PART IV

BAILMENTS

=225. Bailment Defined.= A _bailment_ has been defined to be "A

delivery of goods for the execution of a special object, beneficial to

the bailor, the bailee or both, upon a contract express or implied, to

carry out this object, and dispose of the property in conformity with

the purpose of the trust." It is the giving possession of personal

property to another for the purpose of having the property cared for,

improved or used, with the understanding that when the purpose of the

delivery is fulfilled, the property shall be returned to the bailor or

disposed of according to his directions.

A bailment differs from a sale in that the title to the property

remains in the bailor, and possession is given the bailee, while in

a sale, the title or ownership of the property is transferred to

the purchaser, while possession may remain in the seller. Bailment

is a broad subject covering many transactions. Loans, pledges, and

deliveries of property of every nature, in which mere possession is

given another without transfer of title are included. If _A_ leaves his

watch with _B_, a jeweler, for repairs, the transaction is a bailment.

If _A_ delivers property to _B_, a transportation company, to be

conveyed to _C_, the transaction is a bailment. If _A_ loans his knife

to _B_, the transaction is a bailment.

=226. Parties to a Bailment Contract.= There are two parties to a

bailment contract. The one who gives possession of chattel property to

another, reserving title to himself, is called the _bailor_, and the

one who receives possession of the property under these conditions is

called the _bailee_. A bailment is a contract. Parties to a bailment

must be competent to contract. (See _Competency of Parties_, chapter on

Contracts.) Parties under legal age may avoid contracts of bailment.

If _A_, fifteen years of age, hires a horse from _B_, a liveryman, for

one hour for $2.00, _B_ cannot compel _A_ to carry out his contract if

_A_ objects on the ground of infancy. But if _A_ injures the horse he

is liable in damages to _B_. An infant is liable for his torts, but not

for his contracts.

=227. Classification of Bailments.= Bailments are usually divided

into three classes; bailments for the sole benefit of the bailor,

bailments for the sole benefit of the bailee, and bailments for the

benefit of both the bailor and bailee. A common example of a bailment

for the sole benefit of the bailor is a delivery of property to the

bailee, to be kept by the bailee gratuitously for the accommodation

of the bailor, or delivery of property to the bailee to have work

performed on it, without compensation to the bailee. Examples of

bailments for the sole benefit of the bailee are loans to the bailee

without compensation to the bailor. Bailments for the mutual benefit of

bailor and bailee include deliveries of property to carriers, pledges,

renting property, or hiring the bailee to perform work on the property

bailed, or hiring the bailee to care for the property.

=228. Elements of a Contract of Bailment.= It is sometimes said that

a bailment for the sole benefit of the bailor is not a contract by

reason of there being no consideration. A consideration may consist

of any benefit to the party making a promise, or any detriment to the

one to whom the promise is made. The giving up of the property bailed

to the bailee is considered a detriment to the bailor, even though the

bailee receives no benefit. For a transaction to constitute a bailment,

there must be a delivery of the property bailed to the bailee, and

an acceptance by him of the property. This delivery may be actual or

constructive, as by delivery of a warehouse receipt, or a bill of

lading. The delivery must be sufficient to enable the bailee to secure

the possession of the goods, and to control the possession during the

period to be covered by the bailment, to the exclusion of the bailor.

The property must be in existence to be bailed. A contract of bailment

need not be express; it may be implied as well--a thief or a finder of

property is a bailee for the true owner.

=229. Title to Property Bailed.= The title to property bailed does

not pass to the bailee. Mere possession passes to the bailee. It is not

necessary that the bailor have title to the property to bail it. If

he has right of possession he may, under certain circumstances, bail

it. _A_ may rent a livery stable, including horses and carriages, of

_B_, for three years, with the understanding that he will operate the

business in the usual way. _A_ does not have title to the horses and

carriages, but he may hire them to _C_, or to anyone he chooses. This

transaction with _C_ constitutes a bailment, in which the bailor does

not have title to the property bailed. He has, however, sufficient

right of possession to enter into a bailment contract. The principal

distinction between a bailment and a sale of personal property is

that, in the latter case, title passes to the purchaser regardless of

change of possession of the property, while in the case of a bailment,

possession of the property must pass to the bailee, while title is not

disturbed.

=230. Bailments for the Sole Benefit of the Bailor.= Where personal

property is deposited with another for safe keeping, or for the purpose

of having work performed on it, without compensation to the bailee,

the transaction is called a bailment for the sole benefit of the

bailor. The liability of a bailor for the loss or injury of property

intrusted to his care, depends upon the nature of the property itself,

and upon whether the bailee receives compensation for his services.

Three degrees of care and negligence, respectively, are recognized in

bailments; slight, ordinary and great care, and gross, ordinary and

slight negligence. What constitutes ordinary care or negligence is

determined by considering what a man of ordinary prudence would do

under the circumstances in question. Any case of negligence above or

below this standard constitutes great care or gross negligence. If

_A_, in going to lunch, leaves his umbrella in _B's_ office, and the

umbrella is stolen, _B_ is not liable to _A_, if he exercised slight

care. If _A_, a lawyer, is obliged to go to police court to try a

criminal case, and leaves his diamond pin with _B_, a brother attorney,

_B_ is obliged to exercise only slight care, as in the case of the

umbrella, and is liable only for gross negligence. But slight care

means a much greater degree of care in case of the diamond pin than in

the case of the umbrella. In case of a bailment for the sole benefit of

the bailor, the bailee is obliged to exercise only slight care, and is

liable only for gross negligence. He receives no compensation for the

service, and for this reason is not obliged to exercise a great degree

of care. Property cared for gratuitously for the accommodation of the

bailor, or to be carried to some place, or to have something done to it

gratuitously, constitutes this class of bailments.

=231. Bailments for Sole Benefit of Bailee.= Property loaned to a

bailee for the latter's accommodation constitutes a bailment for the

sole benefit of the bailee. _A_ borrows _B's_ horse to drive to _Y_.

_A_ pays _B_ nothing for the use of the horse. _A_ must exercise

great care in the use of the horse, and is liable to _B_ for slight

negligence. It is no defense, in case the horse is injured while in

_A's_ possession, that _A_ acted as an ordinarily prudent man would act

under the circumstances. He must act as an ordinarily prudent man would

act when exercising great care. If, from the circumstances connected

with the injury to the horse, it is determined that an ordinarily

prudent man would have been guilty of slight negligence in the method

of handling the horse or causing the injury, _A_ is liable to _B_ for

the injury to the horse.

A court said on this point, "A bailee who is a borrower must use

extraordinary care to protect the property loaned to him, and is

responsible for the slightest neglect. He must exercise all the care

and diligence that most careful persons exercise in the transaction of

their own affairs."

