The Government Class Book Part 20

Chapter LVII.

Bailment.

--1. The word _bailment_ is from _bail_, French, to deliver. (Chap.

XVIII, --14.) Bailment, in law, is a delivery of goods, in trust, upon agreement that the trust shall be executed, and the goods restored by the bailee, when the purpose of the bailment shall have been, answered.

--2. A person who receives goods to be kept and returned without reward, must keep them with reasonable care, or, if they receive injury, he will be liable for the damage: in other words, he is responsible only for gross neglect. Gross neglect is a want of that care which every man of common sense takes of his own property. A _depositary_, who is a person with whom goods are deposited, has no right to use the goods intrusted to him.

--3. A _mandatary_, or one who undertakes to do an act for another without recompense, in respect to the thing bailed to him, is responsible for gross neglect, if he undertakes and does the work amiss; but it is thought that for agreeing to do, and not undertaking or doing at all, he is not liable for damage.

--4. The borrower of an article, as a horse, carriage, or book, without reward, is liable for damage in case of slight neglect. But if the article is applied only to the use for which it is borrowed, is used carefully by the borrower only, and returned within the time for which it was borrowed, he is not liable.

--5. Property taken in pledge as security for a debt or an engagement, must be kept with ordinary care; in other words, the p.a.w.nee is answerable only for ordinary neglect; and if the goods should then be lost or destroyed, the p.a.w.ner is still liable for the debt. If the p.a.w.nee derives any profit from the use of the property, he must apply the profits, after deducting necessary expenses, toward the debt.

--6. Another kind of bailment is the hiring of property for a reward. If an article is injured or destroyed without any fault on the part of the hirer, the loss falls on the owner, for the risk is with him.

--7. If work or care is to be bestowed for a recompense on the thing delivered, the workman is liable for ordinary neglect; and the work must be performed with proper skill, or he is answerable for damage. If a tailor receives cloth to be made into a coat, he is bound to do it in a workmanlike manner.

--8. Innkeepers are in general responsible for all injuries to the goods and baggage of their guests, even for thefts. But for loss caused by unavoidable accident, or by superior force, as robbery, they are not liable.

--9. A person who carries goods for hire in a particular case, and not as a common carrier, is answerable only for ordinary neglect, unless he expressly takes the risk of a common carrier.

--10. A common carrier is one who carries goods for hire as a common business, whether by land or by water, and is responsible to the owner of the goods, even if robbed of them. He is in the nature of an insurer, and is answerable for all losses, except in cases of the act of G.o.d, as by lightning, storms, floods, &c. and public enemies, as in time of war.

--11. A common carrier is bound to receive from any person paying or tendering the freight charges, such goods as he is accustomed to carry, and as are offered for the place to which he carries. But he may refuse to receive them if he is full, or if they are dangerous to be carried, or for other good reasons. He may refuse to take them unless the charges are paid; but if he agrees to take payment at the end of the route, he may retain them there until the freight is paid. A carrier must deliver freight in a reasonable time; but he is not liable for loss by the freezing of a river or ca.n.a.l during his voyage, if he has used due diligence.

--12. Proprietors of a stage coach do not warrant the safety of pa.s.sengers as common carriers; and they are not responsible for mere accidents to the persons of the pa.s.sengers, but only for the want of due care. Slight fault, unskillfulness, or negligence, either as to the sufficiency of the carriage, or to the driving of it, may render the owner responsible in damages for injury to pa.s.sengers. But as public carriers, they are answerable for the loss of a box or parcel of goods, though ignorant of its contents, unless the owner fraudulently conceals the value or nature of the article, or deludes the carrier by treating it as of little or no value. Public carriers are responsible for the baggage of their pa.s.sengers, though they advertise it as being at the risk of the owners.

Chapter LVIII.

Princ.i.p.al and Agent, or Factor; Broker; Lien, &c.

--1. An _agent_, or factor, is a person intrusted with the management of the business of another, who is called _princ.i.p.al_. The words _agent_ and _factor_ both signify a deputy, a subst.i.tute, or a person acting for another; but _agent_ seems to be the more comprehensive term, being applied to one who is intrusted by another with any kind of business; _factor_ more properly denotes an agent employed by merchants residing in other places to buy and sell, and transact certain other business on their account. A factor, from his being commissioned or authorized to act for his princ.i.p.al, and especially if allowed a commission, or a certain rate per cent, of the value of the goods bought or sold, is called a _commission merchant_.

--2. If a factor advances money on property intrusted to him, he can hold it until the money shall be refunded, and all charges paid. If the actual owner of the property is unknown to the factor, the person in whose name the goods were shipped, is to be deemed the owner.

--3. The right of a factor to hold property against the owner in satisfaction of a demand, is called _lien_; and the factor may sell the goods to satisfy his claim; but he must pay the surplus, if any, to the princ.i.p.al or owner. A factor can not pledge goods intrusted to him for sale, as security for his own debts. If he disposes of merchandise intrusted or consigned to him, and applies the avails to his own use, with intent to defraud the owner, he may be punished by fine and imprisonment.

--4. How far, in ordinary business, a princ.i.p.al is bound by the acts of an agent, it is not easy to determine. As a general rule the acts of a general agent; that is, one who either transacts all kinds of business for his employer, or who does all acts connected with a particular business or transaction, or which relate to some particular department of business, bind his princ.i.p.al, so long as he keeps within the general scope of his authority, though he may in some special cases act contrary to his private instructions. But an agent employed for a particular purpose, if he goes beyond the limits of his power, does not bind his princ.i.p.al.

--5. An agent is bound, in ordinary cases, to observe the instructions of his princ.i.p.al, even though an act contrary to such instructions should be intended for the benefit of the princ.i.p.al. The agent must bear, personally, all losses growing out of a non-compliance with his orders; and the profit accruing therefrom goes to the benefit of the princ.i.p.al.

