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To the Query, propos’d to the Casuist in the last
Gazette, I have received |
My Opinion, which is desired by T.P. on his
Query in your last Week’s Paper, I here send to you.
The Keeper, being accountable for the Value of
the Horse, at the end of Six Months, to his Owner, should then ask
him if he’s willing to sell the Horse, and for what Price. The
Owner setting a reasonable Price, may thereout deduct his Charge
for Keeping (according to Agreement) and pay the remaining Sum to
the Owner in Money.
This I think will be just in so plain a Case.
But as the Owner’s Consent to the Selling of his Horse, is
requisite, and as it may happen he will refuse, and the Case may be
attended with other Circumstances; to wit, in the Opinion of the
Keeper the Owner sets too great a Price, and will not, when he is
told of the Misfortune of the Horse’s being stray’d or stolen away,
make a moderate Abatement; Or, at first he answers he is not
willing to part with his Horse: And, in the Opinion of the Owner,
the Keeper has not duly regarded the Performance of his Bargain,
has carelessly suffered the Horse to stray or be stolen, or does
conceal him in order to purchase him at an under Rate. The Case
being thus, I would advise the Parties to refer the Decision of it
to two or more honest Men, indifferently chosen between them.
Yours,
To the Printer of the Gazette.
According to the Request of your Correspondent,
T.P. I send you my Thoughts on the following Case, by him proposed,
viz.
A Man bargained with another, for the
Keeping of his Horse six Months, while he made a Voyage to
Barbadoes. At his Return, he demands the Horse. The Man who
had him to keep, assures the Owner, that his Horse stray’d
away, or was stolen, within a few Days after he receiv’d
him, and that he has not heard of him since. The Owner then
demands the Value of his Horse in Money. Query, Whether
the Man who took the Horse to keep, may not justly demand a
Deduction of so much as the Keeping of the Horse would have
amounted to for six Months, according to the
Agreement?
It does not appear they had any Dispute about
the Value of the Horse, whence we may conclude there was no room
for such Dispute, it being well known how much he cost, and that he
could not honestly have been sold again for more.
But the Value of the Horse is not express’d in
the Case, nor the Sum agreed for keeping him six Months; wherefore
in order to our more clear Apprehension of the Thing, let Ten
Pounds represent the Horse’s Value, and Three Pounds the
Sum agreed for his Keeping.
Now the sole Foundation on which the Keeper can
ground his Demand of a Deduction, for Keeping a Horse he did not
keep, is this; Your Horse, he may say, which I was to
restore to you at the end of 6 Months, was worth Ten
Pounds; If I now give you Ten Pounds, ’tis an equivalent
for your Horse, and equal to returning the Horse itself: Had
I return’d your Horse, (value £10) you would have paid me
£3 for his Keeping, and therefore would have receiv’d in
Fact but £7 clear; you then suffer no Injury if I now pay
you £7; and consequently you ought in Reason to allow me the
remaining £3 according to our Agreement.
But the Owner of the Horse may possibly insist
upon being paid the whole Sum of Ten Pounds, without allowing any
Deduction for his Keeping after he was lost; and that for these
Reasons.
1. Unless an express Agreement be made to the
contrary, ’tis always suppos’d when Horses are put out to keep,
that the Keeper runs the Risque of them, (unavoidable Accidents
only excepted, wherein no Care of the Keeper can be supposed
sufficient to preserve them, such as their being slain by
Lightning, swept away by sudden Floods, or the like). This you
yourself tacitly allow, when you offer to restore me the
Value of my Horse. Were it otherwise, People, having no
Security against a Keeper’s Neglect or Mismanagement, would never
put Horses out to keep.
2. Keepers, considering the Risque they run,
always demand such a Price for keeping Horses, that if they were to
follow that Business continually, they may have a living Profit,
tho’ they now and then pay for a Horse they have lost. And if they
were to be at no Risque, they could afford to keep Horses for less
than they usually have: So that what a Man pays more for his
Horse’s Keeping, than the Keeper could afford to take if he ran no
Risque, is in the Nature of a Praemium for the Insurance of his
Horse. If I then pay you for the few Days you kept my
Horse, you ought to restore me his full Value.
