as to have lost their value as such, the employer may abandon them to the workman, and recover of him their value. So if the thing be left imperfect and unfinished, by the fault of the workman, he can recover nothing; but if not by his fault, then he should have compensation pro tanto, subject to set-off. *138 And if the contract be rescinded by the act or assent * of both parties, then the workman may recover pro tanto. If the deviation be such as makes the thing more valuable and more costly, the workman cannot recover for this additional cost, unless the employer assented thereto. (c) In this last case, and in some others, it is often important and difficult to determine what is an assent on the part of the employer, and what assent is sufficient. (d) Knowledge and silence might be considered so, if a knowledge of the deviation existed while it was going on, and the employer could put a stop to it. But not if only known afterwards, and when too late to prevent or arrest the alteration. It would certainly be safer and more just for the employer to signify his disapprobation as soon as possible; and his not doing so would be a circumstance, which, connected with others, as directing other alterations in conformity, and the like, might lead to an inference that he assented to and adopted the alteration. Contracts for work and labor in making some article frequently contain a provision, that if there be alterations made with the assent of both parties, such alterations shall be paid for or allowed for at the same rate of payment as that provided by the contract for the work it specifies; and we think that such would be the operation of law, without an express stipulation. (e) A workman employed to make up materials, or to alter or repair a specific article, has a lien upon the materials of the thing for his pay. (f) But this is merely a passive right of (c) The principles stated above in our text are not peculiar to the contract of which we are now treating. They apply equally to several other species of contracts; and we have already had occasion to consider them somewhat in our chap ter on the Hiring of Persons. We shall defer their further consideration and the citation of cases until we come to our chapter on Construction. bailed to him has a particular lien on them; but such lien does not exist in favor of a journeyman or day-laborer. So in Morgan v. Congdon, 4 Comst. 551, it is held, that every bailee for hire, who by his labor or skill imparts additional value to the goods, has a lien thereon for his charges, there being no special contract inconsistent with such lien. And such lien extends to all the goods deliv (d) See Lovelock v. King, 1 Mood. & ered under one contract, and is not conR. 60. See also ante, pp. 56-58. fined to the particular portion on which the labor has been bestowed. Accordingly where રી quantity of logs was delivered on different days at the defendant's saw-mill, upon an agreement to saw the whole quantity into boards, and the retainer, or, as it is sometimes called, a passive lien, and *139 does not authorize a sale. There is some authority for the proposition, that where the retainer of the property involves considerable expenditure, and renders it entirely useless to both parties, the right of sale may exist, by local custom; (g) but it is well settled that such a lien does not in general authorize a sale. (h) And while equity will decree a sale in fulfilment of a pledge, it refuses in this case to grant relief to a bailee. (i) Tradesmen and mechanics generally have, by the common law of England and this country, a lien on chattels in their hands in the course of their business; and this lien and the rules of law applied to it, are considered in our chapter on Liens. WAREHOUSEMEN. This is also a contract for mutual benefit; and the bailee is therefore held only to ordinary diligence. (j)1 The forwarding merchants of this country are only subject to the liabilities of warehousemen, (k) unless they act also as defendant sawed a part of them, and delivered the boards to the bailor, without being paid for the service; it was held, that he had a lien for the amount of his account upon the residue of the logs in his possession. And the care, skill, and labor employed by a trainer upon a race-horse give him a right of lien, but he waives this lien by contracting to allow the owner of the horse to take it for racing whenever he chooses. Forth v. Simpson, 13 Q. B. 680. (g) Hostler's case, Yelv. 66; Moss v. Townsend, 1 Bulstr. 207. 172; (h) Jones v. Thurloe, 8 Mod. Chase v. Westmore, 5 M. & S. 180. () Thames Iron Co. v. Patent Derrick Co., 1 Johns. & Hem. 93. 