liable to be controlled by the custom of the trade. (a) According to the French law, if the mechanic was to furnish the materials, and the thing accidentally perished before completion and delivery, he bears the loss both of the materials and of his work; but if the materials were furnished by the employer, and the workman furnished only his skill and labor, and the article was destroyed without fault, and before it was finished, the one loses the materials and the other his labor. (b) The Civil Code of Louisiana follows, in this respect, the rule in the French code. (c) The reason of the distinction is, that, in the one case, the employer is the owner of the article or subject with which the labor is incorporated; and, in the other case, the workman is the owner. The principle is still the same. Res perit domino. (d)

Mr. Justice Story (e) subdivides this head of Locatio into 1. Locatio operis faciendi, or hire of labor and services. 2. Locatio custodia, or receving goods on deposit for hire. He includes under the last head, agisters of cattle, warehousemen, and wharfingers; and to these may be added, a class of bailees known in this country by the term of forwarding men, or mer

(a) Menetone v. Athawes, 3 Burr. Rep. 1592. Gillett v. Mawman, 1 Taunt. Rep. 137. Story on Bailment, § 441. But if the mechanic was by contract to complete the work before payment for a specific sum, and the employer to furnish the materials, and when the work was nearly finished the same be destroyed by an accidental fire, no compensation is recoverable, for the contract is entire, and performance is a condition precedent. But without a contract postponing the payment to the completion of the work, the workmen would be entitled to a pro rata payment. 3 Burr. sup. Story on Bailment, § 426. Brumby v. Smith, 3 Ala. Rep. N. S. 123, where A. contracted with B. to build a house on A.'s land, and A. to furnish the materials, and the builder to be paid when the house was finished. It was burnt down by accident when nearly completed, and the builder was held entitled to the value of his labor, on the maxim that A. was owner of the materials and the structure, and res perit domino. Wilson v. Knott, 3 Humph. Tenn. R. 473. So when a manufacturer agrees to construct an article out of his own materials, the property remains with him until completed and delivered. It would be the same if the manufacturer furnished the principal part of the materials, but if the employer furnished the whole or principal part of the materials, he would retain the property during the performance of the work. Gregory v. Stryker, 2 Denio, 628.

(b) Civil Code, Nos. 1788, 1789, 1790. 2 Pardessus, Droit Com. p. 2, tit. 7, art.

526.

(c) Civil Code of Louisiana, art. 2731. Seguin v. Debon, 3 Martin's Louis. Rep. 6. (d) Story's Com. § 438.

(e) Ibid. § 422.

chants. They are all responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent, unless the business and duty of carriers be attached to their other character. (a) * But INNKEEPERS form an exception to the general rule, and they are held responsible to as strict and severe an extent as common carriers; and the principle was taken from the Roman law, and adopted into modern jurisprudence. (b)

592

(3.) The responsibility of an INNKEEPER for the horse or goods of his guest, whom he receives and accommodates for hire, has been a point of much discussion in the books. In general, he is responsible at common law for the acts of his domestics, and for thefts, and is bound to take all due care of the goods and baggage of his guests deposited in his house, or intrusted to the care of his family or servants, without subtraction or loss day and night. He is said to be chargeable on the ground of the profit which he receives for entertaining his guests. (c) The custody of the goods of his guest is part and parcel of the contract to feed, lodge, and accommodate the guest for a suitable reward. (d)

(a) Cailiff v. Danvers, Peake's N. P. Rep. 114. Finucane v. Small, 1 Esp. N. P. Rep. 315. Garside . Trent Navigation Co. 4 Term Rep. 581. Sidaways v. Todd, 2 Starkie's N. P. Rep. 400. Platt v. Hibbard, 7 Cowen's Rep. 497. Brown v. Dennison, 2 Wendell's Rep. 593. Schmidt v. Blood, 9 Wend. Rep. 268. Streeter v. Horlock, 1 Bing. Rep. 34. Roberts v. Turner, 12 Johns. Rep. 232. Story's Com. § 442-456. See also supra, p. 600, n. d.

(b) Dig. 4, 9. The edict of the prætor included shipmasters, innkeepers, and stable-keepers in the same severe but wise and wholesome responsibility. See infra, vol. iii. p. 7, note a, where the edict is specially noticed. Mr. Justice Story has given a general view of the responsibility of innkeepers in the civil law and in the law of those nations of Europe which have adopted it. Story on Bailments, § 464–469.

