14. Rights and duties of bailee.—We have already seen that the bailee must take such reasonable care of the property of his bailor in his possession as a pru dent man would of his own property. If A sends his horse to B to be kept at B's stable, and, the stable not being locked at night, the horse is stolen, B will not be excused because he shows that he did not lock the stable while his own horses were therein. It could not be said that, in leaving the stable door unlocked, even tho his own horses were inside, he was acting as a pru dent man would in the care of his own property.
If the bailment of the thing is made for a special purpose, we have also seen that the bailee must use the thing for that special purpose, and he is liable for loss or damage arising during or because of any other use or employment of the thing. Thus, it has been held, that when a person hires from another a horse and wagon with seats for two persons, and he places three seats therein, and the horse during the journey sickens and dies,,he will be liable for the misuser; or when B hires a Horse to drive to the county fair, but instead drives to market, where the horse is accidentally killed, B is liable for the value of the horse.
The bailee or lessee is not ordinarily responsible when the thing leased is destroyed by fire without his fault. Thus, when goods are leased, under a covenant by the lessee to restore them to the lessor at the expiration of the term in as good order as they then were, reasonable wear only excepted, and the goods during the term were destroyed by fire without the lessee's fault, it was held that the absolute words of the covenant were controlled by the implied condi tion that the goods should continue to exist, and that the lessee was not liable on the covenant for not re storing them at the end of the term.
15. Warehousemen and wharfingers.—A ware house is a storehouse for goods. A warehouseman is a bailee who owns or keeps a warehouse in which he keeps goods in storage for hire. A wharfinger is one
who owns or keeps a wharf for the purpose of receiv ing goods for a compensation. The contract between the bailor and the warehouseman is generally evi denced by a warehouse receipt which is handed to the bailor. Such a receipt may be of prime importance if a doubt arises whether there has been a sale or a bailment. In its absence, or if it is ambiguous, the circumstances surrounding the transaction will be carefully examined. Thus, it was held in an Ontario case in which wheat was left with a warehouse man by a farmer •(the owner), and the sale price was to be thereafter fixed; the fact that the risk of fire was to be borne by the farmer and the wheat to be kept in a separate bin, was strong evidence that no sale was In a Manitoba case it was held that, when wheat is received in a warehouse or elevator nominally on stor age for the person delivering it, but on such terms that the identical goods are so mixed up with others that they cannot be returned, and the well-understood course of the business is that, unless a price is agreed on, the party delivering the goods can only require an equivalent amount of the same kind and quality to be accounted for to him, the contract is really one of sale and not of bailment, whether the vendor is to re ceive the price in money or an equal quantity of goods, or has an option to do either, as the property in the goods has passed to the warehouseman.' But ordi narily, when the grain of different owners is stored and mixed in one bin, each bailor becomes an owner in common of his share of the whole. The elevator owner is then bound to keep in his bins sufficient grain to enable him to make delivery of the share of each bailor. Otherwise he may be held for conversion.
Warehouse receipts are negotiable in that they are transferable by indorsement and delivery and carry to the transferee the title in the goods covered by them. The Bank Act defines "warehouse receipt" as follows :