6) Chenowith v. Dickinson, 8 B. Mon. 156; Foote v. Storrs, 2 Barb. 326; Hatchett v. Gibson, 13 Ala. 587; Cailiff v. Danvers, Peake, Cas. 114; Platt v. Hibbard, 7 Cowen, 497; Knapp v. Curtis, 9 Wend. 60; Batut v. Hartley, L. R. 7 Q. B. 594; Searle v. Laverick, L. R. 9 Q. B. 122; Schwerin v. McKie, 51 N. Y. 180; Jones v. Morgan, 90 N. Y. 4; Safe Deposit Co. v. Pollock, 85 Penn. St. 391; National Bank v. Graham, 100 U. S. 694. But if an uncommon or unexpected danger arise he must use efforts proportioned to the emergency to ward it off. Leck v. Maestaer, 1 Camp. 138. In this case the defendant was the proprietor of a drydock, the gates of which were burst open by an uncommonly high tide, and the plaintiff's ship, which was lying there, forced against another ship and injured. It was sworn, that with a sufficient number of hands the gates might have been shored up in time, so as to bear the pressure of the water; and, though the defendant offered to prove that they were in a perfectly sound state, Lord Ellenborough held, that it was his duty to have had a sufficient number of men in the dock to take measures of precaution when the danger was approaching, and that he was clearly answerable for the effects of the deficiency. So a wharfinger who takes upon him the mooring and stationing of the vessels at his wharf, is liable for any accident occasioned by his negligent mooring. Wood v. Curling, 15 M. & W. 626; s. c. 16 id. 628. The same rule applies to an agister of cattle. Broadwater v. Blot, Holt, 547. See ante, p. 131, n. (k) Roberts v. Turner, 12 Johns. 232. This is a very important case on the liability of forwarding merchants. It was an action on the case against the defendant as a common carrier. The defendant resided at Utica, and pursued the business of forwarding merchandise and produce from Utica to Schenectady and Albany. It appeared that the course of business was, for the forwarder to receive the merchandise or produce at his store, and send it by the boatman who transported goods 1 In Smith v. Frost, 51 Ga. 336, it was held that a warehouseman was not liable, if the owner knew of the danger to which the property was subjected and could have saved it by the exercise of ordinary care. — - W. *140 * common carriers, in which case they come under the peculiar rules to be hereafter noticed. It may sometimes be difficult to determine in which capacity such a person acted at the time of the loss. But in general, the rule is, that if the transit had terminated, and the bailee was only under an engagement to forward the goods by another carrier, he is only a ware on the Mohawk River, or by wagons to Schenectady or Albany, for which he was paid at a certain rate per barrel, &c., and his compensation consisted in the difference between the sum which he was obliged to pay, and that which he received from the owner of the goods. The defendant received from the plaintiff who resided in Cazenovia, in Madison county, by one Aldrich, his agent, twelve barrels of potash, to be forwarded to Albany to one Trotter; the ashes were put on board a boat, to be carried down the Mohawk to Schenectady, and, while proceeding down the river, the boat ran against a bridge and sunk, and the ashes were thereby lost. The defendant's price for forwarding to Schenectady was twelve shillings per barrel, and the price which he had agreed to pay for transporting the goods in question to that place was eleven shillings; he had no interest in the freight of the goods, and was not concerned as an owner in the boats employed in the carriage of merchandise. The judge being of opinion that these facts did not make the defendant a common carrier, nonsuited the plaintiff; and a motion having been made to set the nonsuit aside, Spencer, J., said: "On the fullest reflection, I perceive no grounds for changing the opinion expressed at the circuit. The defendant is in no sense a common carrier, either from the nature of his business, or any community of interest with the carrier. Aldrich, who as the agent of the plaintiff delivered the ashes in question to the defendant, states the defendant to be a forwarder of merchandise and produce from Utica to Schenectady and Albany; and that he delivered the ashes, with instructions from the plaintiff to send them to Col. Trotter. The case of a carrier stands upon peculiar grounds. He is held responsible as an insurer of the goods, to prevent combinations, chicanery, and fraud. To extend this rigorous law to persons standing in the defendant's situation, it