(c) Morse v. Slue, 1 Vent. Rep. 238. Lane v. Cotton, 12 Mod. 483, 487. Towson v. Havre-de-Grace Bank, 6 Harr. & Johns. 47.

(d) Holt, Ch. J., 12 Mod. Rep. 487. Grinnell v. Cook, 3 Hill's Rep. 485. An innkeeper cannot lawfully refuse to receive guests to the extent of his reasonable accommodations; nor can he impose unreasonable terms upon them. Bennett v. Mellor, 5 Term Rep. 274. Thompson v. Lacy, 3 B. & Ald. 285. Hawthorn v. Hammond, 1 Carr. & Kirwan, 404. And as a compensation for the innkeeper's responsibility, the better opinion is, that he has a lien on all the goods of his guest at the inn, for all his expenses there. Story on Bailments, § 476. Lord Kenyon and Ashhurst, J., in Kirkman v. Shawcross, 6 Term Rep. 14. Grinnell v. Cook, supra. But the innkeeper is not responsible in that character for goods left in his custody,

In Calye's case, (a) it was decided, upon the authority of the original writ in the register, (and which Lord Coke said was the ground of the common law on the subject,) that if a guest came to an inn, and directed that his horse be put to pasture, and the horse was stolen, the innkeeper was not responsible, in his character of innkeeper, for the loss of the horse. However, it was agreed in that case, that if the owner had not directed that the horse be put to pasture, and the innkeeper had done it of his own accord, he would be responsible.

Perhaps this rule might admit of some limitations; for if the putting the traveller's horse to pasture in the summer season, or leaving the carriage in an open shed in the street, be the *593 usual custom, as it is in many parts of this country, the consent or direction of the owner to that effect might be fairly presumed. (b)

It was laid down in the same case in Coke, that the innkeeper was bound absolutely to keep safe the goods of his guest deposited within the inn, and whether the guest acquainted the innkeeper that the goods were there, or did not; and that he would in every event be bound to pay for the goods if stolen, unless they were stolen by a servant or companion of the guest. The responsibility of the innkeeper extends to all his servants and domestics, and to all the movable goods and chattels and

unless the owner be his guest, by either having been there, or intending to go there in that capacity. He must be either actually or constructively the innkeeper's guest. Id.1

(a) 8 Co. 32.

(b) Story's Com. § 478. If the traveller directs his horse to be put into the stable, and says nothing about his gig, and it be left in the highway with other carriages, and is stolen, the innkeeper has been held liable, under the implied promise to take the gig infra hospitium. Jones v. Tyler, 3 Neville & Manning's Rep. 576. '1 Adolph. & Ellis, 522, S. C. This was carrying the protection of the inn sufficiently far.

1 Purchasing liquor at an inn is sufficient to constitute one a guest. McDonald e. Edgerton, 5 Barb. S. C. Rep. 560. In Dickinson v. Winchester, 4 Cush. 114, it was held that, where an innkeeper engaged to take travellers "free," from the station to his hotel, and had made arrangements with hackmen for that purpose, he was liable for a trunk lost on the way. The relation of innkeeper and guest ceases when the latter has paid his bill and leaves the house with the declared intention of not returning. Wintermute . Clark, 5 Sandf. S. C. 242. See a learned examination of this subject in McDaniels v. Robinson, 26 Vt. 316, and note, per Redfield, C. J.

moneys of his guest which are placed within the inn, (infra hospitium;) but it does not extend to trespasses committed upon the person of the guest, nor does it extend to loss occasioned by inevitable casualty, or by superior force, as robbery. (a) It is no excuse for the innkeeper, that he was, at the time the goods of his guest were lost, sick or insane, for he is bound to provide careful servants. (b) In Bennett v. Mellor, (c) the responsibility of innkeepers was laid down with great strictness, and even with severity. The plaintiff's servant came to an inn to deposit some goods for a week. The proposal was rejected, and the servant sat down in the inn as a guest, with the goods placed behind him, and very shortly thereafter they were stolen. It was held, that the innkeeper was liable for the goods; for the servant was entitled to protection for his goods during the time he continued in the inn as a guest. It was not necessary that the goods should have been in the special keeping of the innkeeper, in order to make him liable; if they be in the inn, that is sufficient to charge him. It is not necessary to 594 prove negligence in the innkeeper; for it is his duty to provide honest servants, according to the confidence reposed in him by the public; (d) and he ought to answer civilly for their

