freeholders; and the value of the lands, and amount of damages, must be assessed by a jury, and paid to the owner. It is an equitable provision in our constitutions, that private property shall not be taken for public use without just compensation.

§ 648. A contract is an agreement between two or more persons, by which the parties agree to do, or not to do, a particular thing. Contracts are executory when the stipula tions remain to be executed; or when one party agrees to sell and deliver, at a future time, for a stipulated price, and the other agrees to accept and pay. Contracts are express or implied. They are express, when parties contract in express words, or by writing; and implied, when an act has been done which shows that the parties must have intended to contract; as when a person employs another to do some service, it is presumed that the party employing intended to pay for the labor performed.

§ 649. To render a contract binding, there must be a legal consideration; something must have been payed, or something given or done, as an inducement to the fulfilment of the contract. A contract, to be valid, requires, (1.) that the thing sold has actually existence, and is capable of delivery; (2.) that a price be fixed, or susceptible of being ascertained, without farther negotiation between the parties; and, (3.) that there be a mutual consent of the parties to the contract, which is binding when a proposition made by one of the parties is accepted by the other.

§ 650. In the sale of a chattel as one's own property, if it be at the time in the possession of another, and there be no covenant or warranty of title, the party buys at his peril. But if the seller has possession of the article, and he sells it as his own property, he is understood to warrant the title. A fair price implies a warranty of title.

§ 651. With regard to the quality of the thing sold, the seller is not bound to make good any deficiency, unless he

$648. What is a contract? What is an executory contract? When are they express, and when implied? § 649. What is requisite to the validity of a contract? § 650. What is the law concerning the warranty of title? § 651. What concerning the quality of the property sold? What is the law of moral obligation in this case?

expressly warranted the goods to be sound and good, or unless he made a fraudulent representation concerning them. But moral obligation rests on every person knowingly to conceal no fault in an article he sells. And if there be an intentional concealment or suppression by one party of a material fact, in a case wherein the other has not equal access to means of information, the contract is void. But when both have equal means of information, and neither says nor does anything to impose on the other, a disclosure of facts is not necessary to make the contract valid.

§ 652. When the terms of sale are agreed on, and the bargain is struck, the contract is absolute without the actual delivery; and the property, and risk of accident to the goods, vest in the buyer. He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at sale as to the time of delivery or the time of payment; for, though the vendee acquires the right of property by contract of sale, he does not acquire the right of possession, until he pays or tenders the price. But if the goods are sold upon credit, and nothing is said as to the time of delivering the goods, the vendee is immediately entitled to the possession. To make a contract of sale valid, there must be a delivery, or a tender of it, or payment, or tender of payment, an earnest given, or a memorandum in writing signed by the party to be charged; and if nothing of this kind takes place, it is no contract, and the owner may dis. pose of his goods as he pleases.

§ 653. The statutes of New York contain express provisions on the subject of contracts. No agreement that is not to be performed within one year from the time of max. ing it; no special promise to answer for the debt, defau, or miscarriage of another person; nor an agreement or promise upon consideration of marriage, except mutua promises to marry, shall be valid, unless such agreement, note, or memorandum thereof, expressing the consideration, be in writing, subscribed by the party to be charged. Con.

§ 652. When does the buyer's right of property commence? When the right of possession? What is necessary to render a contract of sale valid? § 653. What contracts, in the state of New York, are required to be in writing?

tracts for the sale of goods for the price of fifty dollars or more, are void, unless they be in writing; or unless the buyer receive a part of the goods or evidences, or pay, at the time, a part of the purchase money.

CHAPTER VI.

Bailment.

§ 654. THE word bailment is from bail, a definition of which has been given in another place. (§ 127.) Bailment, in law, is a delivery of goods in trust, upon agreement that the trust shall be executed, and the goods restored by the bailee, when the purpose of the bailment shall have been answered.

