without fault on the part of the bailec, after services have been bestowed upon it, the law allows a recovery for the work done. It allows a recovery as in other cases disconnected with a bailment; upon the same principles which are applied to an ordinary contract, and subject to the same defences.2 If the work be commenced under a special contract, as repairs upon a vessel under a specific agreement, and the special agreement is departed from as the work proceeds by the mutual consent of the parties, a recovery may be had under the contract as far as it has been performed, and for the new work upon a quantum meruit.3

§ 444. The bailee for work and services is bound to take reasonable care of the goods or chattels entrusted to him; namely, that care which the nature of the property and the circumstances call for. And he impliedly engages to perform the services to be rendered upon them, in a skillful and workmanlike manner. By receiving the goods or chattels to be made or repaired in the line of his business, he is understood to engage that he possesses and will exercise the requisite skill. He cannot recover for unskillful services; and he is liable in damages for his failure to fulfill the contract.

The skill demanded must be measured by the difficulty and delicacy of the work to be done, because the bailee for hire is bound to apply a degree of skill equal to his undertaking; whether it be to repair a watch or make a telescope. Ordinary skill in the making of delicate instruments of science, music and the higher arts, may be, with reference to other branches of industry, a high order of skill; but the standard of skill exacted by the law, is that which is common and ordinary in the particular work or business undertaken.

§ 445. Since the obligation to possess and exercise skill, springs out of a man's calling, employment or business, it is quite clear that an unskillful man is not liable in damages for his defective work, when employed in a business which he does not follow. The employer knowing his lack of skill, cannot complain of his ill success; he falls under the oracular sentence cited from the Mohammedan law: "A man who had a

1 Menetone v. Athawes, 3 Burr., 1592. A loss by fire or a loss by a violent storm excuses a bailee for hire: Ames v. Belden, 17 Barb., 513.

2 Farnsworth v. Garrard, 1 Campb., 38; Kuehn v. Wilson, 15 Wis., 104. 3 Robson v. Godfrey, 1 Stark, R., 220; Pepper v. Burland, Peake N. P. C., 103; Ellis v. Hamlet, 3 Taunt. R., 52.

✦ Lech v. Maester, 1 Campb., 138; a ship received into a dock for repairs; Clark v. Earnshaw, 1 Gow. R., 30; a chronometer watch received for repairs. 42 Kent's Comm., 588; 3 Black. Comm., 165.

6 Denew v. Daverell, 3 Campb., 451; 7 East, 479; ante §§ 426–430. Cowen's Tred., 70.

Ritchey v. West, 23 Ill., 385; 40 III., 209.

1

disorder in his eyes, called on a farrier for a remedy; and he applied to them a medicine commonly used for his patients; the man lost his sight, and brought an action for damages; but the judge said, no action lies, for if the complainant had not been himself an ass, he would never have employed a farrier." And yet a pretender is liable, where he presses himself into an engagement, or takes upon himself a business of his own wrong, excluding a competent person; he is liable for the injury he inflicts where he administers medicine or undertakes an operation upon a servant or child without employment; and whether educated or not, he is criminally liable when found guilty of gross rashness in the application of a remedy, and death ensues.*

7

§ 446. Bailees for work and services must use the same care and diligence in keeping the property which prudent and cautious men take of their own. A loss unexplained, raises a presumption that it must have occurred through negligence; and a return of goods in a damaged condition, after proof that they were delivered in good order, imposes upon the bailee the burden of proving that he used due and reasonable care of them. Evidence showing a loss by robbery excuses the bailee; but evidence shewing simply a loss, or a failure to return the goods or a theft of them by the bailee's servant, does not of itself excuse; the bailee must exculpate himself by showing that the loss occurred without any want of diligence on his part. In other words, he must account for the property; he must show that it was lost or injured by causes for which he is not answerable."