*

(a) Calye's case, ub. sup. Morse v. Slue, 1 Vent. Rep. 190, 238. Kent v. Shuckard, 2 B. & Adol. 803. Story's Com. § 471-473. But from the case of Mason v. Thompson, and from the dictum of Bailey, J., in Richmond v. Smith, 8 B. & Cress. 9, it would seem that innkeepers were responsible, like common carriers, for robbery and burglary. Story on Bailments, § 472. If a horse, chaise, and harness be delivered to an innkeeper, the payment for the horse includes a compensation for keeping the chaise and harness, and he is liable as an innkeeper for the loss of them. Mason v. Thompson, 9 Pick. Rep. 280. This last case was questioned and overruled in Grinnell v. Cook, 3 Hill's Rep. 485, so far as it went to hold the innkeeper in that character responsible for the goods of a person who was not at the inn, and did not intend to go there as a guest, and therefore was no guest.

(b) Calye's case, ub sup. Cross v. Andrews, Cro. Eliz. 622.

(c) 5 Term Rep. 274.

(d) If the goods of a guest be deposited in a public inn, and be lost or injured, the prima facie presumption is, that the loss was occasioned by the negligence of the innkeeper or his servants, but the presumption may be rebutted. Dawson v. Chamney, 5 Adol. & Ellis, N. S. 164.1

1 See also Merritt v. Claghorn, 23 Vt. 177. Metcalf v. Hess, 14 Ill. 129. Kisten v. Hildebrand, 9 B. Mon. 72. McDaniels v. Robinson, 26 Vt. 316. But a stricter liability was imposed in Shaw v. Berry, 31 Me. 478. Mateer v. Brown, 1 Cal. 221. Sibley v. Aldrich,

acts, even if they should rob the guests who sleep under his roof. An innkeeper, like a common carrier, is an insurer of the goods of his guests, and he can only limit his liability by express agreement or notice. (a)1 Rigorous as this law may seem, and hard as it may actually be in some instances, it is, as Sir William Jones observes, founded on the principle of public utility, to which all private considerations ought to yield. Travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innkeepers; and it would be almost impossible for them, in any given case, to make out proof of fraud or negligence in the landlord. The Roman prætor held innkeepers responsible for the goods of their guests, on the same principle of public utility. It was necessary, says Ulpian, in commenting on the edict of the prætor, to confide largely in the honesty of such men; and if they were not held very strictly to their duty, they might yield to the temptation to commit a breach of trust. They were bound to answer for all losses and damages happening even without their default, unless they were fatal losses, occurring from vis major or irresistible force. (b)

The responsibility of innkeepers, to the full extent of the English law, has been recognized in the courts of justice in this country. (c) Thus, in Quinton v. Courtney, (d) the innkeeper was held liable for money stolen out of the saddle-bags of the guest, which he had delivered to the servant without informing him, or his master, that there was money in them. And * 595 in Clute v. Wiggins, (e) the innkeeper was held responsi

(a) Richmond v. Smith, 8 Barn. & Cress. 9.
(b) Dig. 4, 9, 1, 3. Jones on Bailment, 95, 96.
(c) Mason v. Thompson, 9 Pick. 280.

(d) 1 Haywood's N. C. Rep. 40.

(e) 14 Johns. Rep. 175. Newson v. Axon, 1 M'Cord's Rep. 509, and Piper v. Manny, 21 Wendell, 282, contain a recognition of the same principle.

33 N. H. 553, where the subject is examined at length. Negligence on the part of the guest will discharge the innkeeper. Armistead v. White, 6 Eng. L. & Eq. 349. Chamberlain v. Masterson, 26 Ala. 371.

1 In Simon v. Miller, 7 Louis. Ann. 360, it was held that an innkeeper is responsible only for usual and ordinary baggage, and not for unknown treasure belonging to the traveller. See also Mateer v. Brown, 1 Cal. 221. But this relaxation of the innkeeper's liability was not admitted in Berkshire Woollen Co. v. Proctor, 7 Cush. 417.