principal, whether such advances are in the form of the payment of freight, customs, duties, or a direct loan to the principal on the credit of the goods. After the incurring of such expenses, or the making of such advances, the bailment is not revocable by the bailor and is not revoked even by his death. It has then become an agency coupled with an interest.

It has even been held, that where a factor has made large advances and incurred expenses on account of the property of the principal in his possession, the latter "cannot by any subsequent orders control his right to sell at such time, as in the exercise of a sound discretion, and in accordance with the usage of trade, he may deem best to secure indemnity to himself and to promote the interests of the consignor, he acting, of course, in good faith and with reasonable skill. The death of the factor, on the other hand, terminates the relationship, as it is generally looked upon as one which involves personal skill and responsibility. This is also probably true of his insolvency. The lien of

3

the factor is usually a general one and may be asserted against any or all of the goods received from his principal for any and all of his commissions, advances, and expenditures in relation thereto. It is, however, probable that the goods must all be received as the result of one consignment, or of a continuous and connected series of consignments. The factor may pledge or transfer his lien on the goods entrusted to him as a security for charges and advances to the extent of his own lien therefor, and in extreme cases he may confer a like lien on others for customs and duties due. If he goes further and pledges the goods as his own, or as a security for his own debts, he, by such acts, appropriates them to his own use and renders himself liable for their value. He may, as we have said, transfer his lien on the goods existing by virtue of the advances made by him 3 Willingham v. Rushing (Ga.) 31 S. E. 130; Feild v. Farrington, 10 Wall, 141.

6

4 Audenrud v. Bettely, 8 Allen (Mass.) 302.

5 Edw. on Bail., 2d ed., § 365.

2 Kent Com., 626, 627; M'Combie v. Davies, 7 East. 5.

to the consignor, and also, for proper charges due to him on the same, but a notice of the nature of the lien must be given to the party to whom the goods are delivered, and the right must be reserved to take them into his custody at any time he may desire to do so, or when he may be instructed to sell them. This is nothing more nor less than making such third person his agent for the preservation of his lien. He may, also, as we have before seen, pledge the goods for the payment of duties and similar charges; and, in all cases, if the owner seeks to maintain conversion against his factor's pledgee for a pledging of the goods for an amount beyond such reasonable duties and charges, he must first tender the amount that is actually due and payable.

7 Ludden v. Buffalo Batting Co., 22 Ill. App. 415.

CHAPTER VI

THE INNKEEPER

§ 48. Innkeeper and Boarding-House Keeper Distinguished. An innkeeper is "one who keeps a house publicly, openly, and notoriously, for the entertainment and accommodation of travelers and transients for reward, and who holds himself out as ready and willing to supply to such persons the conveniences usually supplied to, and reasonably necessary for, travelers while upon their journey." 1

3

"1 Formerly the holding out or furnishing or being ready and willing to furnish not merely lodgings but food and drink and accommodations for both man and beast, was necessary to the relationship. Now, however, the furnishing of lodgings alone will often be deemed sufficient, provided that meals can be obtained within the building, or in a building adjacent thereto;2 and, neither the furnishing of liquors nor the feeding and stabling of horses is now generally deemed to be necessary to the relationship. It has, indeed, been intimated in more than one case that the furnishing of rooms alone to transients, as opposed to regular lodgers, in a neighborhood where meals can be easily and conveniently obtained, will impose upon the landlord the same obligations as to care and custody that are usually imposed upon the keeper of the regular inn. The ordinary rooming house, however, is not an inn, nor will the furnishing of food alone meet the requirements. The fact that the house is open to the public, and that without any previous agreement for accommodations, or agreement as to the

1 Cooley on Torts. (2d ed.) 757.

4

2 Kopper v. Willis, 9 Daly, 460; Cromwell v. Stevens, 2 Daly, 15.

* Kisten v. Hildebrand, 9 B. Monroe (Ky.) 72, 48 Am. Dec. 416; Pinkerton

v. Woodward, 33 Cal. 557, 91 Am. Dec. 657.

