he should pay for him. Mr. Schweinler said he would take him on those terms, and if he didn't return him as good as he got him, he would pay for him." A witness for plaintiff testified: "Mr. Schweinler said he would fetch the horse back in as good condition as he took him, or, if anything happened, he would pay for him." The appellant's contention is that the relative rights of the plaintiff and defendant, as bailor and bailee, must be determined from the contract of bailment, and not by the general rules of liability under the law of bailments. We have no doubt of the correctness of this contention. Parties are permitted to make their own contracts in reference to their mutual rights and liabilities under bailments of property as well as in reference to other subjects, but, of course, are not permitted to contract in contravention of positive law or public policy, and perhaps may not in all cases relieve themselves from the results of their own negligence. In this case the language was positive and unequivocal that the bailee was to pay for the horse if he was unable to return him for any reason. If anything happened to the horse, making a return impossible, payment was to be made. This language permits of no exceptions, but implies an unconditional liability if the horse could not be returned. It does not permit of the meaning that the horse was to be paid for only in case of its loss through the bailee's fault or negligence. It creates the bailee an insurer of the return of the horse when the purposes of the bailment have been accomplished and a return demanded. The authorities firmly indorse this principle. 456 As stated by Shouler in his work on Bailments, section 106: "Whatever lawful terms may have been introduced by their contract for the purpose of qualifying the method or risk of performance should be given full force, whether expressly set forth or only implied." In Steele v. Buck, 61 Ill. 343, 14 Am. Rep. 60, the court said: "The principle that lies at the foundation of the series of authorities, English and American, on this question, is that the party must perform his contract, and, if loss occurs by inevitable accident, the law will let it rest upon the party who has contracted that he will bear it." In that same case the following was cited with approval: "Where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his own contract. If a party entered into an absolute contract, with

out any qualifications or specifications, and receives from the party with whom he contracts the consideration for such engagement, he must abide by the contract, and either do the act or pay damages, if liability arises from his own direct and positive undertaking." In Drake v. White, 117 Mass. 10, the court said: "In the present case the parties have reduced their contract to writing and have omitted to attach to the defendant's liability for the property any limitation whatever. On the contrary, their express promise is to do one or the other of two things-either to return the property specifically, or to pay for it in money. There can be no doubt that if a creditor sees fit to accept a deposit of security upon such terms, and to place himself in the position of an insurer of its safety, he can legally do so. It is not difficult to suppose a case in which the party might find it convenient that the business of guarding against the risk of fire or other accident should be attended to by the depositary. But, however, that may be, the proper interpretation of the contract is to be determined by the general rules of construction recognized by the law; and, if the parties have improvidently made their contract more onerous than they expected, the difficulty cannot be removed by a violation of these rules." In Butler v. Greene, 49 Neb. 280, 68 N. W. 496, the court said: "If the defendant contracted to keep the watch in the vault of the bank, and if it was lost by reason of his failure to do so, he was liable without regard to the general principles of the law of bailment. He had made a contract, and he was liable for all damages resulting from his failure 457 to perform it. If he had no right to keep the watch in the vault, that was his affair, and not the bailor's. The contract was not to keep the watch in the vault if the bank permitted it, but it was absolute; and it was the pledgee's business to see that he had authority to keep it there. If he had not, he should not have made the contract": See, also, Hale on Bailments and Carriers, p. 28, and cases cited: Lance v. Griner, 53 Pa. 204; 5 Cyc. 185, and cases cited; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. Rep. 99, 37 L. ed. 1093; Harvey v. Murray, 136 Mass. 377; Rohrabacher v. Ware, 37 Iowa, 85; Standard Brewery v. Bemis & Curtis Malting Co., 171 Ill. 602, 49 N. E. 507; Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. 711, 67 C. C. A. 265; Reinstein v. Watts, 84 Me. 139, 24 Atl. 719; Austin v. Miller, 74 N. C. 274.

Respondent contends that the contract imposes only such liability as the law would impose without it. Without any special contract, the law would impose on the defendant the duty to use ordinary care, and, in case of the death of the animal without defendant's fault, he would not be responsible. In this case, as we have shown, the contract went further, and enlarged the obligations of the bailee in respect to those devolving on him where no special contract exists. The principle contended for, therefore, has no application. The fact that the horse died while in defendant's possession without his fault is not a defense in view of the existing contract shown by the evidence and presumed to be true for the purposes of this appeal. The plaintiff having alleged and proved the contract, a breach thereof, demand and a refusal to comply therewith, stated a cause of action in the complaint, and the same was established by the evidence without any showing of negligence.

