No. 1000.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 2.

Art. 2.-Of the obligations of the parties.

1. Of the obligations of the employer.

No. 1002.

1000. The obligations of the employer, which arise from the nature of the contract, are the following:

1. To pay the price agreed upon, or if no price has been fixed, to pay the workman what his work is worth, or what he deserves.

2. If there have been any deviations made in the plan, with the express or implied consent of the employer, to pay for the additions what the workman deserves. The rule in cases of deviation is to trace the work according to the original plan, and the additions are to be paid according to the usual rate of such work.(a)

3. The employer is bound to do all he can to enable the workman to fulfil his contract. If you employ a plumber to introduce the Croton water into your house in the city of New York, you are bound to pay whatever expense may be charged to obtain a permit from the proper authority.

4. The employer is bound to receive the thing when finished.

5. In making the contract, the employer must use no means to deceive the workman; such deceit may amount to a fraud and vitiate the contract.

2. Of the obligations of the workman.

1001. The workman or undertaker is bound, 1, to perform the work he has undertaken to do; 2, to do it in proper time; 3, to do it well; 4, to employ the things furnished him according to his contract.

1° Of the performance of the work.

1002. The undertaker is bound by his contract to do the work he has promised to perform, but, in general, he may employ workmen to assist him, or to do

(a) Craven v. Tickell, 1 Ves. jr. 60; 13 Ves. 73, 81.

No. 1003.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 2.

No. 1005.

the whole under his superintendence. Some undertakings must, however, be performed by the party himself; as, if I want a work of art, as a statue or a painting, and I employ a particular statuary or painter to make them, the presumption is that I want no other's work, for the value of the thing depends, in a great degree, on the name and skill of the artist. (a)

2° When the work is to be done.

1003. It is evident that if the work is not done in time, the undertaker will be liable in damages.

3° Of the obligation to perform the work well.

1004. As a general rule, he who undertakes for a reward to perform any work, is bound to use a degree of diligence, attention and skill, adequate to the performance of his undertaking, that is, to do it according to the rules of the art: spondet peritiam artis. (b) It is his fault to undertake to do a thing beyond his strength, or for which he has not sufficient skill, or to employ bad workmen; in this case the maxim applies, imperitia culpæ annumeratur;(c) ignorance is like negligence, for which one is responsible. If, for example, a farrier undertake to cure a horse, he is required to use reasonable skill; if a carpenter undertake to build a ship, he engages to use the same kind of ability. And the degree of skill rises in proportion to the value and delicacy of the operation. But he is in no case required to have more than ordinary skill, for he does not engage for more.

1005. Under this rule all professional men, who can recover for their services in an action, are included; their contract is locatio operarum and not mandate. An

(a) Poth. Louage, n. 421. See Rust v. Larue, 4 Litt. 416.

(b) Poth. Louage, n. 425; Jones, Bailm. 22, 53, 62, 97, 120; Domat, B. 1, t. 4, s. 8, n. 1; Story. Bailm. § 431; Coggs v. Bernard, Ld. Raym. 909; 1 Bell's Com. 459, 5th ed.

(c) Dig. 50, 17, 132.

No. 1006.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 2, art. 2.

No. 1006.

action will, therefore, lie against an attorney, (a) or a physician, (b) for neglect; for, like artists of all kinds, wherever they engage their services for a compensation, which they could recover by action, they are responsible for the skill and art necessary to accomplish safely what they undertake, in so far as ordinary skill and art can accomplish it. The public who employ them may exercise a judgment of selection, but having selected the person, they are entitled to presume that he has the ordinary skill in his art, of which he holds. himself out to the world to be possessed. (c) But if the employer were to engage a common blacksmith to repair his watch, and he should spoil it, or a farrier to cure his eyes, and he should lose his sight by taking his remedies, he would have no legal ground of complaint.(d)

4° Of the workman's obligation to employ properly the materials furnished him.

1006. He is bound to use the materials furnished to him according to his contract, and for the advantage of his employer; as to employ the cloth I sent a tailor to make me a coat, so that I can have a coat which shall fit me, for if it be so made that I cannot wear it, this is not a proper employment of the materials. But, if the undertaker use ordinary skill and care, he will not be responsible, although the materials may be injured; as, if a gem be delivered to a jeweler, and it is broken without any unskilfulness, negligence or rashness of the artisan, he will not be liable.(e)

The workman is to use ordinary diligence in the care of the materials entrusted with him, or to exer

(a) Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 2 Chipm. 117; S. C. 1 Verm. 73; Varnum v. Martin, 15 Pick. 440; Ruggles v. Ives, 6 Mass. 494; Wilson v. Russ, 7 Shepl. 421.