If the bailee uses the property for any purpose other than that for

which it was bailed, or if he exceeds the authority of the bailor in

the use of the property, he is liable for injuries resulting. For

example, _A_ borrowed _B's_ oxen to plow up a hedge. _A_ used the oxen

to draw a load of stone. A stone rolled off the cart and injured one of

the oxen. _A_ was held liable for the injury.

=232. Bailments for Benefit of Both Bailor and Bailee.= The majority

of bailments are for the benefit of both bailor and bailee. This class

of bailments includes the hiring of personal property. _A_ rents _B's_

automobile for three hours, at three dollars an hour. This is an

example of this class of bailments. This class also includes pledges

or pawns of goods. If _A_ pledges ten shares of stock in a corporation

to his bank for a loan, this transaction constitutes this form of

bailment. This also includes the hiring of a bailee to carry goods

from one place to another. The most common example of this class of

bailments is that of common carriers. For example, _A_ employs _B_,

an express company, to carry a package of jewelry from Cleveland

to Chicago. The bailment is for the mutual benefit of both _A_ and

_B_. Any case in which one party employs another to carry goods from

one place to another for compensation is included in this class of

bailments, and is discussed more at length in the chapter on Common

Carriers.

Hiring a person to care for personal property for compensation is

included in the class of mutual benefit bailments. A traveling salesman

leaving his trunk and satchel with a hotel-keeper is a common example.

Where one person hires another to perform work or services on the thing

bailed, the transaction constitutes a mutual benefit bailment. For

example, if _A_ leaves his overcoat with _B_, his tailor, to be cleaned

and pressed, the transaction constitutes this form of bailment. In

mutual benefit bailments the bailee has the right to use the property

bailed only for the purposes of the bailment. If _A_ rents _B's_

automobile, he is entitled to use it during the period covered by the

contract. If he rents it for a particular designated trip, he cannot

use it for any other trip. In a mutual benefit bailment, when the

bailee hires out the use of a chattel, there is an implied contract on

his part that the chattel is fit for the purpose for which it is to

be used, and that it may safely be used for such purposes. _A_ rents

_B's_ naphtha launch for the purpose of taking a lake ride. _B_ has

carelessly supplied the wrong fuel. An explosion results, injuring

_A_. _B_ is liable for the injury. In mutual benefit bailments, the

bailee is obliged to exercise ordinary care, and is liable for ordinary

negligence.

The bailee must act as an ordinarily prudent man would act under the

same conditions in protecting and caring for the property. _A_ rents a

typewriter of _B_. If the typewriter breaks or gets out of order during

ordinary usage, _B_ must stand the loss. If the parties to a bailment

of this class specifically contract as to who shall bear the loss in

case of accident, or as to the degree of care which shall be exercised,

these express stipulations prevail.

=233. Warehousemen and Storage Companies.= A person who keeps a

place for the storage of goods for a compensation is a warehouseman

or storage-keeper. In a few states, public warehouses are provided

for by statute. In these states, the statutes define the duties and

liabilities of warehousemen. These public warehousemen are generally

required to take all goods offered for storage, no matter who the owner

may be, if the goods are in condition to be stored and if the storage

charges are tendered.

Most warehouses operate their business as private enterprises. A few

states provide by statute for public warehouses. Private warehousemen

may select their customers. They are not required to accept goods for

storage if they do not so desire. The government provides warehouses

for the storage of goods upon which customs or duties are to be paid.

These warehouses are private enterprises authorized by the government

to act as government warehouses. The government requires a bond of

these warehousemen for the protection of itself, but the government is

in no way responsible for the warehouseman's treatment of the goods, or

for breaches of contracts between the warehousemen and their customers.

Warehousemen commonly issue receipts for goods stored with them. These

warehouse receipts ordinarily are made payable to the customer's order,

and may be negotiated. They are not generally recognized as negotiable

instruments. A few states have statutes making them negotiable

instruments, but outside these jurisdictions, warehouse receipts are

merely evidences of ownership of the property. The purchaser takes the

same right to the property which the original bailor had, with the

additional right to sue the transferor if the title proves defective.

A warehouseman has a lien on the property for his charges. The

warehouseman or storage-keeper must exercise ordinary care in the

protection of the property. The bailor must reveal to the bailee

the character of the goods stored. If the goods are of a dangerous

character and injury results, the bailor is responsible to the bailee

for damages, if he has failed to reveal the dangerous character of the

goods.

=234. Degree of Care Required of Bailee.= A bailee of property is

required to exercise a certain degree of care in the use, preservation

and protection of the property placed in his possession, and is liable

for a certain degree of negligence. The amount of care a bailee is

obliged to exercise, and the amount of negligence for which he is

liable, depends upon the kind of property bailed, and whether the

bailment is for the sole benefit of the bailor, the bailee, or for

the mutual benefit of both the bailor and the bailee. If the property

bailed is of great value, or so delicate that it is easily lost,

destroyed or injured, a greater degree of care is required on the part

of the bailee than if the property is of little value, or is of such a

nature that it is not easily damaged, lost or destroyed.

If _A_, with _B's_ permission, stores his wagon in _B's_ barn, and the

wagon is stolen, _B_ is not liable unless he was grossly negligent.

He was not paid for the bailment, and was obliged to exercise only

slight care in the protection of the wagon. If, however, _A_ leaves his

watch with _B_ while he attends a ball game, and the watch is stolen,

_B_ must have exercised greater care than in the case of the wagon by

reason of the value and nature of the property bailed. Otherwise, he

will be liable. In this case as well as in the case of the wagon, _B_

received no compensation for the bailment, and is obliged to exercise

only slight care in the protection of the property bailed, and is

liable only for gross negligence. What constitutes slight care and

gross negligence differs materially in the case of the wagon and in the

case of the watch.

In connection with bailments, care is said to have three degrees,

_great_, _ordinary_ and _slight_. Negligence is also said to have

three degrees, _gross_, _ordinary_ and _slight_. Ordinary care or

negligence is the standard for testing each case. After ordinary care

or negligence is determined, slight or great care, and slight or gross

negligence is determined by ascertaining whether the care or negligence

is above or below ordinary. Any care greater than ordinary is great

care; any care less than ordinary is slight care. Any negligence

greater than ordinary is gross negligence. Any negligence less than

ordinary is slight negligence. If a person takes such precautions

in the use, preservation, and protection of the property as an

ordinarily prudent person would take of his own property under similar

circumstances, he is said to exercise ordinary care. The degree of care

required of a bailee depends upon the kind of a bailment in question,

as well as upon the kinds of property bailed.

