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Bailment.

544 Sect.

Obligations of bailee.

Sub-Sect,

1.

Hire of Custody.

OUigations of the Bailee.

2.

1107. The contract implies, in the absence of a special agreement, that the custodian will use due care and diligence in keeping the chattel, in return for a reasonable compensation to be paid by the

owner (in). But the common law liability of the custodian may be enlarged or diminished by the conditions contained in a special contract entered into by the parties. Such conditions will be construed strictly, and the bailee will be liable for any substantial deviation therefrom resulting in injury to the chattel (^i). If the custodian in either case deals with the chattel intrusted to him in a way not authorised by the bailor, he takes upon himself the risk of so doing, and is- liable for any loss or damage except such as arises from causes independent of his acts and inherent in the chattel itself (o). The effect of the payment for the accommodation afforded imposes upon the bailee obligations more stringent in their character than those raised where the custody is a purely gratuitous one {p). Apart from special contract, a custodian for reward (^) is not an insurer of the chattel confided to him. Consequently the care to be exercised by such a person in its custody is no more than that which a careful and vigilant man would exercise in the custody of his own chattels of a similar description and character (r). A custodian is therefore bound to see that the chattel intrusted to him is in proper custody (s) and properly kept(0, and if it

(m) Buxton v. Baughan (1834), 6 C. & P. 674. Harris v. Great Western Rail. Co. (1876), 1 Q. B. D. 515, ^er Blackburn, J., Van Toll v. South Eastern Bail. Co. (1862), 12 C. B. (n. s.) 75, per at p. 530 {n)



Erle,

C.J., at p. 84.

Douhleda^j (1881), 7 Q. B. D. 510, per Grove, J., at p. 511 ; Streetery. In Lilley v. Douhleday the defendant contracted to 1 Bing. 34. warehouse certain goods for the plaintiff at a particular place, but, contrary to the terms of his agreement, he warehoused a part of them at another place, where, without any negligence on his part, they were destroyed. The Court held the defendant liable, and the damage not too remote. Co. v. King, [1895] A. C. 632; Searle v. LavericJc (1874), Ip) See Brahant (o) Lilleij V.

Horlock (1822),

L. E. 9 Q. B. 122.

custodians are included agisters of cattle, warehousemen, (q) Amongst such forwarding merchants and wharfingers (Story on Bailments, s. 442). Proprietors of Trent and Mersey Navigation (1792), 4 Term (r) Garside v. Smith v. Cook (1875), 1 Finucane v. Small (1795), 1 Esp. 315 "Rep. 581 Coggs v. Bernard (1703), 2 Ld. Kaym. 909, per Lord Holt at Q. B. D. 79 " He is only to do the best he can. And if he be robbed it is a good p. 918, If he receives money and keeps it locked up with reasonable care account. Searle v. Laverick, he shall not be answerable for it though it be stolen "







supra. (s)

Quiggan

180. 212.

p.

v.

Duff

(1836),

Compare Re United

&

1 M. W. 174, per Lord Abinger, C.B., at Service Co., Johnston's Claim (1871), 6 Ch. App.

{t) Brahant <h Co. v. King, supra, where custodians of chattels for reward stored them at such a level that on a flood coming they were destroyed. See per Lord Watson at p. 640 the bailees " were under a legal obligation to exercise the same degree of care towards the preservation of the goods '