1 Jones on Bailm., 100.

3 Hook v. Grimes, 13 B. Mon., 188.

8

2 Ruddock v. Lowe, 4 F. & F., 519.

A person acting as a medical man, whether licensed or unlicensed, is cot criminally responsible for the death of a patient occasioned by his treatment, unless his conduct is characterized either by gross ignorance of his art or gross negligence. But when a person undertaking the cure of a disease, whether he has received a medical education or not, is guilty of gross rashness in the application of a remedy, and death ensues in consequence, he is liable to be convicted of manslaughter. Rex v. John St. John Long, 4 Carr & Payne, 423; Rex v. Williamson, 3 C. & P., 635; Rex v. Van Butchell, 3 C. & P., 629. Law shows no favor to quacks: Rex v. Spriller, 5 C. & P., 333—case of a corrosivo plaster placed on the head of a child; Rex v. Martin, 3 C. & P., 211, case of a child killed by giving it gin to drink.

Cairus v. Robins, 8 M. & W., 258; Reeve v. Palmer, 5 C. B. N. S., 84. Funkhouser v. Walker, 62 Ill., 59; ante § 354; 79 Penn. St., 471. "Walker v. British Guarantee Ass., 21 Law J., Q. B., 260; 18 Q. B., 277; Levy v. Bergeson, 20 La. Ann., 290, 297.

Clark v. Earnshaw, Gow., 30; Finucane v. Small, 1 Esp., 315; 4 Taunt., 787; Halyard v. Dechelman, 29 Mo., 459.

9 Waller v. Parker, 5 Coldw. (Tenn.), 476; Hillyard v. Crabtree, 11 Texas, 264; Spangler v. Eicholtz, 25 Ill., 297; Conwell v. Smith, 8 Ind., 530.

§ 447. Fulfillment of the Contract. The bailee must fulfill the stipulations of his contract, to the same extent as any other party; and hence his right to recover for services depends upon his performance according to the true intent of the contract. His interest in the property accrues upon such performance, and the contract being entire, his right to recover for his services must ordinarily accrue upon the same implied condition.1 So long as the work is in progress, in accordance with the terms of the agreement, the owner retains his title and the bailee his interest and rights under the contract.2 A transfer of the property by the bailee, made in good faith after a part of the work has been done, does not affect the owner's title; it neither increases nor diminishes his interest in the goods.3 A transfer to a party acting in bad faith, in fraud of the owner's rights, will not vest any interest in the transferee; and it is adjudged that a wrongful possession of chattels cannot be transmuted into a title of any kind by a process of manufac ture. The intentional wrong-doer does not stand in as favorable a light as an involuntary wrong-doer; the measure of damages against him is more strict."

When materials are manufactured on shares, the manufacturer's title accrues as against the general owner, on his fulfillment of the contract;o and his special property accrues at once as against third parties. That is to say, the contract conveys a present interest which may be defended by the bailee against all third parties, and against the owner pending the progress of the work; and an absolute title to his share when the work is finished."

8

§ 448. The law allows the bailee for services to hold the goods repaired or manufactured by him, as security for his reasonable charges; it gives him a lien on them which cannot be defeated by the owner or by his creditors. In one sense the lien arises out of the contract; it is given to the party employed to do the work, and is accessory to the right of compensation for the services; it does not arise in favor of a party

333.

10

' Pierce v. Schenck, 3 Hill, 28; Gregory v. Stryker, 2 Denio, 628; 15 Barb.,

2 Mallory v. Willis, 4 N. Y., 76.

'Hyde v. Cookson, 21 Barb., 92; Wood v. Orser, 25 N. Y., 348.

Silsbury v. McCoon, 3 N. Y., 379.

Baker v. Wheeler, 8 Wend., 505; Brown v. Sax, 7 Cowen, 95.

6 Rightmyer v. Raymond, 12 Wend., 51.

"Eaton v. Lynde, 15 Mass., 242.

Burdict v. Murray, 3 Vt., 302; 15 Mass., 242.