If the bailment is for the sole benefit of the bailor, the bailee

receiving no compensation for his inconvenience and work, he is

required to exercise only slight care, and is liable only for gross

negligence. If the bailment is for the sole benefit of the bailee, the

bailor receiving no compensation for his inconvenience and the loss of

the use of his property, the bailee is required to exercise great care

in the use and preservation of the property, and is liable for slight

negligence. In case of mutual benefit bailments, the bailee is obliged

to exercise ordinary care in the use and protection of the property,

and is liable for ordinary negligence. Two classes of mutual benefit

bailees, innkeepers and common carriers, do not come within the above

rule. These are known as _exceptional mutual benefit bailments_, and

are discussed under separate chapters.

=235. Rights of Bailee as Against Bailor.= A bailee has the right to

keep the property, to use it according to the terms of the contract of

bailment, and to defend this right even against the bailor himself.

While the title to the property in question remains in the bailor,

the right of possession during the period covered by the contract of

bailment is in the bailee. He may retain possession of the property for

the purpose of the bailment. A bailee is entitled to use the property

bailed, and is restricted only by the limitations of the contract. If

the bailee uses this property in a way not authorized by the contract

of bailment, he is liable in damages to the bailee.

Where a mutual benefit bailment requires the bailee to use skill in

connection with the property bailed, the bailor must exercise a degree

of skill ordinarily used by persons who perform similar work. If the

bailee fails to use this degree of skill, he is liable in damages

to the bailor. For example, if _A_ leaves his horse with _B_, a

blacksmith, to be shod, and _B_ attempts the work, but performs it so

unskillfully, or carelessly that the horse is injured or lamed thereby,

_B_ is liable to _A_ for the damage caused.

=236. Rights of Bailee as Against Third Persons.= A bailee has the

right to keep the property bailed as against third persons who endeavor

to interfere with his possession. The bailee is not permitted to

dispute the title of the bailor for his own benefit. If, however, the

property is taken away from the bailee by action at law, by one whose

title is superior to that of the bailor, the bailee is relieved from

liability to the bailor. In this event, the one who has the paramount

title coupled with the right of immediate possession, may take the

property from the bailee. If the bailee yields possession to one whose

right of possession and title are inferior to the bailor's, the bailee

is answerable to the bailor for any losses sustained. The bailee cannot

confer good title upon anyone to whom he attempts to sell the property

bailed, even though the purchaser buys without notice of the bailment.

Anyone who injures the property while it is in the possession of the

bailee is responsible either to the bailor or bailee for the damages.

=237. Lien of Bailee.= A bailee who has performed work on the article

bailed, for which he is to be paid a consideration, is said to have

a _lien_ for the value of the work performed, or materials furnished.

By a lien is meant the right of the bailee to retain possession until

the value of his labor or material has been received. At common law,

a livery stable keeper had no lien upon horses fed and cared for. By

statute in most states, livery stable keepers now have a lien upon

horses left with them. If a bailee is employed to perform work or labor

upon personal property, and the property is destroyed without fault

of the bailee after part of the work has been performed, the bailee

may recover for the amount of work performed and materials furnished,

unless the contract of bailment is to the effect that the entire job is

to be completed before any payment is made.

A bailee loses his lien by parting with possession of the property.

At common law, a bailee could not sell the property to enforce his

lien. By statute in most states, the bailee is permitted to sell the

property, by giving notice of the time and place of sale to the bailor,

or by foreclosing his lien by a legal action.

PLEDGES

=238. Pledge Defined.= A _pledge_ is one form of a mutual benefit

bailment. It is a deposit of personal property by a debtor with a

creditor as security for a debt, the title to the property remaining

in the debtor until the property is disposed of by the creditor in

accordance with the express or implied agreement of pledge. A pledge

differs from a chattel mortgage in that possession of personal property

is given a creditor for the purpose of securing a debt, the title

remaining in the debtor. In case of a chattel mortgage, the title to

the personal property passes to the mortgagee, who is the creditor,

subject to revesting in the mortgagor, who is the debtor, in case of

payment of the mortgage debt. In a chattel mortgage, possession of the

property generally remains in the debtor.

_A_ owes _B_ $100.00. He gives _B_ possession of a diamond ring as

security for the debt. If _A_ does not pay the $100.00 when due, _B_

may retain possession of the ring until he receives $100.00 from _A_,

or he may sell the ring at public sale, advising _A_ of the time and

place of sale. If the ring sells for more than $100.00, _B_ must pay

_A_ the excess of $100.00.

Pledges form an important part of present day business. Pledges of

bonds, stocks and negotiable paper are common in transactions with

banks. Banks commonly make loans, taking a promissory note secured by

a pledge of stocks, bonds, negotiable instruments, or other personal

property. Their loans are commonly called loans on _collateral_ or

loans on _collateral security_.

=239. Parties to a Pledge.= A pledge of chattel property is a

contract express or implied. The party giving the property as security

to his creditors is called the _pledgor_, the party receiving the

property is called the _pledgee_. Like any contract, it requires

competent parties. (See _Competency of Parties_, chapter on Contracts.)

A person mentally insufficient, intoxicated, or an infant, is not

competent to make a contract. An infant's contracts of pledge, like any

of its contracts are voidable, but not void. The infant may carry out

the contract if he chooses. An infant's contracts are not illegal. They

cannot be enforced against an infant, however, if he objects by reason

of infancy. A competent party, contracting with an infant, cannot

void his contract on the ground of infancy of the other contracting

party. Most contracts of pledge are implied. If _A_ owes _B_ $10.00 and

gives _B_ his watch as security, _B_ impliedly has the right to retain

possession of the watch until _A_ pays him $10.00. _B_ also has the

right after _A_ fails to pay him the $10.00 when due, to sell the watch

at public auction, and apply as much of the proceeds as is necessary to

the payment of his debt. In most pledges of importance where securities

are pledged, the contract of pledge is reduced to writing, and a

stipulation is made giving the pledgee the right to sell the property

at public or private sale without notice to the pledger, and permitting

the pledgee himself to be a purchaser at the sale. No matter what the

contract of pledge provides, the sale should be public, notice of which

should be advertised, and notice of the time and place should be given

the pledgor.

=240. Personal Property Which May Be Pledged.= Any kind of personal

property which is the subject of transfer may be pledged. This includes

personal property having a tangible existence, as well as that which is

intangible. That is, choses in action as well as choses in possession

may be pledged. A promissory note, a certificate of stock, or a bond

which is an evidence of something tangible or the right to obtain

something tangible, is the subject of a pledge, as well as furniture,

jewelry and other tangible personal property. Property which has no

active or potential existence is not the subject of a pledge. A person

cannot pledge a horse which he expects to purchase, or a crop which he

expects to grow on the land of another. A person may, however, pledge a

growing crop.

