Labour - Carriers
There is another kind of loan in which the actual things lent are not expected to be returned, but something of a similar nature and value. If I borrow a £5 note from you, it is on the tacit understanding that the debt is discharged by paying you some other note of equal value, or possibly a cheque for £5, or five sovereigns in gold. And having borrowed the money, if I lose it or it is stolen from me without any negligence on my part, the loss will not fall on you but on me and I have to repay it.
Where money is deposited with a person for safe custody, and not by way of loan, no right of action arises until a demand has been made for it by the depositor, and therefore the Statute of Limitations does not apply.
This was a case in which a brother, who, apparently, had not a banking account, handed over the sum of £300 to a brother with whom he lived, who paid it into his current account at his bank so that he neither derived any interest from the money himself, nor did he pay any interest to his brother for the loan or deposit. There the money remained for many years until the brother who had the banking account died, when the original owner of the £300 had to bring an action against the executors of his brother's will to recover the money.
In an action which was brought for. negligently laying out money on bad securities, the plaintiff wished to purchase an annuity, and for this purpose paid over the sum of £1,400 to certain persons who undertook to do the business for him. It did not appear that they were lawyers, nor did it come out clearly in the case that they were to be remunerated for their services, and, on the supposition that they were acting gratuitously, it was held that the plaintiff was not entitled to recover damages.
A gratuitous lender of an article is not liable for injury resulting to the borrower or his servant while using it from its defective state, if the lender was not aware of it.
A builder had purchased a house, which he had pulled down with the exception of a party wall, and for his own use had erected a scaffold. A housebreaker undertook to pull down the party wall, and an agreement was entered into between him and the builder, by which the former agreed to do the job for £17. No mention of the scaffold was made in the agreement. The housebreaker employed a labourer to pull down the party wall, and said to him, There is a scaffold rigged for you, go to work."
Owing to a defect in the scaffolding the man fell down and broke his arm and sustained other injuries. The builder did not know of any defect in the scaffold, but he knew that the housebreaker's men were using it. In these circumstances, it was held, in an action which the labourer brought against the builder, that the latter would not have been liable, even to the housebreaker to whom the scaffold was lent, if the accident had happened to him, and that judgment must be given in favour of the builder.
Whether the labourer had any remedy against the housebreaker who employed him was a question which the Court did not go into. If the lender knows of any defect in an article which he is lending gratuitously, which is likely to do harm to the borrower, he must put the latter on his guard. The most obvious example is the loan of a gun which is likely to explode.
In the contract of hiring, the hirer must take as much care of the articles hired as he would if they were his own property. When a man jobbed a pair of horses, and, when one of them fell ill, took it upon himself to prescribe for the animal, with the result that it died, he was held liable, and a verdict was given against him for 60 guineas. But if he had employed a farrier or a veterinary surgeon to doctor the animal, and it had died, the loss would have fallen on the jobmaster.
A surgeon hired a carriage and horse for a year at two guineas a week. One afternoon he returned home in the carriage and told the coachman to take it to his stable, which was about 200 yards off. Instead of doing so, the coachman drove in another direction and picked up a friend, whom he drove to a place about a mile and a half from the stable. While he was returning with his friend, the carriage and horse were run into by a cab and injured. The accident occurred about three-quarters of a mile from the stable, and the coachman was convicted of having been drunk at the time.
It was held, reversing the judgment of the County Court judge, that the surgeon was liable, because there was an implied obligation on his part to return the horse and carriage in the condition in which he received them, fair wear and tear and certain accidents excepted, and that it would be against the public interest that the loss should fall on the jobmasters, who had not selected, could not dismiss, and had no remedy against the servant. The County Court judge had given judgment in favour of the surgeon, on the ground that his servant was not acting in the course of his employment but directly contrary to his orders.
The duty of the person from whom goods are hired is to see that the articles are reasonably fit for the purpose for which they are supplied. Some judges have gone further, even so far as to say that the article must be as fit for the purpose for which it is hired as care and skill can make it.
A jobmaster at Brighton let out a landau and pair and a driver for the purpose of taking a drive from Brighton to Shoreham and back. After having driven some way, whilst the carriage was going down hill and slowly over a newly mended part of the road, a bolt in the under part of the carriage broke.
The splinter-bar became displaced, the horses started off, the carriage was upset, and the person who had hired it thrown out and injured. There was no negligence on the part of the driver, and the jobmaster had no reason to suppose that there was any defect in the carriage or in any of its bolts.
Held, that there was an implied warranty of fitness, and that to exonerate the lender he must show that the breakdown was an accident not preventible by any care or skill.
Where goods are obtained on the hire system, to be paid for by instalments, the property in the goods does not vest in the purchaser till all the instalments are paid. Consequently, an agreement of this description does not amount to a bill of sale, and does not require registration. The practical result is that if the hirer becomes bankrupt before he has paid all the instalments the furnishing company have a right to remove the furniture, which cannot be retained by his trustee in bankruptcy and sold for the benefit of the creditors.
But the agreement must be in fact as well as in form a true agreement for hire, otherwise it will require registration as a bill of sale to protect the furnishing company against an action for trespass.
In this case the article is entrusted to a bailee, who is to be paid for bestowing labour on it of some sort, although such labour may be merely the conveyance of the article from one place to another. Bailees of this class are wharfingers, agisters, carriers, etc. Generally speaking, the degree of vigilance required of the bailee is ordinary.
An agister is a person who takes in horses or cattle to feed in his pasture. He is not an insurer of the animals, but he must use reasonable care.
An agister put a young horse on some marshland where there were a lot of heifers. In an adjoining field, separated only by a ditch, a bull was grazing which was not regarded by the farmer as a vicious animal, but he knew that it was in the habit of getting into the field amongst the heifers. For reasons best known to itself, the bull killed the horse, and the agister had to make good the loss to the owner.
If a person who has contracted to warehouse goods at one place warehouses them at another, where they are accidentally destroyed, he takes upon himself the risk of so doing. The liability of a common carrier is as great as that of an innkeeper; and he is, in fact, an insurer, being responsible for loss by any cause, except the act of God, or, in other words, sudden storm and tempest, or the King's enemies, persons with whom the nation is at open war, and not merely thieves and highwaymen, or some inherent defect in the thing carried.