432 BAILMENT. 



Where the contract has been made on Sunday and is, there- 

 fore, generally void,*** this does not preclude an action of tort 

 being brought for an injury resulting from driving beyond 

 the agreed distance or from negligence or wilfulness of any 

 other kind.^^ There are some decisions to the contrary,^® 

 but the above rule is undoubtedly better law. 



103. Action; Damages. — It has been already said that the 

 bailee may bring an action for an injury to the animal.*^ If 

 the owner seeks to recover for the killing of his animal by a 

 third person while in the hands of a bailee for hire, his remedy 

 is case, not trespass.^^ And the bailee's negligence was held 

 no defence where the action was brought by the owner for a 

 colt's death from falling into a ditch negligently constructed 

 by the defendant through a comer of the bailee's enclosure.^® 

 Where A. had hired out his horse to B. for a month and B. 

 kept it for two months and then sold it toC.,it was held that A. 

 might recover the value from C, though the latter had acted 

 bona Me and had paid B. the full value.^" 



Where A. let B. his team to be used for joint account on 

 the lands of A., and B. left it unfastened while he got over 



of modern decisions in it than have the older decisions which regard the 

 slightest intentional deviation from the terms of the contract as a conver- 

 sion which charges the hirer with the value of the horse at that time and 

 only permits him to avoid paying the owner for it by its return to the 

 latter while equally valuable." 



" See Berrill v. Smith, 2 Miles (Pa.) 402; Chenette v. Teehan, 63 N. H. 

 149. 



"Stewart v. Davis, 31 Ark. 518; Frost v. Plumb, 40 Conn, in; Hall 

 V. Corcoran, 107 Mass. 251; Morton v. Gloster, 46 Me. 520; Woodman v. 

 Hubbard, s Post. (N. H.) 67; Doolittle v. Shaw, supra. 



" See Gregg v. Wyman, 4 Cush. (Mass.) 322; Way v. Foster, i Allen 

 (Mass.) 408 [overruled in Hall v. Corcoran, supra] ; Whelden v. Chappel, 

 8 R. I. 230. 



" See § 99, supra. 



The bailee cannot bring trespass against the bailor for feeding and 

 caring for the stock: SheafTer v. Sensenig, 182. Pa. St. 634. 



" Hall V. Pickard, 3 Camp. N. P. 187. 



" Kellar v. Shippee, 45 HI- App. 377. =» Shelley v. Ford, 5 C. & P. 313. 