=241. The Debt Secured.= A pledge or delivery of personal property is

for the purpose of securing a debt owing the pledgee. The existence of

a debt is one of the essential elements to a valid pledge. A delivery

of personal property to another in the absence of a debt may constitute

a bailment for the sole benefit of the bailor, the bailee, or for the

mutual benefit of both parties. To constitute a pledge, however, there

must be a debt owing the pledgee, and the property must be delivered

to him, and accepted by him as security for the debt. The debt must be

legal, and must be supported by a sufficient consideration to support

the contract of pledge.

_A_ won $50.00 at cards from _B_. _B_ gave _A_ his watch as security

for the debt. _B_ was permitted to recover possession of his watch

from _A_ by legal action, since the gambling transaction was illegal.

_B_ did not legally owe _A_ $50.00. An illegal debt cannot support a

contract of pledge. If, for any reason, the debt is not owing or is not

valid, it will not support a contract of pledge.

=242. Title to Property Pledged.= The legal title or ownership of

personal property pledged remains in the debtor or pledgor. A right of

possession is given the pledgee. This is sometimes called a _special

property_. A pledge differs from a sale in that, in a sale, the title

or ownership of the personal property passes to the purchaser, while

the possession may remain in the seller. In a pledge, however, the

possession passes to the pledgee or creditor, while the title remains

in the pledgor or debtor. A pledge differs from a chattel mortgage in

that, in the latter, the title passes to the creditor or mortgagee,

subject to revesting in the mortgagee or debtor, upon the latter's

paying the mortgage debt.

There is probably one exception to the rule that title to property

pledged does not pass to the pledgee, and that is in case of negotiable

instruments. A negotiable instrument endorsed in blank, or made

payable to bearer passes like currency by delivery. A pledge of such

paper passes title to the pledgee. A pledge of negotiable paper not

endorsed in blank, or not payable to bearer should be made by proper

endorsement. In this event title passes to the pledgee. The title

is revested in the pledgor by proper indorsement, or by delivery, if

the instrument is transferable by delivery, when the debt secured is

paid. A pledgee of negotiable paper, who takes it before it is due

without notice of defenses, is an innocent purchaser for value without

notice, and as such, is entitled to the rights of an innocent purchaser

for value without notice. (See _Innocent Purchaser for Value Without

Notice_, chapter on Negotiable Instruments.)

=243. Collateral Securities.= Loans by banks are frequently made on

collateral securities. This means that the borrower gives a bank a

promissory note for the amount, and pledges personal property to secure

the note. The contract of pledge may be by separate written instrument,

or it may be made a part of the note itself. Where made a part of the

note, the note is called a _collateral note_. (See _Collateral Note_,

chapter on Negotiable Instruments.) Any kind of property which is

the subject of a pledge may be used as collateral security. Stocks,

bonds, and even commercial paper are commonly used. Jewelry, bills of

lading, and warehouse receipts are not infrequently used in this kind

of a pledge. Collateral security given as security for a promissory

note or other negotiable instrument is a pledge. The rules governing

ordinary pledges govern this kind of pledge as well. The only practical

distinction between a collateral loan and an ordinary loan is that, in

a collateral loan, the debt is evidenced by a negotiable instrument

which is secured by a pledge of personal property.

=244. Rights and Duties of Pledgor and Pledgee.= A pledgor has the

right to have his pledged property returned to him upon payment of

the debt secured by the pledge. He also has the right to have the

property carefully preserved and cared for while in the possession

of the pledgee. The pledgee is entitled to retain possession of the

property pledged until the debt owing him is paid. He may re-pledge

the property if he so desires. If the pledged property is negotiable

paper, the pledgee must collect the paper as it falls due, and observe

all the requirements necessary to preserve the rights of the pledgor.

If the property pledged is tangible personal property, the pledgee

must use the care of an ordinarily prudent man in the preservation and

protection of it. He is not permitted to use property which may be

injured by use, and should not use the property except to the extent

that it is necessary for its preservation. If the pledgee sells or

transfers the debt secured, the purchaser is entitled to the benefit

of the pledge. That is, if _A_ owes _B_ $500.00 and pledges five shares

of stock to _B_ as security for the debt, and _B_ sells the debt to

_C_, _C_ is entitled to the benefits of the pledged certificates of

stock. If _B_ gives _C_ possession of the stock, _C_ may retain the

same until he receives the $500.00 from _A_. If _B_ does not turn over

the shares of stock to _C_, _C_ may bring an action to compel the

transfer of possession to him.

=245. Disposal of Property by Pledgee After Default.= If the pledgor

fails to pay the debt secured when due, the pledgee has the right to

enforce his pledge. In the absence of any special agreement, the law

impliedly gives the pledgee the right to sell the property at public

sale, and apply as much of the proceeds of the pledged property as is

necessary to the payment of his debt. This sale must be public. The

pledgee must first notify the pledgor that he is in default of payment,

and of his intention to sell the property, giving the time and place

of the proposed sale. The pledgee cannot be a purchaser at the sale,

unless so permitted by express stipulation in the contract of pledge.

Many contracts of pledge are in writing, by the terms of which the

pledgor waives notice of default and of time and place of sale, and

permits the pledgee to sell at private sale, and to become a purchaser

at the sale. When a pledgee is given the right to purchase by the

contract of pledge, he cannot make a valid purchase without advertising

the property, and without exerting himself reasonably to obtain the

greatest amount possible for the pledged property at the sale.

In selling pledged property, notice of default should be given the

debtor. He should also be notified of the time and place of sale. The

sale should be advertised publicly, and should be public. The pledgee

cannot himself purchase the property unless the contract of pledge

expressly so provides. Even in this event, the sale will not be held

valid unless it is public and fair in every way to the interests of the

pledgor. A pledgee is permitted in some states to sell according to

certain statutory methods provided. A pledgee may sell by foreclosing

his lien in equity. This means by filing a written request in a court

of equity to sell the property. In this event, the sale is conducted by

order of court.

=246. Redemption.= A pledgor has the right to obtain possession of

the property pledged, by paying the debt secured at any time before

actual sale of the property. A pledgor sometimes agrees by the contract

of pledge, to waive the right to redeem the property after default of

payment of the debt secured. Courts will not enforce such a provision

of the agreement against him. The pledgor is permitted to redeem the

property by paying or tendering the amount of the debt at any time

before sale of the pledged property. If the pledgor is in default of

payment, however, and agrees by separate agreement, made subsequently

to the contract of pledge, that the pledgee may keep the property

pledged in satisfaction of the debt, he is bound by this agreement.

