Learned-Letcher Lumber Co. v. Fowler

BRICKELL, G. J. The contract in reference to the oxen is styled a “rent contract,” and the promise of the maker is to ‘ ‘rent” the oxen. This verbal inacurracy must be disregarded in the interpretation of the contract. In its true significance, technical and ordinary, “rent” is compensation for the possession and use of lands or of things corporeal. “Hire” pertains to things personal, and is the reward or compensation to be yielded for their possession or use. It is, of cons-.'quence, plain that the word “rent” was by the par ties intended to bear the meaning of “hire.” Hiring is a known species of bailment, and one of its distinguishing characteristics is that it is never gratuitous, — it is always for a reward or compensation. — Story on Bailments, § 8. The relation between the parties created by the contract was that of bailor and bailee. The duration of the bailment — the term of the hiring of the oxen — is not expressed ; it was, therefore, subject to termination at the will of bailor-and bailee ; neither could insist, against the election of the other, that it should continue. As to the liabilities and duties of the bailee, the contract contains two separate, distinct stipulations. The first is that the hirer shall pay $1.0.0 per day for the use of the oxen. The second is, that he shall feed and take care of them, returning them to the bailor in as good condition as they were in when received. The contract of itself separates and distinguishes the stipulations. The one is not to make pecuniary cpmpensation during the continuance of the bailment, but only for the days the oxen were used or employed. If the bailment continued for any length of time, there would be of necesity, as the parties knew, days when the oxen could not be used, or would not be used. Therefore, the pecuniary compensation was limited to days in which there, was use of them. But, whether in use or idle, the oxen must be cared for and fed so long as the bailment continued; and, therefore, this duty of the bailee was not limited, like the pecuni 173 ary compensation; to the days of the use. This was the construction given the contract by the city court in its instruction to the jury, and there is.no error in the instruction given, or in the refusal of the instruction requested. We do not deem it necessary to consider the assignments of error relating to the admission of evidence. The, evidence, if improperly admitted, could not have worked injury to the appellant, for it is apparent the controversy between the parties depended wholly upon the contract, and the construction was dependent on the terms of the writing, was matter,of law, upon which it was the exclusive province of the court to pass. Let the judgment be affirmed.