3. You acknowledge that my Horse eat of your
Hay and Oats but a few Days, ’tis unjust then to charge me
for all the Hay and Oats that he only might have eat if you had
kept him, in the Remainder of the 6 Months, and which you
have now good in your Stable. If, as the Proverb says, ’tis
unreasonable to expect a Horse should void Oats, who never eat any;
’tis certainly as unreasonable to expect Payment for those
Oats.
4. If Men in such Cases as this, are to be paid
for keeping Horses when they were not kept; then they have a great
Opportunity of wronging the Owners of Horses: For, by privately
selling my Horse for his Value £10 soon after you had him in
Possession, and returning me only £7 at the Expiration of
the Time, demanding £3 as a Deduction agreed for his
Keeping; you get that £3 clear into your Pocket; beside the
Use of my Money 6 Months for nothing.
5. But, you say, the Value of my Horse being
£10 if you deduct £3 for his Keeping, and return me £7 ’tis
all I would in fact have receiv’d, had you return’d my
Horse; therefore, as I am no Loser, I ought to be
satisfied. This Argument, were there any weight in it, might
equally serve to justify a Man in selling, as abovesaid, as many of
the Horses he takes to keep, as he conveniently can, putting clear
into his own Purse, all that Charge their Owners must have been at
for their Keeping, and returning the rest; for this being no Loss
to the Owners, he may say, Where no Man is a Loser, Why may not
I be a Gainer? I need only answer to this, That I allow
the Horse cost me but £10 nor could I have sold him for more, had I
been dispos’d to part with him; but this can be no Reason why you
should buy him of me at that Price, whether I will sell him or not.
’Tis plain I valued him at £13 otherwise I should not have paid £10
for him, and agreed to give you £3 more for his Keeping till I had
Occasion to use him. Thus, tho’ you pay me the whole £ which he
cost me (deducting only for his Keeping those few Days) I am still
a Loser; I lose the Charge of those Days Keeping, I lose the £3 at
which I valued him above what he cost me, and I lose the Advantage
I might have made of my Money in 6 Months, either by the Interest,
or by joining it to my Stock in Trade in my Voyage to Barbadoes.
And all this I lose by your Negligence.
6. And lastly, Whenever a Horse is put to keep,
the Agreement naturally runs thus: The Keeper says, I will feed
your Horse 6 Months on good Hay and Oats, if at the End of
that Time you will pay me £3. The Owner says, If you will
feed my Horse 6 Months on good Hay and Oats, I will give you
£3 at the End of that Time. Now we may plainly see, the
Keeper’s Performance of his Part of the Agreement must be
antecedent to that of the Owner; and the Agreement being wholly
conditional, the Owner’s Part is not in Force till the Keeper has
performed his. You then, not having fed my Horse 6 Months,
as you agreed to do, there lies no Obligation on me to pay
you for 6 Months Feeding.
Thus we have heard what can be said on both
sides. Upon the whole, I am of Opinion, that no Deduction should be
allow’d for the Keeping of the Horse after the Time of his
straying. I am Yours, &c.
Since the Above, I have also receiv’d the Following. To
the Printer of the Pennsylvania Gazette.
Altho’ I am not Mr. Casuist, I have presumed to
send the following Answer to the Query in your last Week’s
Paper.
The Loss of the Horse, naturally implies a
Neglect of the Keeper; and there is no Reason the Owner should
suffer by any Act of the Keeper, either in the Price of the Horse,
or Expence of seeking after him. And forasmuch as the Keeper hath
fallen short in the Performance of his Contract, he not only doth
not deserve any Reward, but hath forfeited the Penalty of the
Bargain, if there were any Penalty annexed to it. But it is quite
otherwise with the Owner; for the Performance on his Part, is
subsequent to that of the Keeper; nor can he be said to fail till
the other hath performed, which he hath put out of his Power ever
to do. Therefore he ought to have Satisfaction for no more than the
Time he had the Horse in Keeping. Yours, &c.