from which they were taken ;5 or to the bailor at his residence; taking care to deliver them into his actual custody. The place of the return is determined with reference to the nature of the thing to be restored and the relative situation of the parties. Being bound to return the things bailed within a given time, or directly after the purpose for which he hired them has been answered, the hirer stands in a relation to the bailor, analogous to that of a debtor to his creditor; and where no place for the return has been agreed upon, he is reasonably bound to seek the bailor and ascertain where he will receive the goods. His duty is not distinguishable from that of a debtor, under a promise to make a payment in

immoderately or neglect to feed and cover the horse properly. In Homer v. Thwing, 3 Pick., 492, the same rule was held against an infant defendant on similar facts. In Rotch v. Hawes, 12 Pick., 135, on similar facts, i. c., going beyond the place agreed upon, it was adjudged that trover would not lie, where the owner accepted pay for the whole distance after the return of the horse. The doctrine of these cases is well settled. Disbrow v. Tenbroeck, 4 E. D. Smith, 397; 117 Mass., 102.

1 A refusal to return on demand, after the time agreed upon, is clearly tortious; and the hirer may be guilty of a larceny where he hires with the intent to appropriate or steal a chattel; Brannan's case, 1 City H. Rec., 50; and Jeffer's case, Id., 83; Ellis v. People, 21 How. Pr., 356; see Peoplo v. Call, 1 Denio, 120; Regina v. Brown, 36 Eng. Law and Eq., 610; 1 Sweeny, 433; Hildebrand v. People, 56 N. Y., 334; Smith v. People, 53 N. Y., 111.

* Cobb v. Wallace, 5 Coldw., 539, involves the bailment of a barge; and rights and duties under the contract.

3 Westcott v. Thompson, 18 N. Y., 363; Westcott v. Tilton, 1 Duer, 53. Russell v. Roberts, 3 E. D. Smith, 318.

Moson v. Briggs, 16 Mass. R., 453; Hunt v. Wyman, 100 Mass., 198. Barus v. Graham, 4 Cowen, 452; so held of a note payable in lumber. 'Esmay v. Fanning, 9 Barb., 176; 55 Barb., 188, 193.

specific articles; and it can only be fulfilled by some affirmative action on his part. At the same time, it is a duty that may be modified by the agreement, and by the implied understanding of the parties arising from the nature of the chattels; or from a request relating to the delivery,3

§ 406. It is the hirer's duty to restore the goods or chattels to the owner or to his authorized agent; a duty so important that the law does not absolve him from it, or suffer him to answer the owner's action for the goods, by shewing that he delivered them to the wrong person by mistake. The intentional delivery to another party, being unauthorized, is treated as a tortious act, because it deprives the owner of his goods; 5 and because a rule so strict is necessary for the protection of property. Indeed, the wrongful appropriation or disposition of personal property is often made on a mistake of fact, where the title is in dispute; and in these cases also, an honest intention is quite consistent with a conversion."

3

An accidental loss of the goods is not a conversion, and does not render the bailee liable for them; and in like manner injuries to the property without misconduct on his part, are to be borne by the owner.

§ 407. Where the bailee has been guilty of an act of conversion, a redelivery of the things bailed, will not protect him from an action for the damages sustained by his misuse of the property while in his custody. The acceptance of the property on its return in a damaged condition, is not a waiver of the bailor's right of action for the dam

1 Coit v. Houston, 3 John. Cases, 243; Lush v. Druse, 4 Wend., 313; Barns v. Graham, 4 Cow., 452; the contract determines the place of payment; Sheldon v. Skinner, 4 Wend., 525, 523; Lobdell v. Hopkins, 5 Cowen, 516; Slingerland v. Morse, 8 John. R., 474; La Farge v. Rickert, 5 Wend., 187.

2 Gilbert v. Danforth, 6 N. Y. (2 Seld.), 585; Rice v. Churchill, 2 Denio, 145, holding that the occupation of the maker of a note payable in property or goods bears on and may fix the place of the payment; Vanco v. Bloomer, 20 Wend., 196, and cases there cited; Cobb v. Wallace, supra.

3 Wheclock v. Tanner, 33 N. Y., 481.

4 Esmay v. Fanning, 9 Barb., 176; Devereau v. Barclay, 2 Barn. and Ald., 702; Packard v. Getman, 4 Wend., 613; Wright v. Ames, 2 Keyes, 221.

Spencer v. Blackman, 9 Wend., 167; Syeds v. Hay, 4 T. R., 250. The baileo may recover back tho goods; Hudson River R. R. Co. v. Lounsbury, 25 Barb., 597; Hicks v. Cleveland, 43 N. Y., 81; Willard v. Bridge, 4 Barb., 361. 6 Hoffman v. Carow, 22 Wend., 285; Boyco v. Brockway, 31 N. Y., 490. 7 Everett v. Coffin, 6 Wend., 603; Williams v. Merle, 11 Wend., 80; Groot v. Gile, 51 N. Y., 431.

Sault S. N. Bank v. Wheeler, 48 N. Y., 492.