MORTGAGES OF PERSONAL PROPERTY

=247. Mortgages of Personal Property Defined.= By _mortgage_ of

personal property, is meant the transfer of title to personal property

by a debtor to a creditor; the possession of the property usually

remaining in the debtor, and the transfer being made for the purpose of

giving the creditor security for the debt, the debtor having the right

to secure a return of title to the property by paying the debt within

a stipulated time. It is a conditional sale. It is not absolutely

necessary that possession of property which is the subject of a chattel

mortgage, remain in the debtor. Possession may be given the creditor

with the understanding that possession and title are to revest in the

debtor when the latter pays the debt secured. As a matter of business

practice, however, possession of personal property which is the subject

of a chattel mortgage, remains in the debtor, the creditor taking the

title as security for the debt, with the right to secure possession

or sell the property in case the debtor fails to pay the debt secured

when due. When possession of personal property is given a creditor

as security for a debt, the transaction is usually in the form of a

pledge. In a pledge, title remains in the debtor, but possession is

given the creditor. The distinguishing features of a sale, bailment or

pledge, and a mortgage of personal property are important. In a sale

of personal property title passes to the purchaser, while possession

usually remains in the seller until the purchase price is paid. In a

pledge, which is a form of a bailment, title remains in the bailor, and

possession only is given the bailee or creditor. In case of a chattel

mortgage, possession remains in the debtor, while title passes to the

creditor subject to revesting in the debtor upon payment of the debt

secured. The debtor, or person giving the mortgage, is called the

_mortgagor_, the creditor, or person receiving the mortgage, is called

_mortgagee_.

[Illustration: IN THE PRIVATE OFFICE OF THE GENERAL MANAGER OF THE S.

OBERMAYER CO., CINCINNATI, OHIO]

=248. What Kinds of Personal Property May Be Mortgaged.= The rule is

usually stated as follows: Any interest in personal property which

may be the subject of a present sale may be mortgaged. Any tangible

personal property such as furniture, horses, cattle and clothing,

as well as intangible personal property, such as promissory notes,

contracts, and shares of stock may be mortgaged. It is not necessary

that the mortgagor have absolute, unencumbered title to the property

to give a mortgage. An owner may give several mortgages on the same

property. He may mortgage his interest as long as any remains. If _A_

owns a stock of goods worth $10,000, he may give successive mortgages

to different creditors to whom he is indebted. He must practice no

fraud, however. He must make each mortgage subject to the prior ones,

and must reveal the facts to the creditor taking the mortgage. But he

is permitted to mortgage his remaining interest.

=249. A Mortgage of Personal Property as Security for a Debt.= A

mortgage of personal property is a contract, and must be supported

by a consideration. Mortgages are usually given to secure loans of

money. They may, however, be given to secure any kind of obligation.

A mortgage of personal property may be given to secure advances of

money to be made in the future, as well as present or past advances or

obligations. It is usually held that a past indebtedness is sufficient

consideration to support a mortgage, as to all persons, except one who

may have been defrauded out of the property mortgaged.

=250. Form of Mortgages of Personal Property.= To constitute a

transaction a chattel mortgage, there must be an agreement by which

title to personal property is transferred to a creditor upon condition

that it is to revest in the debtor upon the latter paying a certain

sum of money, or fulfilling an obligation, within a certain time.

As between the mortgagor and mortgagee themselves, an oral chattel

mortgage is binding, unless within the provisions of the Statute of

Frauds. (See _Statute of Frauds_, chapter on Sales.) Most states

provide that contracts for the sale of personal property involving

more than $50.00 must be in writing to be enforceable. This provision

applies to chattel mortgages. If possession of the mortgaged personal

property is given the mortgagee under an oral mortgage, the

transaction is binding, not only between the parties thereto, but as to

third persons as well. Most states provide by statute that as against

third persons who purchase the property, or as against creditors of the

mortgagor, the chattel mortgage must be in writing, and be recorded

or filed with a public official, in case possession of the mortgaged

property is left with the mortgagor. This question is discussed more at

length in the following section.

=251. Filing and Recording Mortgages of Personal Property.= Most

states have statutes providing that chattel mortgages must be filed or

recorded with a designated public official to be effective as against

creditors, subsequent purchasers or mortgagees. This requires that the

mortgage be in writing, and be deposited or recorded according to the

provisions of the statute with the designated public official. For

example, if _A_ orally mortgages his horse to _B_ to secure a loan of

$40.00, the mortgage may be binding between _A_ and _B_, but if _C_,

a creditor of _A_, secures a judgment against _A_ and levies on the

horse, his levy is superior to _B's_ mortgage. If _A_ sells the horse

to _D_, who has no notice of the mortgage to _B_, _D's_ rights to the

horse are superior to _B's_. If _A_ gives a mortgage in writing to _E_,

who records his mortgage according to statute, his rights to the horse

are superior to _B's_. The statutes of the different states require

these mortgages to be refiled at stated intervals. Most states require

them to be refiled each year. Some require them to be refiled only

every three years.

=252. Rights of Mortgagor in Property Mortgaged.= A mortgage of

personal property ordinarily contains a stipulation that the mortgagor

shall retain possession until after default of payment of the mortgage

debt. Some states have statutory provisions giving the mortgagor the

right of possession of the mortgaged property before default of payment

of the mortgage debt. It is the custom at the present time to give the

mortgagor possession of the property before default. If a mortgagor

having possession of the property has it stored on his own behalf, and

the warehouseman acquires a lien on the goods for his charges, his lien

is inferior to the mortgage. The same is true if a mechanic acquires a

lien for repairs upon the property.

A mortgagor may mortgage his interest in the personal property by

giving a second mortgage. The second mortgagee takes the mortgagor's

right to have the property revest in him upon payment of the debt

secured by the first mortgage. A mortgagor may sell his interest in the

property, subject to the interest of the mortgagee. If the mortgage

stipulates that a mortgagor cannot sell his interest, this stipulation

is binding. A mortgagor has the right to pay the debt secured, and by

this means to have the title to the property revest in him.

=253. Rights and Liabilities of Mortgagee.= A mortgagee of personal

property has a conditional title to the property. If the mortgagor does

not pay the debt secured, according to the terms of the mortgage the

mortgagee has the right to seize the property or at least to subject

it to the satisfaction of his debt. The mortgagee has the right to

sell the debt secured by the mortgage. In the absence of an express

stipulation to the contrary, a transfer by a mortgagee of the debt

secured by the mortgage, transfers the mortgage. An assignment of a

chattel mortgage apart from the debt secured, passes no interest to

the transferee. A mortgagee has the right to seize the property upon

default of payment of the debt secured, if the mortgage contains a

stipulation to that effect. The mortgagee has the right to foreclose

his lien. By this is meant that he has the right to file a petition in

a court of equity asking that the property be sold, and that his claim

be paid from the proceeds first, and that the mortgagor's right to

pay the debt and secure a return of the property be cut off. This is

discussed under the section on _foreclosure_.

