§ 858. This class of bailment, which is called commodatum in the Roman law, and is denominated by Sir William Jones a loan for use (prêt à usage), is the gratuitous lending of an article 1 to the borrower for his own use. If the use be paid for, it becomes a different species of bailment, and therefore the lending must be gratuitous. So, also, it must be lent for use, and the use must be the principal object; for, otherwise, it may be either a pawn or a deposit. The identical property lent must, also, be returned, together with its increment and gain. And herein it differs from a mutuum, or loan for consumption, where the thing lent is to be returned in kind.2 The borrower, however, is not responsible for loss or deterioration from such use as was contemplated by the parties. But for all injury arising from his default he is responsible.3
1 The law of bailments does not apply to the loan of a building for a mere temporary use. Williams v. Jones, 3 H. & C. 256; ib. 602.
2 Thus, corn sent to a miller to be ground in the ordinary course of his business, is a mutuum, and not a bailment requiring the return of the identical article; but a return of an equal quantity and quality is sufficient. South Australian Ins. Co. v. Randell, 6 Moore, P. C. (n. s.) 341 (1869). And see Norton v. Woodruff, 2 Comst. 153; Chase v. Washburn, 1 Ohio St. 214; Mallory v. Willis, 4 Comst. 76; Foster v. Pettibone, 3 Seld. 433; Pierce v. Schenck, 3 Hill, 28, 31, note; Wadsworth v. Allcott, 2 Seld. 64. Many of these cases expressly, and some impliedly, overrule Seymour v. Brown, 19 Johns. 44.
3 Story on Bailm. § 268; Dig. Lib. 13, tit. 6, 1. 23; 1 Domat, B. 1, tit. 5, § 2, art. 6, 12; Bayliss v. Fisher, 7 Bing. 153; Peake, 49; Murray v. Burling, 10 Johns. 172; Gibbs v. Chase, 10 Mass. 125; Wheelock v. Wheelwright, 5 Mass. 104; Bowman v. Teall, 23 Wend. 306; Todd v. Figley, 7 Watts, 542. See Scranton v. Baxter, 4 Sandf. 5; Phillips v. Coudon, 14 I11. 84.
§ 859. A borrower has no special property in the thing lent; although his possession is sufficient to enable him to maintain an action of trespass or trover against a wrong-doer.1 In a gratuitous loan the use is strictly personal, unless the circumstances under which it is made indicate a different intention; as, if a man lend another his carriage and horses for a month, it would be ordinarily presumed that he intended to allow the use of them to the family of the borrower, but not to strangers. But if a horse be lent, the presumption would be, that the bailee himself was alone entitled to use it.2 So, also, the use is to be limited by the terms of the agreement; and if a horse be lent to a person to ride to a particular place, he will not thereby acquire a right to ride to a further or different place.3
§ 860. Inasmuch as the bailment is for the exclusive benefit of the borrower, he is bound to exercise great diligence in relation thereto, and is responsible for slight neglect. Yet if the lender be aware of any incapacity, ignorance, or unskilful-ness on the part of the borrower, he cannot claim damages for a loss resulting from such a degree of carelessness as would be presumable from such known incapacity. Thus, if a delicate piece of machinery be lent to a person who is known by the lender to be unskilful and unacquainted with its use, he cannot be required to exercise the skill of an experienced workman. The degree of diligence which the borrower is bound to exercise is therefore proportionate to his known skill and ability, and must depend on the circumstances of each case. Negligence will not be necessarily presumed from the fact that the article bailed is stolen; but such negligence must be proved.4
1 Nicolls v. Bastard, 2 C. M. & R. 659; Burton v. Hughes, 2 Bing. 173; Ogle v. Atkinson, 5 Taunt. 759; Hurd v. West, 7 Cow. 752; Armory v. Delamirie, 1 Str. 505; 2 Black. Comm. 453; Story on Bailm. § 93, 94,150, 152, 280; 2 Kent, Comm. 573; Little v. Fossett, 34 Me. 545.
2 Bringloe v. Morrice, 1 Mod. 210; 3 Salk. 271; Scranton v. Baxter, 4 Sandf. 8.
3 Wheelock v. Wheelwright, 5 Mass. 104; Jones on Bailm. 68; Pothier, Prêt à Usage, n. 2, 22; Isaack v. Clark, 2 Bulst. 306; Story on Bailm. § 231,, 232, 254, 390, 409, 413.