4 Krohn v. Sweeney, 2 Daly, 200; Bernstein v. Sweeney, 33 N. Y. Sup. Ct. 271; Taylor v. Monnot, 4 Duer, 16.

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duration of their stay, the public is invited to resort, and does resort thereto and enjoy its advantages, distinguishes the inn from the boarding house. In the case of the boarding house, the keeper or owner, reserves to himself the choice of his customers and the terms of their accommodation, contracts specially with each customer, and usually, arranges for long periods and a definite abode. In the case of the innkeeper, the person entertained must be a transient, or guest. In the case of the boarding-house keeper, the relationship must be more or less permanent. In order to be a transient or guest, however, it is not always necessary that one should be on the move, nor that one's stay should be strictly limited, nor is it always necessary that one should be a resident of a different city or locality. The test is as to whether or not the hotel or inn is one's temporary home or merely a temporary stopping place. If looked upon and treated as a temporary home, it is not an inn nor a hotel, but a boarding or lodging house. If looked upon as a temporary place of abode merely, the place is an inn and the customer is a guest, or transient, no matter how long his actual sojourn may be.

§ 49. The Liability of the Innkeeper towards the Goods of his Guest. There is no little conflict among the authorities as to the liability of the innkeeper towards the goods of his guest, although it is, and from an early date has been, generally conceded that his liability is, and should be, greater than that of the ordinary bailee for hire. On account of the necessities of the traveler and the ease with which the innkeeper could collude with thieves and robbers (necessities and an ease of collusion which were much more apparent in earlier times than they are today, and in sparsely settled and frontier communities than they are in those which are old and thickly inhabited), many cases have imposed upon the innkeeper the absolute liability of an insurer of all things brought into the inn, except, as to the act of God, the public enemy, the inherent defects of the articles themselves and the contributory negligence of the guest, or of some one that he has brought into the inn

with him, and except also, as to goods which have been brought to the inn for purpose of trade, and of trade alone, concerning which, if accepted, the innkeeper occupies the relationship of a bailee for hire. Other cases take the position that, though the liability and care of the innkeeper should be great, there should, at least, be some evidence of negligence either on his part, or on the part of his servants, before a liability should be imposed," although generally, they conclusively presume negligence where goods are lost by the theft of persons within the inn even though such persons be fellow guests. They excuse the innkeeper, therefore, from liability for losses which occur from robberies by persons from without, superior force, and accidental fires, unless the negligence of the innkeeper contributes thereto; and also, of course, excuse the innkeeper from liability for those losses which are occasioned by the act of God, the public enemy, or the inherent defects of the articles themselves, or the contributory negligence of the guest. Usually they hold that the burden of providing due care is upon the innkeeper and that a mere loss will raise the presumption of negligence.

It will be seen that even the less stringent of these rules imposes upon the innkeeper a liability which is greater than that of the ordinary bailee for hire, while the stricter rule is even more severe than that which is applied to common carriers of passengers. The ordinary bailee for hire is liable only for the failure to exercise ordinary care. The innkeeper, by one rule, is made absolutely liable as an insurer, and by the other, is made liable in cases of theft within the inn. The common carrier is liable only as an insurer of that which is distinctly and specifically entrusted to his care and custody, and is not liable as an insurer of that over which the shipper or traveler maintains any measure of personal control or direction. He is not liable,

Hay v. Pacific Imp. Co., 93 Cal. 53; Hulett v. Swift, 33 N. Y. 571; Mason v. Thompson, 9 Pick, 283.

• See discussion in Sibley v. Aldrich, 33 N. H. 553; Metcalf v. Hess, 14 Ill. 129; Merrill v. Claghorn, 23 Vt. 177.

7 Houser v. Tella, 62 Pa. St. 92; Clute v. Wiggins, 14 Johns, 175.