(b) Gallaher v. Thompson, Wright, 466; Landon v. Humphrey, 9 Conn. 209.

(c) Bell's Com. 459, 5th ed.; Moore v. Morgue, Cowp. 497.

(d) Jones, Bailm. 99, 100.

(e) Poth. Louage, n. 428.

No. 1007.

Book 2, part 2, tit. 5, chap. 2, sec 1, § 2, art. 3.

No. 1007.

cise that caution which a prudent man takes of his own affairs, (a) and he is also bound to preserve them from any unexpected danger to which they may be exposed.(b)

Art. 3.-Who is to bear the loss of the work and materials destroyed before they are delivered.

1007. When there is no special contract between the parties, and a thing perishes while in the possession of the workman or undertaker, without his default, either by inevitable casualty, by internal defect, by superior force, by robbery, or by any peril not guarded against by ordinary diligence, he is not responsible. This is the case only when the material belongs to the employer, and the workman only undertakes to put his work upon it. But a distinction must be observed in the case where the employer has engaged a workman to make him an article out of his own materials, for, in that case, the employer has no property in it until the work is completed, and the article has been delivered to him; if, in the meantime, the thing perishes, it is the loss of the workman, who is wholly its owner, according to the maxim, res perit domino. (c) In the former case the employer is the owner; in the latter, the workman; in the first case it is a bailment, in the second, a sale of a thing in futuro.(d)

Another distinction must be made in the case where the thing given by the employer was to become the property of the workman, and an article was to be made out of similar materials, and before its completion it perished. In this case the title to the thing having passed to the workman, the loss must be his.(e)

(a) Clarke v. Earnshaw, 1 Gow. R. 30.

(b) Leck v. Maestaer, 1 Camp. 138.

(c) Bouv. L. D. h. t.

(d) Domat, B. 1, t. 4, § 7, n. 3; Dom. B. 1, t. 4. § 8, n. 10.

(e) Ewing v. French, 1 Blackf. 353; Hurd v. West, 7 Cowen, 752, 756, note; Smith v. Clark, 21 Wend. 85; Buffum v. Merry, 3 Mason, 478; Dig. 19, 2, 31.

No. 1008.

Book 2, part 2, tit. 5, chap. 2, sec. 1, § 3, art. 1.

§ 3. Of locatio custodia, or hire of custody.

No. 1011.

1008. The locatio custodia, or deposit for hire, is a contract by which one of the parties, called the custodier, or depositary, (a) undertakes for hire to take care of goods belonging to the other party, called the depositor, for a particular time and in a way agreed

upon.

These depositaries for hire are of two classes; 1, those who are responsible only for want of ordinary diligence; 2, those who, like carriers, are responsible for all losses except those caused by inevitable accident, or the act of God, and those which are the effect of the act of a public enemy.

Art. 1.-Depositaries responsible for want of ordinary care.

1009. These are agistors of cattle; warehousemen ; forwarding merchants; factors, and wharfingers. The general rules applicable to bailments of locatio operis faciendi, which have been already considered, are also applicable to these contracts.

1010.-1. An agistor is one who receives horses or other animals, on his own ground, for hire, to take care of them. The agistor is not bound, like the innkeeper, to take all horses offered to him, nor is he liable for any injury done to the animals under his care, unless he has been guilty of negligence.

1011.-2. A warehouseman is a person who receives goods and merchandise to be stored in his warehouse for hire. He is bound to use ordinary care, and his neglect to do so will render him liable to the owner.(b) His liability commences as soon as the goods arrive and he applies the crane to take them into his warehouse. (c) It ends by delivering the goods to the true owner, and a delivery to a person not entitled will

(a) 1 Bell's Com. 458.

(b) Story, Bailm. § 444: Jones, Bailm. 49, 96, 97.

(c) Thomas v. Day, 4 Esp. 262; De Mott v. Laraway, 14 Wend. 225; Randleson v. Murray, 8 Ad. & Ell. 109.