4 Story on Bailm. § 237-239; Jones on Bailm. 64, 56, 66; Vaughan v. Menlove, 3 Bing. N. C. 468, 475; Coggs v. Bernard, 2 Ld. Raym. 909;
§ 861. Where the borrower has exercised the greatest diligence, he is not liable for losses from inevitable accident, or from external and irrepressible external violence; as, for instance, losses by fire, shipwreck, lightning, pirates, robbers, mobs, and the fraud of strangers; against which he could not guard, and which occur without his default. But if he might have prevented such loss by greater diligence, he will be responsible. Thus, if a man drive a borrowed horse late at night over a dark and dangerous road, he will be liable for any injury which the horse may receive; because he might have prevented such an injury by proper precautions. So, also, if a man stand his borrowed horse under a ruinous shed, and it fall and maim the horse, he is responsible; unless the fall were occasioned by tempest, or inevitable accident, which would have overthrown a strong shed. So, also, if the borrower be guilty of fraud, he is responsible for all injuries and losses, whether arising from his negligence or not.1
§ 862. The question has been much discussed, whether, in case of fire, a borrower is bound to save the borrowed goods first, and in preference to his own. Pothier and Sir William Jones think that the borrowed article should be first saved; because the borrower is bound to the strictest diligence in the preservation of it, and nothing will excuse him but vis major.2 But the better opinion seems to be, that the ordinary rule of diligence is applicable to this case, as well as to others; and that a borrower is only bound to show that he was not guilty of negligence; for he is not bound to make every sacrifice; and if his own goods were much more valuable, he would be justified in saving them first.3
§ 863. The rights of the parties to this contract may be varied by a special agreement, and then they would be extended or restricted by the terms thereof. Thus, if a person, on making a loan, should affix to it a certain value, and say, that he should hold the borrower responsible for such a sum if the article were injured or destroyed, the borrower would be bound to pay that sum if the article were lost.1
2 Kent, Comm. 574, 575; Pothier, Prêt à Usage, n. 49; Niblett v. White, 7 La. 253; Eastman v. Sanborn, 3 Allen, 594; Wood v. McClure, 7 Ind. 155; Bennett v. O'Brien, 37 I11. 250; Carpenter v. Branch, 13 Vt. 161.
1 Pothier, Prêt à Usage, n. 55, 56, 57; Jones on Bailm. 67, 68, 69; 2 Kent, Comm. lect. 40, p. 576; Story on Bailm. § 242, 243.
2 Jones on Bailm. 69, 70; Pothier, Prêt à Usage, n. 58. In ease of deposit, Pothier holds a different rule. Pothier, Traitê de Dêpôt, n. 29.
3 Jones on Bailm. 65; Story on Bailm. § 245-251; 2 Kent, Comm. 575.
§ 864. The borrower must adhere to the terms and conditions of the loan; and if he violate them, or exceed what would be fairly inferred to be the intention of the lender, he is responsible for all losses resulting therefrom, whether they be inevitable or not. Thus, if, by his own default, he detain the article after it is demanded, or after he agreed to return it, and it be destroyed by fire, he is liable for it.2 But the borrower may, under certain circumstances, be not only justified in retaining the bailment, but even may be bound to retain it beyond the time within which he promised to return it. Thus, if the returning of it be accompanied with great risk and danger thereto, and he, notwithstanding, undertake to return it, he will be liable for any loss or injury that may occur. So, also, he may retain it beyond the agreed time, for the purpose of preventing a crime.3 A bailee or borrower of property cannot set up title in himself without restoring the property to the bailor.4
§ 865. The ordinary expenses incurred in the use of the bailment must be paid by the borrower. As, if a horse be lent, the borrower must pay for his feed and shoeing. But the lender must bear all extraordinary expenses which may be incurred; as, if the horse fall sick, the borrower may reclaim the money necessarily expended in curing him.6
§ 866. The lender is bound not to interfere with the borrower, or impede his use of the bailment, under the peril of damages. He is also bound to give him notice of any defect known to him6 in the article lent; and if he do not, and in consequence thereof an injury ensue, he is responsible there for. So, also, if the borrower lose the bailment, and pay the value of it to the lender, and afterwards, upon finding it, return it to the lender, the lender is bound either to surrender to the borrower the article itself, or its value.1
1 Story on Bailm. § 252, 253, 253 a.
2 Story on Bailm. § 254; 2 Kent, Comm. 575 6; Pothier, Prêt Usàge, n. 59; Booth v. Terrell, 16 Ga. 25. See Clapp v. Nelson, 12 Tex. 373.
3 Story on Bailm. § 263; Pothier, Prêt à Usage, n. 42.
4 Simpson v. Wrenn, 50 I11. 224 (1869); Story on Bailm. § 266.
5 Story on Bailm. § 256, 273.
6 Blakemore v. Bristol & Exeter Railway Co., 8 El. & B. 1050. Otherwise not, MacCarthy v. Young, 6H. & N. 329 (1861).
§ 867. Except under special contract, the loan is determined by the death of the lender or borrower; or by the change of estate, as by marriage.
1 Story on Bailm. § 271, 275, 276; Pothier, Prêt à Usage, n. 78, 84.