A hiring of property for a, specific term is a bailment, though the hirer has an option to purchase before the expiration of the term ; Hunt v. Wyman, 100 Mass. 198 ; Col lins v. R. Co., 171 Pa. 243, 33 Atl. 331; Bailey v. Colby, 34 N. H. 29, 66 Am. Dec. 752. A telegraph company receiving a message is said to be a bailee for hire and not a com mon carrier ; Western Union Telegraph Co. v. Fontaine, 58 Ga. 433 ; and to be governed by the law applicable to that class of bail ments called locatio operis faciendi ; Pinck ney v. Telegraph Co., 19 S. C. 71, 45 Am. Rep. 765. See TELEGRAPH.
An agreement by which A is to let B have a horge, in consideration that B will let A have another horse, creates an exchange, not a bailment; King v. Fuller, 3 Cai. (N. Y.) 152 ; and where a jeweler's sweepings were delivered under an option to return either the product or its equivalent in value, the transaction was held to be either an ex change or a sale ; Austin v. Seligman, 21 Blatchf. 506, 18 Fed. 519.
Where animals are delivered to be taken care of for a certain time, and at the ex piration of that time the same number of animals is to be returned, and any increase is to be enjoyed by both parties, there is a bailment, not a partnership; Robinson v. Haas, 40 Cal. 474 ; so one who hired a boat, paying its running expenses out of the earn ings and dividihg what was left with the owner, was held a bailee, prior to paying the expenses and striking a balance; Ward v. Thompson, Fed. Cas. No. 17,162.
A contract for hiring teams and carriages for a certain time at a certain price, which, by its terms, is one of bailment, is not con verted into one of service,, so as to render the owner liable for the acts of the hirer, because the contract provides for the rates to be charged upon sub-letting the property and limits the territory in which it can be used and the kind of work that can be done, and because the owner employs an agent to su pervise this branch of his business, to secure men to undertake the work and to make con tracts with them ; McColligan v. R. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739, distinguishing L. R. 7 C. P. 272 ; L. R. 23 Q. B. D. 281; [1902] 2 K. B. 38.
When the identical article is to be returned in the same or in some altered form, the con tract is one of bailment and the title to the property is not changed ; but when there is no obligation to return the specific article and the receiver is at liberty to return an other thing of equal value, then the transac tion is a sale ; Sturm v. Boker, 150 U. S.
312, 14 Sup. Ct. 99, 37 L. Ed. 1093. This dis tinction or test of a bailment is recognized in Laflin & R. Powder Co. v. Burkhardt, 97 U. S. 116, 24 L. Ed. 973 ; Walker v. Butterick, 105 Mass. 237; Middleton v. Stone, 111 Pa. 589, 4 Atl. 523.
There are three degrees of care and dili gence required of the bailee, and three de grees of the negligence for which he is re sponsible, according to the purpose and ob ject of the bailment, as shown in those three classes; and the class serves to designate the degree of care, and of the negligence for which he is responsible. Thus, in the first class the bailee is required to exercise only slight care, and is responsible, of course, only for gross neglect. In the second he is re quired to exercise great care, and Is respon sible even for slight neglect. In the third he is required to exercise ordinary care, and is responsible for ordinary neglect See BAILEE.
It has been held in some cases that there are, properly speaking, no degrees of negli gence (though the above distinctions have been generally maintained in the cases; Edw. Bailm. § 61); 11 M. & W. 113 ; The New World v. King, 16 How. (U. S.) 474, 14 L. Ed, 1019 ; Perkins v. R. Co., 24 N. Y. 207, 82 Am, Dec. 28.1 ; L. R. 1 C. P. 612.
When a person receives the goods of an other to keep without recompense, and he acts in good faith, keeping them as his own, he Is not answerable for their loss or injury. As he derives no benefit from the bailment, he is responsible only for bad faith or gross negligence ; Smith v. Bank, 99 Mass. 605, 97 Am. Dec. 59; 2 Ad. & E. 256 ; Griffith v. Zip perwick, 28 Ohio St. 388 ; Laforge v. Mor gan, 11 Mart. (0. S.) La. 462 ; Knowles v. E. Co., 38 Me. 55, 61 Am. Dec. 234; Tracy v. Wood, 3 Mas. 132, Fed. Cas. No. 14,130; 2 C. B. 877 ; Burk v. Dempster, 34 Neb. 426, 51 N. W. 976 ; Kincheloe v. Priest, 89 Mo. 240, 1 S. W. 235, 58 Am. Rep. 117. But this obligation may be enlarged or decreased by a special acceptance ; 2 Kent 565; Story, Bailm. § 33 ; 2 Ld. Raym. 910 ; Ames v. Bel den, 17 Barb. (N. Y.) 515 ; and a spontaneous offer on the part of the bailee increases the amount of care required of him ; 2 Kent 585. Knowledge by the bailee of the character of the goods ; Jones, Bailm. 38 ; and by the bailor of the manner in which the bailee will keep them; Knowles v. R. Co., 38 Me. 55, 61 Am. Dec. 234 ; are important circum stances.