56 Me. 121 | Me. | 1868
The plaintiff’s writ sets out a hiring by the defendants of his wagon to be used by them for a month, and alleges a promise in consideration of this letting of the wagon, to return it to him, at-the expiration of the month for which it was let, in good order, and a failure to return according to promise. It was admitted by the defendants that they made a verbal agreement to that effect, but they claim that nothing more was intended than the law implies in ordinary cases of hiring, and they allege, and the plaintiff admits, that the wagon was stolen from them during the month for which it was hired, while they were in the exercise of ordinary and proper care of the same, and that they have never been able to find or recover it, though they have used all caro and diligence to do so.
The question submitted was " whether, as matter of law, upon this state of facts, the plaintiff was entitled to recover.”
There is nothing, either in the plaintiff’s declaration or in the statement of facts, to indicate that the case differs in any respect whatever from the ordinary transaction of letting a vehicle to hire. " How long do you want it?” "A month.” " Will you bring it back in good shape in a month ?” " I will.” Similar questions and answers might, aud probably would, pass in most cases between neighbors negotiating such a transaction, without either the letter or the hirer sup
■Parker, C. J., in Foster & al. v. Essex Bank, 17 Mass., 501, remarks as follows;—"The common understanding of a promise to keep safely would be, that the party would use due diligence and care to prevent loss or accident; and there is no breach of faith or. trust, if, notwithstanding such care, the goods should be spoiled or purloined; anything more than this would amount to an insurance of the goods, which cannot be presumed to be intended, unless there be an express agreement and an adequate consideration therefor.”
In the case at bar, no agreement to insure, or consideration for "such agreement appears. Upon such a meagre statement of the transaction between these parties, it was erroneous to predicate a ruling, " as matter of law,” that the defendants were liable. The transaction being a verbal one, it would be for the jury (or for the presiding Judge, if the case were submitted to him under the statute,) to find that there was a contract between the parties, based on a legal consideration, to insure the safety of the thing hired, before the defendants could be declared liable for a loss happening under the circumstances here disclosed.
The case of Paradine v. Jane, Aleyn, 26, cited for plain
But the doctrine of these cases, which are relied on by the plaintiff, will not justify us in determining, as matter of law, that, where nothing more appears, a naked verbal promise to return the thing hired at a specified time imports a contract on the part of the hirer to insure it against inevitable casualties, or losses occurring without fault on his part. Ordinarily it would not be the intent or understanding of the parties to such a promise, to transfer thereby risks of this description from the letter to the hirer.
^Exceptions sustained.