If the workman, by a deviation from his instructions, makes his work of no use, he can claim no compensation. If the article be still of some use, and be received by the employer, the workman may claim pro tanto; but his claim is open to a set-off or cross-action for any demand the employer may have for damages sustained by the deviation. If the work be done by special contract, and there be a departure from its terms, the workman can recover nothing under the contract; but may on a quantum meruit, if his labor was useful to his employer, and its benefit accepted, but subject to set-off as before. And, undoubtedly, if the deviation be important, and the materials have been so used as to have lost their value as such, the employer may abandon them to the workman, and recover of him their value. So if the thing be left imperfect and unfinished, by the fault of the workman, he can recover nothing; but if not by his fault, then he should have compensation pro tanto, subject to set-off. And if the contract be rescinded by the act or assent * of both parties, then the workman may recover pro tanto. If the deviation be such as makes the thing more valuable and more costly, the workman cannot recover for this additional cost, unless the employer assented thereto. (c)

In this last case, and in some others, it is often important and difficult to determine what is an assent on the part of the employer, and what assent is sufficient. (d) Knowledge and silence might be considered so, if a knowledge of the deviation existed while it was going on, and the employer could put a stop to it. But not if only known afterwards, and when too late to prevent mined by authority. There is in the American Law Review, April, 1872, p. 464, an able and exhaustive discussion of the whole subject The conclusions of the writer agree substantially with those expressed in the text. He objects to Chase & others v. Washburne, 1 Ohio (N. S.), 144, opposing them, and refers to McPherson v. Gale, 40 Ill. 368, as agreeing with them.

(c) The principles stated above in our text are not peculiar to the contract of which we are now treating. They apply equally to several other species of contracts ; and we have already had occasion to consider them somewhat in our chapter on the Hiring of Persons. We shall defer their further consideration and the citation of cases until we come to our chapter on Construction.

(d) See Lovelock v. King, 1 Mood. & R: 60. See also ante, pp. * 56-58.

1S9 or arrest the alteration. It would certainly be safer and more just for the employer to signify his disapprobation as soon as possible; and his not doing so would be a circumstance, which, connected with others, as directing other alterations in conformity, and the like, might lead to an inference that he assented to and adopted the alteration.

Contracts for work and labor in making some article frequently contain a provision, that if there be alterations made with the assent of both parties, such alterations shall be paid for or allowed for at the same rate of payment as that provided by the contract for the work it specifies; and we think that such would be the operation of law, without an express stipulation. (e)

A workman employed to make up materials, or to alter or repair a specific article, has a lien upon the materials of the thing for his pay. (f) But this is merely a passive right •139 of * retainer, or, as it is sometimes called, a passive lien, and does not authorize a sale. There is some authority for the proposition, that where the retainer of the property involves considerable expenditure, and renders it entirely useless to both parties, the right of sale may exist, by local custom; (g) but it is well settled that such a lien does not in general authorize a sale. (h) And while equity will decree a sale in fulfilment of a pledge, it refuses in this case to grant relief to a bailee. (i) Tradesmen and mechanics generally have, by the common law of England and this country, a lien on chattels in their hands in the course of their business; and this lien and the rules of law applied to it, are considered in our chapter on Liens.

(e) See ante, p. *58, note (r). (f) M'Intyre v. Carver, 2 W. & S. 892. In this case it is decided that every bailee, who has by his labor and skill conferred value upon specific chattels bailed to him, has a particular lien on them; but such lien does not exist in favor of a journeyman or day-laborer. 60 in Morgan v. Congdon, 4 Comst. 561, it is held, that every bailee for hire, who by his labor or skill imparts additional value to the goods, has a lien thereon for his charges, there being no special contract inconsistent with such lien. And such lien extends to all the goods delivered under one contract, and is not confined to the particular portion on which the labor has been bestowed. Accordingly, where a quantity of logs was delivered on different days at the defendant's saw-mill, upon an agreement to saw the whole quantity into boards, and the defendant sawed a part of them, and delivered the boards to the bailor, without being paid for the service; it was held, that he had a lien for the amount of his account upon the residue of the logs in his possession. And the care, skill, and labor employed bv a trainer upon a race-horse give him a right of lien, but he waives this lien by contracting to allow the owner of the horse to take it for racing whenever he chooses. Forth v. Simpson, 13 Q. B. 680.

(g) Hostler's Case, Yelv. 66; Moss v. Townsend, 1 Bulstr. 207.

(h) Jones v. Thurlow, 8 Mod. 171; Chase v. Westmore, 6 M. & 8.180.

(i) Thames Iron Co. v. Patent Derrick Co. 1 Johns. & Hem. 93.

Warehousemen. This is also a contract for mutual benefit; and the bailee is therefore held only to ordinary diligence. (j)1 The forwarding merchants of this country are only subject to the liabilities of warehousemen, (k) unless they act also as

(j) Chenowith v. Dickinson, 8 B. Mod. 156; Foote v. Storrs, 2 Barb. 826; Hatchett v. Gibson, 18 Ala. 687; Cailiff. v. Danvers, Peake, Cat. 114; Platt v. Hibbard, 7 Cowen, 497; Knapp v. Curtis, 9 Wend. 60. But if an uncommon or unexpected danger arise, he must use efforts proportioned to the emergency to ward it off. Leek v. Maestaer, 1 Camp. 138. In this case the defendant was the proprietor of a dry-dock, the gates of which were burst open by an uncommonly high tide, and the plaintiff's ship, which was lying there, forced against another ship and injured. It was sworn, that with a sufficient number of hands the gates might have been shored up in time, so as to bear the pressure of the water; and, though the defendant offered to prove that they were in a perfectly sound state, Lord Ellenborougk held, that it was his duty to have had a sufficient number of men in the dock to take measures of precaution when the danger was approaching, and that he was clearly answerable for the effects of the deficiency. So a wharfinger who takes upon him the mooring and stationing of the vessels at his wharf, is liable for any accident occasioned by his negligent mooring. Wood v. Curling, 15 M. & W. 626; 8. c. 16 id. 628. - The same rule applies to an agister of cattle. Broadwater v. Blot, Holt, 547.