=254. Mortgagor's Right of Redemption.= In law, a mortgage is regarded

as a security for a debt, rather than as a transfer of property. By a

chattel mortgage, a transfer of title to personal property is made by a

debtor to a creditor as security for a debt. The debtor has the right,

however, to secure a return of the title to the property by paying the

mortgage indebtedness according to the terms of the mortgage. When the

debtor fails to pay the debt when it is due, absolute title to the

property vests in the mortgagee or creditor. The law, however, permits

the debtor or mortgagor to pay the debt at any time before actual sale

of the property by the mortgagee, together with interest and expenses,

and thus secure the title to the mortgaged property. This is known as

the _mortgagor's equity of redemption_.

Legal title is vested absolutely in the mortgagee upon failure of the

mortgagor to pay the mortgage debt when due. The mortgagor, however,

is permitted to pay the debt with expenses at any time before sale of

the property, and by this means to secure a return of the title to

the property. This makes a mortgage of personal property in effect a

security for a debt, rather than a transfer of title. The purpose of

the law is to give the creditor or mortgagee the right to secure the

payment of his debt out of the mortgaged property, and nothing more.

Most states have statutes providing a method by which a mortgagor may

obtain his equity of redemption. Where there are no statutes, this

right must be enforced by a petition in a court of equity.

=255. Mortgagee's Right of Foreclosure.= Equity permits the mortgagor

to recover the mortgaged property by filing a petition in a court of

equity, even after he has defaulted in paying the mortgage debt, by

tendering the amount due, together with interest and expenses. This

right of the mortgagor may be cut off by an equitable right enforced

on the part of the creditor or mortgagee. This right is called the

_mortgagee's right of foreclosure_. When the debtor or mortgagor is in

default, the creditor or mortgagee is permitted to file a petition in a

court of equity, setting forth the fact, and asking the court to order

the property to be sold, the expenses to be paid, the mortgage debt to

be satisfied, and the balance of the proceeds of the sale to be paid to

the debtor or mortgagor. After this proceeding has been resorted to and

completed, the debtor cannot enforce his equity of redemption.

The common method afforded a mortgagee of foreclosing a mortgagor's

equity of redemption is by the petition in equity above described. Many

of the states have provided statutory methods which may be followed.

Some mortgages by express stipulation give the creditor or mortgagee

the right to seize the property and sell same upon default of the

debtor to pay. This takes the place of an equitable foreclosure. When

a mortgage contains a power of sale stipulation, the mortgagee may

seize the property when the mortgagor defaults, and sell the same at

public sale. The excess recovered over the mortgage debt and expenses,

must be paid the mortgagor. If possession of the property cannot be

obtained peaceably, the mortgagee must bring an action in replevin,

by which possession is obtained by an officer of the court. In some

jurisdictions, a mortgagee is permitted to seize and sell mortgaged

property upon default of the debtor, even though the mortgage contains

no power of sale stipulation. The sale must be _bona fide_ and public,

or it can be set aside at the instance of the defrauded mortgagor.

CARRIERS

=256. Carriers Defined.= _Carrier_ is the term applied to individuals

or companies engaged generally or specially in carrying goods or

passengers from place to place. The business of carriers has grown

rapidly with the development of this country. The business of

steamboat, railway, express, and electric package companies forms an

important part of present day affairs. Carriers are usually classified

as _common_ or _private_. Both common and private carriers may carry

either passengers or goods. Carriers of passengers are discussed in a

separate chapter.

=257. Common Carriers of Goods.= A common carrier of goods is one who

represents himself as engaged in the business of carrying goods from

place to place for anyone who desires to employ him. A common carrier

of goods is liable as an insurer of the goods. By reason of this

exceptional liability attaching to a common carrier, it is important to

know who are common carriers. Everyone who carries goods from place to

place is not a common carrier. To constitute a person a common carrier,

there must be a representation on his part of a willingness to carry

goods belonging to anyone who desires to employ him for that purpose.

A common carrier need not necessarily hold himself out as willing to

carry all classes of goods. He may limit his business to carrying a

peculiar class of goods, and still be a common carrier. It may be

stated as a rule that anyone who holds himself out as willing to carry

goods of any person is a common carrier. Common examples of common

carriers are railroad companies, express companies, public transfer

companies, and electric package companies. An express company, in

holding itself out as willing to carry goods of any person, is a common

carrier.

If persons carry goods only on special contract, and choose their

customers, they are private carriers, and are not liable as insurers of

the goods entrusted to their care. Anyone may engage in the business

of a private carrier, and so long as he does not hold himself out

as a common carrier, he cannot be compelled to accept for carriage

goods against his will, neither is he liable as an insurer of the

goods. A private carrier is an ordinary bailee. If he agrees to carry

for compensation, he must exercise ordinary care, and is liable for

ordinary negligence. The business of a common carrier is said to be one

of the exceptional mutual benefit bailments. The exceptional liability

of a common carrier is discussed under a separate section.

=258. Implied Liability of a Common Carrier.= In early days when

pirates infested the seas and stagecoach robberies were common, it

was an easy matter for a common carrier to conspire with robbers and

thieves, in unjustly depriving the owner of the goods entrusted to the

carrier's care. By reason of the opportunity given a common carrier

fraudulently to deprive a shipper of his goods, the law at an early

time placed the exceptional liability of an insurer upon a common

carrier. The relation between a shipper and a carrier, after goods are

placed in the hands of the carrier, is one of mutual benefit bailment.

The liability of a common carrier, however, is not limited to the

liability of an ordinary mutual benefit bailee. Common carriers and

innkeepers are said to be _exceptional mutual benefit bailees_. This

exceptional liability is placed on them by reason of the opportunity

given them fraudulently to deprive the owners of their goods, and to

compel the carriers to protect the goods against robbery and theft.

A common carrier is liable as an insurer of the goods entrusted to his

care. He cannot avoid liability by acting as an ordinarily prudent man

would act under the circumstances in protecting and caring for the

goods, but he must actually protect them or be liable to the owner for

their loss or damage. There are a few exceptions discussed under a

separate section. If _A_ employs _B_ to keep, feed, and care for his

horse for six months, for fifty dollars, and _B_ puts the horse in his

stable, where it is stolen, together with _B's_ own horse, _B_ is not

liable to _A_ for the loss of the horse, if he acted as an ordinarily

prudent man would act under the same conditions. If, however, _A_

delivers his horse to _B_, a railroad company, to be shipped from

Buffalo to Chicago, and the horse is stolen from _B's_ possession, _B_

must pay _A_ the value of the horse. He is not permitted to say that he

exercised ordinary care in the protection of the horse. This is what

is meant by the exceptional liability of a common carrier. While the

reason for this exceptional liability of a common carrier has largely

passed away by the practical extermination of highway robbers and

pirates, the exceptional liability of common carriers remains as a

part of the law. This exceptional liability is not a matter of express

contract between the shipper and the carrier, but is impliedly a part

of the contract.