The judgment is reversed, a new trial granted, and the cause remanded for a new trial.

All concur.

A Bailee for Hire is Held to the Exercise of a reasonable degree of care and diligence in protecting the property bailed, but ordinarily he is not an insurer of the property, and is not responsible for unavoidable accidents; Higman v. Camody, 112 Ala. 257, 57 Am. St. Rep. 33; Drudge v. Leiter, 18 Ind. App. 694, 63 Am. St. Rep. 359; Knights v. Piella, 111 Mich. 9, 66 Am. St. Rep. 375.

CASES

IN THE

SUPREME COURT

or

OHIO.

HOFFMASTER v. BLACK.

[78 Ohio St. 1, 84 N. E. 423.]

PAYMENT, Authority to Receive—Presumption.-The burden rests upon the person making the payment of a negotiable instrument to prove that he to whom such payment was made was authorized to receive it, though it was by its terms payable in his office. (p. 681.)

PAYMENT, Authority to Receive. The Fact that a Negotiable Instrument is Made Payable at the Office of a Designated Person does not constitute him the agent to receive such payment, when he is not in possession of the instrument nor of the mortgage given to secure it. (p. 681.)

PRINCIPAL AND AGENT.-The Ratification of One Unauthorized Act is not the Ratification of Another and entirely distinct act, nor is the acceptance of the result of a series of unauthorized acts of the same kind, the creation of an implied agency to do an entirely different thing. (p. 682.)

PAYMENT—Authority to Receive Principal is not Implied from the Reception of Interest. There is no presumption from the collection of interest by the payee who has ceased to be the holder of a note and the payment thereof by him to the latter that such original payee had authority to receive payment of the principal. (pp. 682, 683.)

Action upon a promissory note made in February, 1897, payable to Frank P. Hood, or order, "principal and interest payable at the office of F. P. Hood, No. 5 East Federal street." Two weeks after the delivery of the note, Hood transferred it and the mortgage given to secure it to the plaintiff, Hoffmaster. Though the note and mortgage were delivered, no assignment was recorded, nor were the makers notified that the plaintiff owned them. The interest upon the note was paid to Hood at his office up to August 19, 1903. The defendants claimed to have paid three hun

dred and fifty dollars on the principal of the note at Hood's office to a Miss Jurey, who was then acting for him. The sum so paid was not received by plaintiff, nor did he ever authorize Hood or Miss Jurey to collect any part of the principal. The trial court found in favor of the plaintiff, but the circuit reversed the judgment for the reason, "that the use of said words in said promissory note made said F. P. Hood agent of the plaintiff below to collect the money named and made payable upon said note, notwithstanding said Frank P. Hood did not have possession of said note and mortgage." The plaintiff appealed.

R. B. Murray and S. M. Thompson, for the plaintiff in

error.

Emil J. Anderson and A. M. Henderson, for the defendants in error.

5 DAVIS, J. The circuit court reversed the judgment of the court of common pleas upon the ground, as stated in the journal entry, that the words, "Principal and interest payable at the office of F. P. Hood, No. 5 East Federal street," contained in the note, "made said F. P. Hood agent of the plaintiff below to collect the money named and made payable upon said note, notwithstanding said Frank P. Hood did not have possession of said note and mortgage." This has very much the appearance of an invitation to reverse, inasmuch as the controlling questions now presented have been decided and reported at least twice, in the lower courts of this state (Hitchcock v. Kelley, 18 Ohio C. C. 803; Antioch College v. Carroll, 25 Week. Law Bul. 289), and this judgment of the circuit court is distinctly contrary to an array of authorities so uniform, direct and abundant, that we shall not even attempt to enumerate all of them. Reference to many of the cases will be found in the places cited below: Daniel on Negotiable Instruments, 6 sec. 326; 7 Cyc. 1035, art. "Commercial Paper," by Randolph, and notes 80, 81; 1 Am. & Eng. Ency. of Law, 2d ed., 1026; 22 Am. & Eng. Ency. of Law, 520, 521, n. 7; Kohl v. Beach, 107 Wis. 409, 81 Am. St. Rep. 849, 83 N. W. 657, 50 L. R. A. 600. The principle on which these cases have been decided was stated in Lord Holt's time in Whitlock v. Waltham, 1 Salk. 157, as follows: "If the scrivener be intrusted with the custody of the bond, he may receive the interest; and though he fails, yet the mortgagee shall bear the loss.....

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