9 Anto § § 416, 417, 418.

10 Moore v. Hitchcock, 4 Wend., 292.

employed by the bailee.' And it does not arise against the true owner where the work is done without his knowledge or consent, express or implied.2

Being called upon for the property, the bailee should at once assert his lien, and give an accurate statement of his charges. A general refusal to surrender the goods, on the bailor's demand, accompanied by a claim that they belong to a third person, is treated as a waiver of the lien; the bailee by such refusal makes himself a party to the controversy, and must stand or fall by the title he asserts.3 Of course a surrender of the goods to the true owner will protect him against his bailor.

§ 449. There is no lien under the common law for work done or materials furnished in the erection of an edifice upon real estate. It is the statute which gives the lien and provides the mode in which it may be enforced. The reason of the statute is the same as that which supports the rule giving a bailee a lien for his labor and materials. The remedy is different. The baileo for services has simply to hold the goods as a pledge for the payment of the demand due to him; while the mechanic or material man must, in order to create a lien for the value of his labor and materials furnished and bestowed in the erection or repair of buildings, follow strictly the provisions of the statute; and must afterward foreclose his lien in the manner pointed out by the statute. The proceeding has both the advantages and the defects of a statutory remedy.5

1 Hollingworth v. Dow, 19 Pick., 228; Eaton v. Lynde, 15 Mass., 242. The party working on shares may give a third person an interest in his share; Tripp v. Riley, 15 Barb., 333; Putnam v. Wise, 1 Hill, 234.

2 Clark v. Hale, 34 Conn., 398.

3 Holbrook v. Wight, 24 Wend., 169; Everett v. Coffin, 6 Wend., 603; Picquet v. McKay, 6 Blackf., 465. A tender of the amount due, discharges the lien; La Motte v. Archer, 4 E. D. Smith, 46; the tender must cover the interest, where interest is due; Heins v. Peine, 6 Robt., 420.

+ Western Trans. Co. v. Barber, 56 N. Y., 544, 552; ante, § 353.

5

Kerby v. Daly, 45 N. Y., 84; Beals v. Cong. B'nai Jeshurun, 1 E. D. Smith, 654, 687; Blauvelt v. Wordsworth, 31 N. Y., 285; Hauptman v. Catlin, 20 N. Y., 247; Rollin v. Cross, 45 N. Y., 766.

CHAPTER VII.

OF INNKEEPERS.

2

§ 450. Any one who makes it his business to entertain travellers and passengers, and provide lodging and necessaries for them, their horses and attendants, is a common innkeeper; and it is no way material whether he have a sign before his door or not.' The keeping of an inn is not a franchise, but a lawful trade open to every person. The business is regulated by statute, and it has been treated in this State as a franchise only where there has been granted to the innkeeper the privi lege of selling strong and spirituous liquors and wines to be drank in his house. The license is required as a mode of regulating the sale of liquors to be used as a beverage, and where no such sale is intended there is no need of any license.3

§ 451. In regard to these licenses, which are but incidentally connected with our subject, precisely as the retail of spirituous liquors is but an incident to the business of an innkeeper, it is to be noticed that they are granted by the authority of a positive law, and derive their value from the fact that all other sales, less than a given quantity, are by the same law prohibited. The license confers a franchise; and the prohibitions of the statute convert the franchise into a monopoly. The State acts on the theory that it is under an obligation to restrain the evils. likely to flow from an unlimited traffic in spirituous liquors; and provides by law that the retail sale shall be made discreetly, by men carefully chosen for that purpose, on account of their good moral character. All other sales it prohibits under severe penalties, and renders them ille

1 Bae. Abr., tit. Inns and Innkeepers, B.; Dickerson v. Rogers, 4 Humph. (Tenn.), 179.

2 Overseers &c. of Crown Point v. Warner, 3 Hill, 150; People v. Murphey, 5 Parker Cr., 130.

3 Mayor &c. of New York v. Mason, 4 E. D. Smith, 142; The People v. Jones, 54 Barb., 311. The rule is different in some of the States; Curtis v. Ohio, 5 Ham. R., 324.