=259. Exceptions to the Liability of a Common Carrier as an Insurer.=

A common carrier of goods is not absolutely liable as an insurer of

the goods entrusted to his care. If the goods are lost, injured, or

destroyed by an Act of God, by a public enemy, by negligence of the

shipper, by the inherent nature of the goods, or by the exercise of

public authority, the carrier is not liable as an insurer.

By _Act of God_ is meant an inevitable act arising without the

intervention or aid of a human agency. A loss of goods by a storm,

by lightning, or by earthquake is an example. If the goods are lost

or injured as a result of any act of the shipper, the carrier is not

liable as an insurer. A carrier is permitted to adopt and enforce

reasonable regulations relating to the packing and shipment of goods.

If the shipper negligently packs goods so that they are injured by

reason thereof, the carrier is not liable as an insurer. If the shipper

improperly addresses packages, and they are lost by reason thereof, the

carrier is not liable as an insurer. If the shipper accompanies live

stock, and injury occurs by reason of the carelessness of the shipper,

the carrier is not liable as an insurer.

By _public enemy_ is meant a power at war with a nation. This includes

pirates. Mere insurrections, robberies, thefts, mobs, and strikes are

not included in this class of public enemies. If a loss of goods occurs

by means of public enemy, a carrier is not liable as an insurer of the

goods. If the loss occurs through the _inherent nature of the goods_,

without the negligence of the carrier, the latter is not liable as

an insurer. For example, if fruit spoils as a result of warm or cold

weather, if the carrier is not in any way at fault, he is not liable as

an insurer, since the loss occurs on account of inherent defects of the

goods. If animals injure themselves while in the carrier's possession

by reason of their viciousness, or fright, which injury could not have

been prevented by reasonable care on the part of the carrier, the

latter is not responsible.

If the goods are lost or injured by reason of the _exercise of public

authority_, the carrier is not liable as an insurer. If the goods,

while in the possession of the carrier are seized upon attachment, or

by levy on execution by the creditors of the shipper, the carrier is

not liable if he promptly notifies the shipper.

=260. Limiting Common Law Liability by Special Contract.= The common

law liability of a common carrier of goods is that of an insurer. It

matters not how the loss or injury occurs, whether without, or through

the carelessness of the carrier, the latter is liable for the loss, if

it does not come within the recognized exceptions. Carriers commonly

endeavor to limit their exceptional liability by making a special

contract with a shipper, by the terms of which the carrier limits his

exceptional liability in case of loss.

There is considerable conflict of authorities between the different

states as to whether a carrier may limit his exceptional liability

at all by special contract. Where permitted to limit this liability,

there is considerable controversy as to the extent to which a carrier

may limit his liability by special contract. The courts of most

jurisdictions agree that a common carrier cannot limit his exceptional

liability by special contract as to his own negligence or the

negligence of his servants. This special contract by which a common

carrier limits his exceptional liability as an insurer is usually in

the form of a written contract signed by the shipper or in the form of

stipulations in the bill of lading given to the shipper and called to

his attention.

If a carrier accepts a carload of hay for shipment, without limiting

his common law liability by special contract, and the hay is destroyed

by fire, the carrier must respond in damages for the loss, regardless

of his negligence. If, however, the carrier enters into a special

contract with the shipper to the effect that the carrier shall not

be liable for loss by fire, and the hay is destroyed by fire without

negligence of the carrier or his agents or servants, the carrier is not

liable in damages.

=261. Limiting Common Law Liability by an Agreed Valuation.= Common

carriers frequently attempt to limit their liability for loss or injury

to goods by stipulations in a bill of lading, that in case of loss, the

valuation shall not exceed $50.00, or some specified amount. If the

shipper does not notify the carrier that the valuation is a greater

amount, the amount mentioned in the bill of lading is the valuation

fixed by special contract. In case of loss there is a great variety

of holdings as to whether a carrier may limit his liabilities to the

amount mentioned in the contract. Probably the courts in the majority

of cases hold that such a stipulation is valid in case of losses

arising not by reason of the negligence of the carrier or his agents.

The courts of a few jurisdictions hold that the stipulation as to

valuation is good even as against the negligence of the carrier or his

agent.

So far as interstate shipments are concerned, the question is settled

by the Federal Interstate Commerce Act of 1906. This act provides that

as to shipments from one state to another, such a stipulation is not

valid. The language of the Interstate Commerce Act relative to this

question is as follows:

A common carrier receiving property for interstate transportation

shall issue a receipt or bill of lading therefor, and be liable to

the holder for any loss, damage or injury to the property, and no

contract, receipt, etc., shall exempt the carrier from the liability

thereby imposed.

At present, so far as interstate shipments are concerned, a common

carrier cannot limit his common law liability by a special contract.

=262. Bills of Lading and Shipping Receipts.= _Bill of lading_, or

_shipping receipt_ is the term applied to the receipt given a shipper

by a carrier, when goods are delivered into the latter's possession. A

bill of lading serves two purposes. It is a receipt of the shipper from

the carrier for the goods delivered to the latter, and it is a contract

representing the agreement between the shipper and the carrier. It is

usually held that the terms printed on the bill of lading are binding

on the shipper, even though the bill is not signed by him. A bill of

lading represents the title to the goods. It may be transferred like a

negotiable instrument. A purchaser takes the position of the shipper.

A bill of lading is negotiable in the sense that it represents title

or ownership of the goods, and in the sense that a purchaser takes the

right of the shipper in the goods. But it is not negotiable in the

sense that a purchaser takes a better position than the original holder

had.

=263. Title to Goods After Delivery to Common Carrier.= In the absence

of special agreement to the contrary, where a party in one town

purchases goods from a party in another, the goods to be delivered by

common carrier, title to the goods passes to the purchaser when the

goods are delivered to the carrier properly packed and addressed. This

kind of a sale is commonly called a sale _F. O. B._ place of purchase,

"F. O. B." means "free on board." Careful business people, in making

sales or purchases, specify whether the goods are to be F. O. B.

place of shipment, or F. O. B. place of delivery. If the sale is F. O.

B. place of delivery, title does not pass to the purchaser until the

goods are delivered at the place specified. If the goods are lost by

the carrier, the loss falls on the shipper or carrier, and not on the

purchaser. If goods are shipped F. O. B. place of shipment, or if no

agreement is made about shipment or payment of freight, title passes

to the purchaser when the goods are properly delivered to the carrier.

If the goods are lost, the loss falls on the carrier or purchaser, and

not on the seller. Where no stipulation is made relative to payment

of freight or carrier's charges, the law presumes that the purchaser

is to pay the carrier's charges. Sales are sometimes made in which it

is specified that the freight charges are _to be allowed_. This means

that the shipper is to pay the carrier the freight charges. If the

goods are lost, the loss falls on the purchaser. If there is an express

stipulation that the goods are to be delivered at the place of delivery

by the seller, this means that title does not pass to the buyer until

the delivery is made at that place, and the shipper or seller stands

the risk of loss in transit.