9 Reynolds v. Shuler, 5 Cowen R., 323; see Brewster v. Silliman, 38 N. Y., 423, 428.

ages; it is merely a fact which may be proved in mitigation of damages. Taking back the property, and receiving pay for the use of it contrary to the contract, has been treated as a waiver of the action of trover based on such misuse; and it has been held that taking hire for the unauthorized use of the property, where it is destroyed and not returned, does not preclude the owner from maintaining an action for the conversion. And it is reasonably clear that an action for damages, based on the bailec's negligence, may be maintained for the injury, after the hire has been paid and the chattel taken back."

§ 408. A demand is necessary before suit, where the bailee is under an agreement to deliver on demand; and the circumstances will generally indicate the place where the demand should be made." Being bound generally to return the goods on a day named, or within a given time, the bailee must seek out the party to whom they are to be deliyered, and ascertain where he will receive them. And a tender of the articles at the time and place designated or required by the contract, properly and duly set apart and protected, as it will discharge a debtor, is without doubt enough to acquit the bailee of his responsibility for a return of the goods.

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§ 409. The contract of bailment is also terminated by the loss or destruction of the things bailed, without any fault on the part of the bailee; because being connected with the custody of the things hired, it cannot continue in force after the subject matter of the contract ceases to exist. On the death of a chattel hired for a year, there is a failure of consideration for the payment of wages or hire from that point of time; and the bailor must be content to recover compensation up to that date.10 And the rule is not different where the hirer has agreed to return the chattel at the end of the term; inasmuch as a total loss of it

1 Murray v. Burling, 10 John. R., 172; Baylies v. Fisher, 7 Bing, 153; Gibbs v. Chase, 10 Mass., 125.

2 Dailey v. Crowley, 5 Lansing, 301.

Rotch v. Hawes, 12 Pick., 133.

4 Disbrow v. Tenbroeck, 3 E. D. Smith, 397.

Fox v. Pruden, 3 Daly, 187.

6 Lobdell v. Hopkins, 5 Cowen, 514; Farrow v. Bragg, 30 Ala., 231; Dunlap v. Hunting, 2 Denio, 643.

7 Scott v. Crane, 1 Conn., 255; 5 Id., 76; 16 Mass., 453; 8 John., 474. Smith v. Loomis, 7 Conn., 110; Robinson v. Batchelder, 4 N. H., 46.

9 For example, a capture of the things bailed by the military forces of the Government; Watkins v. Roberts, 26 Ind., 167.

10 Young v. Bruces, 5 Litt. R., 324; Collins v. Woodruff, 4 Eng. R., 463; Cutler v. Powell, 6 Term R., 320; Appleby v. Dodd, 8 East R., 300; Muldrow v. Wilmington &c. R. R. Co., 13 Rich. (S. C.), 69.

without fault on his part, discharges him from the duty to restore the property. His agreement to return, does not bind him to insure the property; and it is not to be interpreted in analogy with the contract of a tenant for a term of years, who is held liable for the rent under the strict rules of the common law even after the buildings on the premises are destroyed by fire. Allowing the analogy to hold good, the rule is now admitted to be unjust, and it has been changed by statute.3

A termination of the bailor's interest in the goods by a sale or transfer pending the contract of bailment, cannot affect the rights of the bailce; because the bailor can only transfer his reversionary interest; so that a purchaser from him will simply take his title. A want of title in the bailor does not of itself defeat the contract of bailment ; that is to say, where the bailce is not called upon or compelled to recognize the title paramount. On the other hand, a termination of the bailor's title which puts an end to the bailee's right to the further use of the chattel, will end the bailment; as where a slave became free in the middle of the year for which he was hired out by his master." A sale to the bailee will make him the absolute owner; but a bailment for hire, with a stipulation that the bailee is to become the owner on certain conditions, will not enable him to transfer the title until those conditions are fufillled."

§ 410. BAILMENT FOR LABOR AND SERVICES.

In a general sense the hire of labor and services is the essence of every species of bailment, in which a compensation is to be paid for care and attention or labor bestowed upon the things bailed. The hire of custody, where goods are deposited for safe keeping; the contract of wharfingers, carriers, forwarding and commission merchants, factors and other agents, who receive goods to deliver, carry, keep, forward or sell, are all of this nature, and involve a hiring of services. The subject is usually divided into two branches; first, locatio

1 Young v. Bruces, supra; Harris v. Nichols, 5 Mun. R., 483; George v. Elliot, 2 Hen. & Mun. R., 5.

2 Harrison v. Murrell, 5 Munroe R., 359; Gates v. Green, 4 Paige Ch. R., 355. 3 Ch. 345, Laws of N. Y. for 1860; Graves v. Berdan, 26 N. Y., 493, 502. Elements, what is a loss by? See Fash v. Kavanagh, 24 How. Pr., 347.

Hodges v. Hurd, 47 Ill., 363.

5 Cook v. Holt, 48 N. Y., 275; see Simpson v. Wrenn, 50 Ill., 222; Parker v. Lombard, 100 Mass., 405; Spooner v. Holmes, 102 Mass., 503.

6 Wilkes v. Hughes, 37 Ga., 361; Bibb v. Hunter, 2 Duv. (Ky.), 494.

7 Austin v. Dye, 46 N. Y., 500; Clarko v. Jack, 7 Watts (Pa.), 375. The bailment remains until it is by the agreement converted into a sale. Dunham v. Lee, 24 Vt., 432.

Jones on Bailm., 97; Story on Bailm., § § 421, 422.