a tailor has a lien upon the garment made from another's cloth; a blacksmith upon the horse he shoes; an inn keeper upon the horse or goods of his guest; and common carriers upon the goods they transport. But they cannot hold property for any other debt; nor have they a right to sell such property to satisfy their claim upon it. Whenever a person allows property to go out of his possession, he loses his lien. EXERCISES. § 1. Define principal and factor. Who are consignors and consignees? § 2, 3. To what extent has a factor a claim upon property consigned to him? What is this claim called? § 4. What may not an agent do with the property of the principal ? § 5. How far is a principal bound by the acts of a general agent? State a case under this rule. § 6. What is the rule in case of special agency? State a case of your own. § 7. When is a principal bound for what an agent buys in his own name? § 8. Who besides factors have the right of lien? § 9, 10. In what cases is this right possessed by merchants, mechanics, and others? CHAPTER XXXV Of Partnership. § 1. As much of the business of this country is done in partnership, it is necessary to know the rights and responsibilities of partners. A partnership is the association of two or more persons for the purpose of carrying on any business, agreeing to divide the profits and bear the loss, in certain proportions. Persons forming a partnership, unite their money or capital. Sometimes one furnishes money, and another performs the labor. Or, perhaps no money may be necessary, but each agrees to do his share of the labor. 2. All the members of a partnership are bound by the act of any one of them, or by any contract which either of them may make. Although they agree to divide their gains and losses, either one of them is liable for all the debts of the partnership. If one of the concern buys property on his own account, for his individual use and benefit, he alone is liable; but though he thus buys it, if it be afterwards applied to the use of the partnership, all become liable. §3. There are cases, however, when not all who share in the profits are responsible; as when a clerk or agent agrees to receive a part of the profits as a compensation for his service or labor; or when one receives, as rent, a part of the profits of a tannery, tavern or farm. In these cases, although the parties share in the profits, there is no partnership; and persons who buy the stock and other materials, and hire the labor necessary to carry on their respective trades, are alone responsible. the § 4. One partner cannot bring a new partner into the firm, without the consent of all the others. If, therefore, a partner should desire to sell his interest to some other person who is to take his place in the partnership, he cannot do so, unless all the partners consent to such sale. § 5. All the partners must unite in suing and being sued. Sometimes, however, there are secret or dormant partners, who conceal their names: these may not join in an action as plaintiffs, but they may be sued when discovered to be partners. § 6. As each partner is liable for all the debts of the concern, so each may, in the name of the firm, in ordinary cases, assign over the effects and credits to pay the debts of the firm. § 7. Any partner may withdraw when he pleases, and dissolve the partnership, if no definite period has been agreed on for the partnership to continue; but if, by the terms of agreement, it is to continue for a definite period, it cannot be dissolved before the expiration of the term, without the mutual consent of all the partners, except by the death or some other inability of one of them; or by a decree of the court of chancery. When a partnership is dissolved by the withdrawal of any of the partners, notice of dissolution ought to be given, or such partners will be liable for debts contracted by those who continue the business. § 8. In some of the states, a partnership may be formed by a number of persons, some of whom are to be responsible only to a limited amount, and their names are not to be used in the firm. But before a partnership of this kind can do business, a writing and certificate signed by the parties, stating the terms of partnership and the amount for which the special partners, (as they are called) are to be responsible, must be recorded: the terms of partnership must also be published in a newspaper. § 9. In partnerships thus formed, called limited partnerships, the special partners become liable only to the amount mentioned in the terms of partnership. The other partners, called general partners, whose names only are used, and who transact the business, are liable for all the debts contracted, as in ordinary partnerships. If such partnership is to be dissolved by act of the parties, before the time expires for which it was formed, notice of dissolution must be filed and recorded, and published in a newspaper. EXERCISES. 1. Define partnership. 2. In what cases are partners jointly liable? § 4. When only can a partner sell his interest in a concern? § 5. Can partners be sued separately? 6. For what purpose may an individual partner assign all the effects of the concern? § 7. In what case can any partner withdraw, and dissolve the partnership? In what case is a retiring partner liable for debts afterwards contracted. § 8, 9. What is the nature of a limited partnership? How is it formed? To what extent are the special and general partners respectively liable? Are limited partnerships authorized in this state? CHAPTER XXXVI. Of Bailment. § 1. ANOTHER class of rights and responsibilities are those which arise from delivering and receiving property in trust, to be kept or used, and re-delivered, according to agreement. Such delivery and receiving includes giving and taking goods to be kept for and without reward; in security for debt; borrowing and lending; letting for hire; carrying, &c. These are comprehended in the word bailment, which is from bail, a French word, meaning to deliver. § 2. If a person takes goods to keep and return without reward, he must keep them with ordinary care, or if they receive injury, he will be liable to the bailor for damage; in other words, a bailee without reward is responsible only for gross neglect. The person with whom goods are deposited, is also called in law, depositary. A depositary may not use the goods taken into his care. §3. A person who agrees to carry goods from place to place, or to do some other act or work upon or about them, without recompense, must use due diligence in performing the work; he is responsible for gross neglect, if he undertakes and does the work amiss; but it is thought that for agreeing to do, and not undertaking or doing at all, he is not liable for damage. If he has been strongly persuaded to do the act, only a fair exertion of his ability is required. § 4. A borrower is liable for damage in case of slight neglect. If he applies the article borrowed to the use for which he borrows it, uses it carefully, does not allow another to use it, and returns it within the time for which it was borrowed, he is not liable. § 5. A person who receives goods in security for a debt or engagement, is liable for ordinary neglect. But if he bestows ordinary care upon the goods, and they should then be lost, he still has a claim upon the pawnor for the debt. § 6. When property is hired, that is, when something is to be paid for the use of an article, and it is injured by mode rate usage, the owner bcars the loss; but the hirer must not use it for any purpose but that for which it is hired, and he must return it promptly, or he is liable for damage. § 7. If an article is delivered, upon which work is to be bestowed, the work must be properly done. A manufacturer who receives wool to make into cloth, or the tailor who takes cloth to make into a garment, must do the work well, or he is liable for damage. If the property should be lost or stolen, he is responsible for ordinary neglect. § 8. Innkeepers are, in general, responsible for all injuries to the goods and baggage of their guests, even for thefts. But for losses caused by unavoidable accident, or robbery, they are not liable. § 9. A common carrier, that is, one who carries goods for hire as a common employment, is responsible to the owner, even if robbed of the goods. But a person who occasionally carries goods for hire is not a common carrier, and is answerable only for ordinary neglect, unless he expressly takes the risk. A common carrier is one who holds himself out as ready to carry goods as a business, by land or by water, and is answerable for all losses, except in cases of public enemies, as in time of war, and in case of the act of God, as by lightning, storms, floods, &c. Public carriers are responsible for the baggage of their passengers, though they advertise it as being at the risk of the owners. EXERCISES. § 1. Define bailment. What different transactions does this term embrace? § 2. Define bailor, bailee, depositary. In what case is a bailee without reward liable to the bailor for damage? § 3. If a person receives goods to carry without reward, in what case is he liable? In what cases not? § 4. For what is a borrower liable? 5. In what case is a pawnee liable for the loss of pawned goods? §6. How is liability incurred for damage to a hired article? |