=264. Duty of Common Carrier to Accept Goods for Carriage.= A

common carrier of goods holds himself out to the public as ready to

carry the goods of anyone who desires to employ him. The carrier

may demand payment of reasonable charges in advance. He may also

enforce reasonable regulations relating to the packing, delivery, and

addressing of goods. Carriers are not obliged to carry goods other

than the kinds they purport to carry. For example, an express company

representing itself to the public as a carrier of light packages cannot

be forced to accept heavy machinery for carriage. A carrier cannot be

compelled to accept goods not belonging to the class it represents

itself as being in the business of carrying. But a carrier must accept

for carriage goods of the class it purports to carry, no matter by

whom tendered. If the bill of lading offered by the carrier contains

stipulations not agreeable to the shipper, the latter may demand the

carrier to carry the goods under the terms of the implied common law

liability of a carrier. The carrier is excused from accepting goods in

the event of a great and unexpected bulk of business. He must, however,

furnish sufficient equipment to meet the general requirements of

business.

=265. Stoppage in Transitu.= Where goods sold on credit have been

delivered to a carrier, if the vendor learns that the purchaser is

insolvent, he may order the carrier to withhold delivery of the goods.

This is called _stoppage in transitu_. This question is also discussed

in the chapter on sales. The vendor may compel the carrier to withhold

delivery of goods by giving him written or oral notice to that effect.

To be effective, this notice must be given before the carrier has

surrendered possession of the goods to the purchaser. If the carrier

delivers the goods to the purchaser after receiving notice from the

seller to withhold shipment, he is liable in damages to the seller.

If the purchaser has received possession of the bill of lading, and

has sold it to a _bona fide_ purchaser, as to the latter, the seller

cannot exercise the right of stoppage _in transitu_. If the carrier is

in doubt about who is entitled to possession of the goods, he may file

a petition with a court, called an _interpleader_, asking the court to

determine who is entitled to possession of the goods.

=266. Delivery of Goods by a Carrier.= The manner of delivery of goods

required of a common carrier, depends largely upon usage and custom.

In large cities, express companies and carriers of small packages

usually make deliveries to residences and places of business. In small

towns, and in the country they usually deliver at their depots or

store rooms only. Persons dealing with common carriers are bound by

their customs, and by reasonable regulations of the carriers. Carriers

by water and rail ordinarily deliver at their depots and warehouses

only. The purchaser is obliged to call for his goods. The carrier is

obliged to give the purchaser notice that the goods have arrived. If

the purchaser fails to call within a reasonable time thereafter, the

exceptional liability of a common carrier ceases, and the liability of

a warehouseman attaches. A warehouseman is obliged to exercise only

ordinary care in the protection of the goods, while a carrier is an

insurer of the goods.

If a carrier delivers goods to the wrong person, he is liable in

damages to the owner. If the consignee refuses to accept the goods, the

carrier should notify the shipper of this fact. The carrier's liability

then becomes that of a warehouseman.

Goods are frequently delivered to a carrier _C. O. D._ (collect

on delivery). A carrier, in this event, is required to collect a

specified amount from the purchaser before delivery. The purchaser

is entitled to inspect the goods. Title to goods sent C. O. D., is in

the purchaser, the possession only being reserved by the owner for the

purpose of collecting certain charges, ordinarily the purchase price.

=267. Charges and Lien of Common Carrier.= A common carrier usually

stipulates by special contract with a shipper the amount of charges for

carriage. In the absence of special contract, the carrier is entitled

to a reasonable amount for this service. The United States Congress has

the right to regulate charges for interstate carriage. The states may,

through their legislatures, regulate the rates within their respective

jurisdictions. A carrier has a lien on the goods carried for his

charges, and may retain possession of the goods until these charges are

paid.

=268. Discrimination by Common Carrier.= A common carrier represents

himself as willing to carry the goods of anyone who desires to employ

him. Business depends to a large degree upon the facilities offered by

carriers, notably by railroads. If certain business men or interests

are favored by carriers, competition in the same line is eventually

destroyed. For this reason, the law prohibited discrimination on

the part of a common carrier. All persons shipping under the same

conditions must be treated alike. The policy of the law is to promote

competition. There are cases which hold that a carrier is permitted

to charge one person a less rate than another, if the latter is not

charged an unreasonable rate. But this rule does not apply where the

parties are competitors and where the difference in rate charged is for

the purpose of destroying competition. The matter of discrimination

is now regulated largely by interstate commerce legislation discussed

under a separate section.

=269. Carriers of Mail.= The Constitution of the United States gives

Congress the power to establish postoffices and post roads. Under

this provision, the postoffice department has been created. It is a

department of the government. While the postoffice department carries

mail for compensation, it is a department of the government and not

a common carrier. The government cannot be sued without giving its

consent. It is an elementary principle that a government or sovereign

power cannot be sued by its citizens. If the mail is lost, the

government cannot be sued for damages. The government employs postal

clerks, postmasters and mail-carriers to operate the postal system.

These agents or servants of the government are required to give bond

to the government. If they violate their contract, or neglect their

duties, the government may collect its losses on these bonds. A

person whose mail is lost cannot sue a postoffice agent on his bond.

If, however, a person whose mail is lost can trace the loss to the

carelessness of a particular postmaster or mail-carrier, he may sue

such postmaster or carrier for damages sustained.

=270. Interstate Commerce Act.= The United States Constitution gives

Congress the power to regulate interstate commerce. The United States

Congress enacted interstate commerce regulations in 1887, 1889, 1891,

1895 and in 1906. The present United States interstate commerce

regulation is commonly known as the _Interstate Commerce Act of 1906_.

This act provides for an interstate commerce commission, consisting of

seven members. Each member receives a salary of $10,000 a year. The act

compels carriers engaged in interstate or foreign commerce to publish

a schedule of charges for carrying property. Carriers who give rebates

or offset, or discriminate between shippers in any way, are subject to

heavy fines, and the officers and agents are subject to imprisonment.

The commission is authorized to investigate the profits and charges of

carriers, and to fix the maximum and minimum rates for carriage as well

as the proportion of through rates to which each of several carriers

is entitled. Persons discriminated against may make complaints to the

commission. The commission may investigate these complaints as a court

by summoning witnesses, and by taking testimony. The commission may

award damages to the party injured. If the carrier refuses to comply

with the orders of the commission, the latter may invoke the machinery

of the United States courts to enforce its order. When matters are

removed to a United States court, the finding of the commission makes

out a _prima facie_ case.

Cyclopedia of Commerce, Accountancy, Business Administration, v. 03 (of 10) · 第 7 / 9 章