seems to me, would be unjust and unreasonable. The plaintiff knew, or might have known (for his agent knew), that the defendant had no interest in the freight of the goods, owned no part of the boats employed in the carriage of goods, and that his only business in relation to the carriage of goods consisted in forwarding them. That a person thus circumstanced, should be deemed an insurer of goods forwarded by him, an insurer, too, without reward, would, in my judgment, be not only without a precedent, but against all legal principles. Lord Kenyon, in treating of the liability of a carrier (5 T. R. 394), makes this the criterion to determine his character; whether, at the time when the accident happened, the goods were in the custody of the defendants ás common carriers. In Garside v. The Proprietors of the Trent and Mersey Navigation Co., 4 T. R. 581, the defendants, who were common carriers, undertook to carry goods from Stourport to Manchester, and from thence to be forwarded to Stockport. The goods arrived at Manchester, and were put into the defendants' warehouse, and burnt up before an opportunity arrived to forward them. Lord Kenyon held, the defendants' character of carriers ceased when the goods were put into the warehouse. This case is an authority for saying, that the responsibilities of a common carrier and forwarder of goods rest on very different principles. In the present case the defendant performed his whole undertaking; he gave the ashes in charge to an experienced and faithful boatman. It has been urged that the defendant derived a benefit from the carriage of the goods, in receiving cash from the owners of produce, and paying the boatmen in goods, and also in charging more than he actually paid. The latter suggestion is doubted in point of fact; but admitting the facts to be so, these are advantages derived from the defendant's situation as a warehouse keeper and forwarder of goods, and by no means implicate him as a carrier; for surely the defendant is entitled to some remuneration for the trouble in storing and forwarding goods. In any and every point of view, there is not the least pretext for charging the defendant with this loss as a common carrier." See also White v. Bascom, 28 Vt. 268. *141 houseman. (1) Nor will it cause him to continue to be a common carrier until the next carrier receives the goods, that he has no distinct compensation as warehouseman. (m) But if the goods are housed by the carrier between the termini of his transit, they are still under his charge as carrier. (n) And if he pays the warehouse rent to another person, he is still liable as carrier, if his duty has not terminated, and he is bound by the contract or the usage to deliver the goods. (0) But if he is only bound to keep them safely until the consignee or owner calls for them, he is then only a warehouseman, although the goods be in his own store. (p)1 (x) And if he undertakes to forward them beyond his own route, and for that purpose puts them into a suitable vehicle, or otherwise disposes of them in a proper way for that purpose, he is liable only for negligence. (g) And if he (1) Garside v. Trent and Mersey Navigation Co., 4 T. R. 581. In this case the defendants, being common carriers between Stourport and Manchester, received goods from the plaintiff at Stourport to be carried to Manchester, and to be forwarded from the latter place to Stockport. The defendants carried the goods to Manchester, and there put them in their warehouse, in which they were destroyed by an accidental fire before they had an opportunity of forwarding them. The court held, that they were not answerable for the loss. See also Brown v. Denison, 2 Wend. 593; Ackley v. Kellogg, 8 Cowen, 223. (m) See Garside v. Trent and Mersey Navigation Co., 4 T. R. 581. (n) Forward v. Prittard, 1 T. R. 27. (0) Hyde v. Trent and Mersey Navigation Co., 5 T. R. 389. (p) Webb, In re, 8 Taunt. 