§ 889. The class of bailments denominated in the Roman law Locatio operis is, as we have seen, subdivided into two others: 1. Locatio operis faciendi; 2. Locatio operis mercium vehendarum.

§ 890. 1. Locatio operis faciendi. This class consists either of Locatio operis, which is the hire of labor and services; or of Locatio custodial, which is the custody of goods for a compensation. The undertaking of the former class is to do something, and of the second is to keep something. Bailees for hire of labor and services have a special property, sufficient to enable them to proceed in an action against wrong-doers.1 In the hire of things, the bailee pays the compensation; in the hire of labor and services, the bailor pays the compensation.

§ 891. In the first place, as to Locatio operis.2 The bailee of work for hire is bound to observe only ordinary diligence, and is responsible for ordinary negligence in respect to the custody of the bailment.3 He is also bound to exercise an ordinary degree of skill, in relation to the business which he undertakes; to do his work in a workmanlike manner; to warrant himself to be possessed of sufficient skill properly to execute it. If he perform the work negligently or unskilfully, he is responsible to his employer in damages.1 Spondet peri-tiam artis. Imperitia culpce adnumeratur. For it is his own fault, if he either make an engagement without sufficient skill to execute it, or if, possessing the adequate skill, he do not exert it.2 Thus, if a carpenter undertake to build a house, or a tailor to make a suit of clothes, or a farrier to cure a horse, - each is bound not only to perform his undertaking with ordinary skill, but also to have the skill requisite to perform it.3 So, also, the bailee is liable not only for misfeasance, but for non-feasance, if any loss or damage result to the bailor.4 So, also, if the work to be done is one requiring great skill and knowledge, the bailee cannot do it by a substitute, because the presumption is, that his individual knowledge and ability constitute the consideration of the contract. Thus, if an artist be engaged to paint a picture, he cannot turn the work over to one of his students.

1 Eaton v. Lynde, 15 Mass. 242; Barker v. Roberts, 8'Greenl. 101; Story on Bailm. § 422 a.

2 See "The Law of Contracts for Works and Services,1' by David Gibbons, Esq., for a careful statement of the general rules of law, and a collection of the principal cases on this subject.

3 Menetone v. Athawes, 3 Burr. 1592; Leek v. Maestaer, 1 Camp. 138; Gamber v. Wolaver, 1 Watts & Serg. 60; Foster v. Taylor, 2 Brev. 348.

§ 892. There is a distinction between cases where, 1st. the thing is to be oreated by a workman from his own materials, and 2d, where the workman furnishes materials and docs work on a thing already existing, and 3d, where the workman makes a new thing out of materials furnished by the owner. In the first case, the thing never becomes the property of the person for whom it is making, until it is completely finished and delivered; and, therefore, if it be destroyed before its completion and delivery, the workman must bear the loss.1 So, also, it is liable to be taken on execution by the creditors of the workman. In the second case, where the workman furnishes the materials for work to be done upon property belonging to his employer, the latter must bear not only the loss of the materials, but also the value of the work done thereupon.2 Where, therefore, a ship which was undergoing repairs was accidentally burnt, it was held that the shipwright was entitled to compensation for his work and labor, as well as for the materials furnished therefor by him previous to the loss.3 But in the third case, where an order is given to manufacture a specific article, erect a building on another's land,4 or to bring about a specific result, out of materials supplied by the orderer, and the contract is entire in its nature, if a loss occur before the whole contract is performed, the orderer loses his materials, and the workman his labor. Thus, if a man agree to make a coat, or to print a book, the price being to be paid on the completion of the job, the employer furnishing the cloth or paper, if any loss occur before the coat or printing is finished, the employer loses his materials and the workman his work.6 So, also, as the materials belong to the supplier, it follows that they are not liable to be levied on by any creditor of the manufacturer. Thus, where rags were delivered to a manufacturer to be made into paper, it was held, that trespass would lie against a creditor of the manufacturer for levying on the paper.6 A delivery of corn to a miller, to be ground in the ordinary course of business, is generally understood to be not a bailment, but a sale of the corn, or a mutuum, entitling the owner to an equal quantity of corn ground, but not of the identical article.1 If the contract be divisible in its nature, and contemplate a payment proportioned to the labor of the workman, and the payment is not conditional upon the whole performance of the agreement, the workman would be entitled to receive a compensation for his labor in case of loss.2 Where goods are to be manufactured out of the materials of the workman, and payment is to be made by certain instalments, payable at certain stages of the work, if, before the payment of the first instalment, the article be destroyed, the workman must bear the whole loss. If, between the payment of the different instalments, a loss occur, the workman loses the worth of his labor which is not already paid for, and the orderer loses the instalments he has made.3

1 Broom v. Davis, 7 East, 480, n.; Boorman v. Brown, 3 Q. B. 511; Money-penny v. Hartland, 2 C. & P. 378; Pothier, Contrat de Louage, n. 427; Traitê des Obligations, n. 163; Mondel v. Steel, 8 M. & W. 858; Seare v. Prentice, 8 East, 352; Gladwell v. Steggall, 5 Bing. N. C. 733.