An agent, however, is excused from a strict compliance with his orders, if, after receiving them, some sudden and unforeseen emergency has arisen, in consequence of which such compliance would operate as an injury to the princ.i.p.al, and frustrate his intention.

--6. When an agent receives no instructions, he must conform to the usage of trade, or to the custom applicable to the particular agency; and any deviation therefrom, unless justified by the necessity of the case, renders him solely liable for any loss or injury resulting from it.

--7. An agent is bound to exercise ordinary diligence and reasonable skill; and he is responsible only for the want thereof. Ordinary diligence is that which persons of common prudence use in conducting their own affairs. Reasonable skill is that usually possessed by persons of common capacity employed in the same business.

--8. If an agent exceed the limits of his authority, he becomes personally responsible to the person with whom he deals, if the limitations of his authority are unknown to such person. He is in like mariner responsible, if he makes a contract in his own name; or if he does not disclose the name of the princ.i.p.al, so as to enable the party with whom he deals to have recourse to the princ.i.p.al in case the agent had authority to bind him. And if the agent even buys in his own name, but for the princ.i.p.al, and without disclosing his name, the princ.i.p.al also is bound, provided the goods come to his use. Also if the princ.i.p.al is under age, or a lunatic, or otherwise incompetent to contract, the agent is liable.

--9. A _broker_ is an agent employed to negotiate sales between parties for a compensation in the form of a commission, which is commonly called _brokerage_. His business consists chiefly in negotiating exchanges; or in buying and selling stocks, goods, ships, or cargoes; or in procuring insurances and settling losses; and as he confines himself to one or the other of these branches, he is called an exchange broker, stock broker, insurance broker, &c. A broker differs from a factor. He has not the custody of the goods of his princ.i.p.al. He is merely empowered to effect the contract of sale; and when this is done, his agency ends. If a broker executes his duties in such a manner that no benefit results from them, or is guilty of gross misconduct in selling goods, he is not ent.i.tled to a commission or compensation.

--10. A _lien_, as the claim of a factor upon goods intrusted to him for sale, has been noticed. (--3.) The right of lien extends to others than factors. It is intended also for the benefit of manufacturers, mechanics, and other persons carrying on business for the accommodation of the public. A tailor has a lien upon the garment made from another's cloth until he is paid for the making; a shoemaker upon the shoes made from another's leather; a blacksmith upon the horse he has shod; an innkeeper upon the horse or goods of his guest; and common carriers upon the goods they transport. But they cannot hold the property for any other debt; nor can they sell it to satisfy their claim. Whenever a person allows property to go out of his possession, he loses his lien.

Chapter LIX.

Partnership.

--1. A partnership is an a.s.sociation formed by contract between two or more persons, for joining their money, labor, or skill, in lawful business, the profits to be divided and the loss to be borne by the partners in certain proportions. It is a partnership if one furnishes the funds and the other performs the labor; or if, when no money is necessary, each agrees to do his share of the labor. A partnership or a.s.sociation of this kind is denominated a _firm_, or _house_.

--2. The act of any one of the firm is considered the act of all, and binds all; and either of them is liable for all the debts. But if a bill or note is drawn by one partner in his own name only, without appearing to be on partnership account, he alone is bound, though it were made for a partnership purpose. A partner buying goods on his own account for his individual use, is alone liable; but if they afterward go to the use of the partnership, all become responsible.

--3. Sometimes a person agrees to receive, by way of rent, a portion of the profits of a farm, a tavern, or a manufactory; or an agent or a clerk receives a share of the profits for his labor. But as there is in these cases no partnership, the persons who buy the stock and hire the labor are alone responsible.

--4. All the partners must unite in suing and being sued. One who should conceal his name so as not to be known when the debt is contracted, may be sued when discovered to be a partner, if he shares in the profits of the trade.

--5. A partner cannot sell his interest to another person, who is to take his place in the partnership, without the consent of all the partners: nor can a partner, without such consent, withdraw when he pleases, and dissolve the partnership, except in cases in which the partnership is without any definite term. A partnership is dissolved by the death, insanity, bankruptcy, or other inability of one of the parties.

--6. When a partnership is dissolved by the withdrawal of any of the partners, notice of dissolution ought to be duly published, or a firm may be bound by a contract made by one partner in the usual course of business and in the name of the firm, with a person who contracted on the faith of the partnership, and who had no notice of the dissolution.

The same notice is necessary to protect a retiring partner from continued responsibility. And even if due notice is given, yet, if he willingly suffers his name to continue in the firm, or in the t.i.tle of the firm over the door of the shop or store, he may in certain cases be liable.

--7. In some of the states, a partnership may be formed by a number of persons, some of whom are to be responsible only to a limited amount; and their names are not to be used in the firm. Before a partnership of this kind can do business, a writing and certificate signed by the parties stating the terms of partnership, and the amount for which the _special partners_ (as they are called) are to be responsible must be recorded. The terms of partnership must also be published in a newspaper.

--8. In these _limited_ partnerships, as they are termed, the special partners are liable only to the amount stated in the terms of partnership. The other partners, called _general partners_, whose names only are used, and who transact the business, are liable for all the debts contracted, as in ordinary partnerships. If such partnership is to be dissolved by act of the parties before the expiration of the term for which it is formed, notice of dissolution must be filed and recorded, and published in a newspaper. Such is the law in the state of New York; and it is presumed to agree, in its most essential provisions, with the laws of the other states in which these partnerships are authorized.

Chapter LX.

Promissory Notes.

--1. A promissory _note_ is a written promise to pay a specified sum at a certain time, to a person named, or to his order, or to the bearer. A common form of a note is the following:

$100. Albany, June 9, 1859.