443. In this case, A, B, C, and D, in a partnership as carriers, agreed with S. & Co., of Frome, to carry goods from London to Frome, where they were to be deposited in a warehouse belonging to the partnership at Frome, where A resided, without any charge for the warehouse-room, till it should be convenient for S. & Co. to take So the goods home. Goods of S. & Co., (q) Thus, where common carriers received goods on board their sloop, to transport from New York to Troy, where they transferred them on board of a 1 A stipulation in a bill of lading that "the goods will be deposited at the expense of the consignee, and at his risk of fire, loss, or injury, in the warehouse provided for that purpose, &c.," does not exempt a carrier from liability as a warehouseman for a negligent delivery of goods stored in a warehouse under his control. Collins v. Burns, 63 N. Y. 1; Merchants, &c. Co. v. Story, 50 Md. 4. (c) See Murray v. Int'l S. S. Co., 170 Mass. 166, 48 N. E. 1093; Byrne v. Fargo, 73 N. Y. S. 943; Grossman v. Fargo, 6 Hun, 310; Laporte v. Wells, Fargo & Co., 48 N. Y. Ŝ. 292; Minne K. sota Butter & Cheese v. St. Paul Cold Storage W. Co., 75 Minn. 445, 77 N. W. 977, 74 Am. St. Rep. 515; Taussig v. Bode, 134 Cal. 260, 66 Pac. 259, 86 Am. St. Rep. 250, 54 L. R. A. 774. receives goods as warehouseman into his store on his own wharf, for the purpose of carrying them forward, he is not liable as a carrier for their loss until their transit begins, actually or constructively, because until then he does not assume the character of a carrier. (r) If, however, he receives them to forward them, and delivers them to one not authorized to receive them, he is liable. (rr) *142 *It is not necessary that the goods be housed, to affect the bailee with the liabilities of a warehouseman. It is enough if they are actually within his charge and custody for the purpose of being housed. (s) As to the obligation of the warehouseman to deliver the goods to the consignee, or to redeliver them to the consignor, in the case where they are claimed by another as the proper owner who forbids such delivery, there seems to be some uncertainty. (t) (x) canal-boat bound to the north, pursuant to the bailor's instructions; receiving no reward for the transfer or further transportation; and the goods were lost by the upsetting of the canal-boat, it was held, that their character of common carriers ceased at Troy; and having exercised ordinary care in seeing the goods placed on board a safe boat, they were not responsible for the loss. Ackley v. Kellogg, 8 Cowen, 223. (r) Platt v. Hibbard, 7 Cowen, 497. In White v. Humphrey, 11 Q. B. 43, where the plaintiff deposited hops in the defendant's warehouse, to be conveyed to London in the barges of the defendant (who was also a carrier), whenever the plaintiff should direct, and in the mean time to be kept by the defendant without charge for warehousing, it was held, by the judge at nisi prius, that the advantage of carrying the hops for hire might be considered as payment for the warehousing, and that the defendant was not, therefore, a gratuitous bailee, and so liable only for gross negligence; and the Court of Queen's Bench refused to grant a new trial on the ground of misdirection. (rr) Jeffersonville R. R. Co. v. White, 6 Bush, 251. (s) Thus it has been decided, that as soon as the goods arrive, and the crane of the warehouse is applied to raise them into the warehouse, the liability of the warehouseman commences; and it is no defence that they are afterwards injured by falling into the street from the break. ing of the tackle, even if the carman who brought them has refused the offer of slings for further security. Thomas v. Day, 4 Esp. 262. (t) In Ogle v. Atkinson, 5 Taunt. 759, it was decided, that a warehouseman, receiving goods from a consignee, who has had actual possession of them, to be kept for his use, may nevertheless refuse to redeliver them, if they are the property of another. But several subsequent cases have established that a warehouseman cannot dispute the title of his bailor, or of any other person whose title he has acknowledged, in an action brought against him by such person. See Gosling v. Birnie, 7 Bing. 339; Holl v. Griffin, 10 Bing. 246; Kieran v. Sandars, 6 A. & E. 515; Harman v. Anderson, 2 Camp. 243; Stonard v. Dunkin, id. 344; Burton v. Wilkinson, 18 Vt. 186. In the case, however, of Cheesman v. Exall, 4 E. L. & E. 438; s c. 6 Exch. 341, where property had been delivered by the plaintiff to the defendant, for the purpose of defeating an execution against the plaintiff, it was held, that in the present action of trover the defendant might set up the title of a previous transferee of the plaintiff to defeat the plaintiff's right to recover, and the court refer to Ogle v. Atkinson as in point. The court are inclined to the opinion that in the case of a pledge the pledgee may set up the jus tertii unless he has made an absolute agreement to give up the property to the party pledg ing it. See also Bates v. Stanton, 1 Duer, 79; Cook v. Holt, 48 N. Y. 275; Pitt v. Albritton, 12 Ired. L. 77. So if a ware (x) A warehouseman who acknowl- account attorns to him and cannot deny edges that he holds goods on a customer's his title. Stonard v. Dunkin (2 Camp. |