Is a bailee for hire responsible for the failure to return the thing hired, when it has been lost or destroyed?

'It is elementary that, generally speaking, the hirer in a simple contract of bailment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle. This rule was tersely stated by Mr. Justice Bradley in Clark v. United States, 95 U.S. 539 (24 L.Ed. 518), where it was said (p. 542): 'A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bailed. This is not only the common law, but the general law on the subject (citing authorities)."

Where, by contract of bailment, the hirer has either expressly or by fair implication assumed the absolute obligation to return, even although the thing hired has been lost or destroyed without his fault, the contract embracing such liability is controlling, and must be enforced according to its terms. A bailee who assumes but the common-law liability is exempt from liability for loss of the consigned goods arising from inevitable accident. But the bailee may, however, enlarge his responsibility by contract, express or fairly implied, and render himself liable for the loss by destruction of the goods committed to his care. The bailment or compensation to be received therefor being a sufficient consideration for such an undertaking. Sturm v. Boker, 150 U.S. 312, 14 Sup.Ct. 99, 37 L.Ed. 1093.

It is well settled that if the party, by his contract, charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. Dermott v. Jones, 2 Wall. 1, 17 L.Ed. 762.

So, an express provision in a contract of bailment for hire to keep the subject of the trust safely will not enlarge the common-law liability of the bailee, for such an obligation the law implies that is to keep as safely as an ordinarily prudent man would his own goods. Such a provision will not constitute the bailee an insurer for the [256 F. 615.] safety of the thing bailed; and, should it be destroyed by unavoidable casualty or stolen without the fault of the bailee, he will not be responsible. Ames v. Belden, 17 Barb. (N.Y.) 513.