§ 883. In cases of Locatio rei, the letter is bound to make a delivery of the bailment, according to custom and usage, and to refrain from any interference or obstruction in regard to it, while the hirer is using it; or, otherwise, he violates his implied obligation. But in case of misuser, the bailor may determine the contract by peaceably retaking the bailment. However, if he cannot retake it peaceably, he must bring an action of trover; for he cannot use force.1 The bailor impliedly warrants his own title and right of possession; and is bound to keep the thing in suitable order and repair, for the purposes of the bailment; although the extent of the obligation of the letter to repair is not distinctly defined by judicial decisions, and is still open to controversy.2 So, also, he is bound to pay for all extraordinary expenses necessarily incurred, without his fault.3 The ordinary expenses, however, are at the expense of the hirer.4 The letter is also understood to warrant against all such faults and defects as would entirely prevent the contemplated use and enjoyment of the bailment, or render it dangerous, but not against those which diminish its convenience and appropriateness for the use intended.5
1 Story on Bailm. § 368. See various definitions there collected. 1 Bell, Comm. § 198, 255, 385, 451, 5th ed.; Wood, Inst. B. 3, ch. 5, p. 235. 2 Pothier, Contrat de Louage, n. 48-52; Story on Bailm. § 379.
§ 884. The hirer is bound to observe ordinary care and diligence, and is of course responsible only for ordinary negligence; the contract being for the mutual benefit of both parties.6 So, also, the hirer is not only liable for injuries and losses occasioned by his own default, but also for those occasioned by the default of all persons in his service, and acting under his directions,1 provided they be neither wilful nor malicious; for in such case he would not be responsible. Thus, if a valuable musical instrument be hired, and the servant of the bailee accidentally let it fall, or throw it down, so as to injure it, the bailee will be liable; but if the servant maliciously break it with a hammer, the servant will be solely liable.2 So, the master is liable for the acts of his servants done in the course of their employment, even though they are in disobedi-ence to the master's orders.3 But the bailee is responsible only
1 Wilkinson v. King, 2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; Youl v. Harbottle, Peake, 49; Rotch v. Hawes, 12 Pick. 136; Homer v. Thwing, 3 Pick. 492; Story on Bailm. § 396; 2 Salk. 655; Fouldes v. Wil-loughby, 8 M. & W. 540; Setzar v. Butler, 5 Ired. 212. See Trotter v. McCall, 26 Miss. 413.
2 Pomfret v. Ricroft, 1 Saund. 321, 323, and note 7; Cheetham v. Hamp-son, 4 T. R. 318; Roberts v. Wyatt, 2 Taunt. 268; Story on Bailm. § 392; Horsefall v. Mather, Holt, N. P. 7; 2 Kent, Comm. 586.
3 Pothier de Contrat de Louage, n. 77, 106, 107, 109, 131; Story on Bailm. § 384, 386-389; 2 Kent, Comm. 586; 1 Bell, Comm. 453, 5th ed.; Ersk. Inst. B. 3, tit. 1, § 23; Code of Louisiana, art. 2663, 2664, 2665. See Redding v. Hall, 1 Bibb, 536.
4 Handford v. Palmer, 2 Br. & B. 359; s. C. 5 Moore, 74; Story on Bailm. § 388, 393, 399.
5 Pothier, Contrat de Louage, n. 110; Code Civil de France, art. 1721; Code of Louisiana, art. 2665; Story on Bailm. § 390.
6 1 Dane, Abr. ch. 17, art. 12; Story on Bailm. § 398; 2 Kent, Comm. 586, 587, and note d; Dean v. Keate, 3 Camp. 4; Millon v. Salisbury, 13 Johns. 211; Handford v. Palmer, 2 Br. & B. 359; Platt v. Hibbard, 7 Cow. 497; Maynard v. Buck, 100 Mass. 40 (1868).
1 Sinclair v. Pearson, 7 N. H. 219.
2 Bray v. Mayne, Gow, 1; Dean v. Keate, 3 Camp. 4; Story on Bailm. § 400; Sinclair v. Pearson, 7 N. H. 219; 1 Bell, Coram, p. 455; 1 Black. Coram. 430, 431; Salem Bank v. Gloucester Bank, 17 Mass. 1; Jones on Bailm. 89; Randelson v. Murray, 3 Nev. & Per. 239; 8. c. 8 Ad. & El. 109; Bush v. Steinman, 1 Bos. & Pul. 409; Laugher v. Pointer, 5 B. & C. 547; Boson v. Sandford, 2 Salk. 440; Milligan v. Wedge, 12 Ad. & El. 737; Quarman v. Burnett, 6 M. & W. 499; Knight v. Fox, 5 Exch. 721; 1 Eng. Law & Eq. 477.
3 Railroad Co. v. Hanning, 15 Wall. 649 (1872); Philadelphia & Reading Railroad Co. v. Derby, 14 How. 468. In this case Mr. Justice Grier said: "The second instruction involves the question of the liability of the master where the servant is in the course of his employment, but, in the matter complained of, has acted contrary to the express command of his master. The rule of 'respondeat superior,'1 or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment. See Story on Agency, § 452; Smith on Master and Servant, 152.
"There maybe found, in some of the numerous cases reported on this subject, dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they depended on the question, whether the servant, at the time he did the act complained of, was acting in the course of his employment, or, in other words, whether he was or was not, at the time, in the relation of servant to the defendant.
"The case of Sleath v. Wilson (9 C.& P. 607), states the law in such cases distinctly and correctly. In that case a servant, having his master's carriage and horses in his possession and control, was directed to take them to a certain place; but instead of doing so, he went in another direction to deliver a parcel of his own, and, returning, drove against an old woman and for the acts of his own servant, acting under his directions, and not for the acts of the servant of the letter. Yet if he undertake to direct the course which the servant of the letter shall pursue, and loss thereby occur, he will be responsible.1 Thus, injured her. Here the master was held liable for the act of the servant, though at the time he committed the offence he was acting in disregard of his master's orders; because the master had intrusted the carriage to his control and care, and in driving it he was acting in the course of his employment. Mr. Justice Erskine remarks, in this case: ' It is quite clear that if a servant, without his master's knowledge, takes his master's carriage out of the coach-house, and with it commits an injury, the master is not answerable, and on this ground, that the master has not intrusted the servant with the carriage; but whenever the master has intrusted the servant with the control of the carriage, it is no answer, that the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law; the master, in such a case, win be liable, and the ground is, that he has put it in the servant's power to mismanage the carriage, by intrusting him with it.'