§ 655. If a person receives goods to be kept for the bailor, and to be returned on demand, without recompense, he is to keep them with reasonable care; and unless there be a special undertaking to the contrary, he is responsible only for gross neglect, or for a violation of good faith. Gross neglect is a want of that care which every man of common sense takes of his own property. If a person undertakes, without recompense, to do some act for another in respect to the thing bailed; for instance, if he undertakes to carry an article from one place to another, he is responsible only for gross neglect, or a breach of faith.

§656. Whether a mandatary renders himself liable for the non-performance of a gratuitous undertaking, is a question on which writers on common law differ in some degree. But perhaps the prevailing opinion among us is, that a mandatary, that is, one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, but is responsible only when he attempts to do it, and does it amiss. In other words, he is responsible for

§ 654. What is the meaning of bailment? Of bailor and bailee? § 655. In what cases is a bailee liable for damages to goods kept for the bailor? § 656. In what cases does a mandatary become liable?

misfeasance, but not for nonfeasance, even though special damages be averred.

§ 657. If a person loans to another for use without reward, any article, as a horse, carriage, or book, and the article be lost or destroyed, without blame or neglect imputable to the borrower, the owner must abide the loss. But the borrower must apply the thing to the use for which it was borrowed; and he must not keep it beyond the time limited, nor permit another person to use it.

§ 658. If property be pledged as security for a debt or engagement, the pawnee is bound to take ordinary care, and is answerable only for ordinary neglect; and if the goods should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt. If he derives any profit from the use of the property, he must apply the profits, after deducting necessary expenses, towards the debt.

§ 659. There is another species of bailment, the hiring of property for a reward. The hirer is bound to use the article with due care and moderation, and not to apply it to any other use, or detain it for a longer period than that for which it was hired. If the article be injured or destroyed without any fault on the part of the hirer, the loss falls on the owner, for the risk is with him.

§ 660. In cases where work or care is bestowed on the thing delivered, for a recompense, the workman for hire must answer for ordinary neglect of the goods bailed, and apply a degree of skill equal to the undertaking; for every man is presumed to possess the skill requisite to the due exercise of the art or trade he assumes. If he performs the work unskilfully, he is responsible in damages. As, if a tailor receives cloth to be made into a coat, he is bound to perform it in a workmanlike manner.

§ 661. Forwarding merchants are responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent, unless the business and duty of carriers be attached to their other tharacter.

What is a mandatary? § 657. How does a borrower become liable? 658. What is the law in relation to property pledged or påwned ? 659. What in relation to property hired for a reward? § 660. What in relation to articles on which labor is bestowed? § 661. What in

§ 662. But with regard to innkeepers, the rule is more strict. In general, they are responsible for the acts of their servants and for thefts, and are bound to take all possible care of the goods and baggage of their guests, on the ground of the profit they receive for their entertainment. But the innkeeper is not considered responsible for loss occasioned by unavoidable accident, or by superior force, as robbery.

§ 663. A person who carries goods for hire, in a particuar case, and not as a common carrier, is only answerable for ordinary neglect, unless he expressly assumes the risk of a common carrier. But if he be a common carrier, he is in the nature of an insurer, and is answerable for acci. dents and thefts, and even for loss by robbery. He is answerable for all losses, except in cases of the act of God, and public enemies.

§ 664. Proprietors of a stage coach do not warrant the safety of passengers as common carriers; they are respon sible only for the want of due care. But as public carriers, they are answerable for the loss of a box or parcel of goods, though ignorant of the contents. But if the owner be guilty of fraud or imposition, as by concealing the value or nature of the article, or deludes the carrier by treating the parcel as of no value, he cannot hold him liable for the loss of his goods. Carriers by water are liable to the same extent as carriers by land. But the rule does not apply to postmasters.

CHAPTER VII.

Principal and Agent.-Partnership.

§ 665. AGENCY is founded upon a contract, expressed or implied, by which one party intrusts to the other the manage

relation to forwarding merchants? § 662. What respecting innkeepers? § 663. What respecting special and common carriers? § 664. What respecting proprietors of stage coaches? Carriers by water? Postmasters?

§ 665. Upon what is agency founded? How far is a principal bound