From the Casuist: The Case of the Missing Horse
Printed in The Pennsylvania Gazette, January 25, 1731/2; also draft: Historical Society of Pennsylvania.6
To the Query, propos’d to the Casuist in the last Gazette, I have received two Answers, from different Hands, each of which subscribes himself The Casuist. As their Opinions are different, ’twill perhaps be more satisfactory to the Querist if I insert them both.
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,
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 Premium 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 £10 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.
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.
6. The surviving draft, in BF’s hand, is of the second letter only. The authorship of the first and third replies is uncertain.