Sanchez v. Blumberg , 1915 Tex. App. LEXIS 614 ( 1915 )

MOURSUND, J.

Appellant sued appellee in justice’s court for $126.20, alleging that two checks aggregating said sum had been given plaintiff by Round Bale Gin Company, and that when plaintiff presented same at the bank payment was refused, whereupon appellee undertook to secure the money on such checks and presented them to the bank, which gave appellee credit for the amount thereof and defendant refused to pay such amount to plaintiff. There was also a prayer for exemplary damages in the sum of $70. Judgment was rendered in favor of plaintiff for $63.10. On appeal to the county court, defendant specially excepted to the plea for exemplary damages, and after a general denial specially denied that he was indebted to plaintiff and claimed that plaintiff was indebted to him in the sum of $96.90. He alleged that about January 1, 1913, he leased plaintiff certain land for the year 1913, agreeing to furnish teams and farming implements for the cultivation of the land and also feed for the teams; that he delivered to plaintiff certain mules with the express agreement that plaintiff was to take good care thereof and to use reasonable care and caution in the care and maintenance of said mules and return them to plaintiff after the expiration of said lease; that plaintiff negligently permitted one of the mules which was worth $150 to be destroyed by drowning or by escaping and wandering off; that plaintiff never accounted to defendant for the value of said mule; that plaintiff had in his possession cotton of the value of $63.10, to which plaintiff was entitled by reason of said rental contract and defendant applied said sum of $63.10 in part payment of the debt due him by plaintiff for the mule, leaving the sum of $96.90 due him by plaintiff; that plaintiff’s claim in an unliquidated demand, and defendant’s claiip arises out of said contract and is connected therewith; and that plaintiff, if otherwise entitled to recover, could not recover except upon the faith of the rental contract by the terms of which he was to receive one-half of the crops produced and by reason of which he had possession of the mules which he was obligated to return in as good condition as when received, “the natural use and wear excepted”; that plaintiff is insolvent and for that reason defendant is entitled to offset his demand above pleaded. His prayer was that he be permitted to offset his claim for the loss of the mule against any claim of plaintiffs, and that he have judgment for $96.90. It seems that plaintiff orally amended his pleading so as to claim only $63.10, for the court instructed the jury that:

“Plaintiff seeks to recover from defendant the sum of $63.10 alleged to be due plaintiff by reason of bis one-half interest in two certain checks aggregating $126.20, which two checks were appropriated by defendant to his own use and benefit.”

The court submitted the question of plaintiff’s right to recover; also, the defendant’s right to recover on his cross-action; and the jury returned the following verdict: “We, the jury, decide in favor of the defendant, August Blumberg, on cross-action.” Upon such verdict judgment was entered that plaintiff take nothing by his suit and that defendant recover of plaintiff $86.10.

It is only necessary to consider one question, namely, whether the court should have instructed the jury to return a verdict against defendant on his cross-action.

[1, 2] The parties to a bailment may substitute a special contract for the one implied by law. The bailee may be relieved of all liability or he may become an insurer, but his liability is not to be enlarged or restricted by words of doubtful meaning. The intent to- vary the liability imposed by law must clearly appear. Hale on Bailments, p. 28. According to the weight of authority, an agreement by the bailee to return the bailment in good condition, or in as good condition as when received, ordinary wear and tear excepted, does not, in the absence of a stipulation to pay in case of nondelivery, indicate an intention to enlarge the common-law liability of the bailee. Ruling Case Law yol. 3, § 30; note to Grady v. Schweinler, 14 L. R. A. (N. S.) 1091. We hold that the contract sued upon in this case did not constitute plaintiff an insurer of the mules. As the relation of bailor and bailee existed for the mutual benefit of the parties, it devolved upon the bailee to use ordinary care and diligence in the safeguarding of the bailor’s property. The trial court took the view of the law above indicated as is shown by the charge, and it only remains to determine whether the evidence supports the verdict and judgment.

[3, 4] Defendant, speaking of the lease contract, testified:

“I was to furnish him the teams and furnish food for the teams, and he was to give me half of the corn and half of the cotton produced upon the land during the rental year. He obligated himself to take good care of the teams furnished him and at the expiration of the lease return the mules to me in as good condition as received, the natural wear and tear excepted.”

The mule was kept by plaintiff in a certain inclosure owned by defendant fronting upon the river. 'Defendant testified that about the latter part of August, 1913, all of the grass had been eaten out of said inclosure, and one day he saw his mules in the lane on the public road, whereupon he demanded the return of the mules to him, but plaintiff declined to return them because under the lease contract he was entitled to their possession; that he then told plaintiff not to turn them in the lower inclosure, but to put them in another pasture owned by defendant which fronted on the river and extended to the house; that the defendant did not use the mules after they were turned over to plaintiff nor authorize any one else to do so. Plaintiff testified that he did not use this mule after he had finished his crop and that defendant was working it a short time before the flood; that he had not seen the mule since the flood. The witness Torres testified that defendant and his sons worked the mule before the flood, and that witness worked such mule for defendant after plaintiff had finished his crop. Another witness testified that the last time he saw the mule defendant’s son was driving it to a wagon; this occurred a short time before the flood. The testimony in regard to defendant’s son workirig the mule is uncontradicted. The evidence is undisputed that defendant kept some of his milk cows and a horse or two in the same inclosure in which plaintiff kept the mules. The evidence does not disclose' whether the mule was drowned or stolen, or whether he escaped from the pasture and was lost; but defendant’s pleading and testimony indicate' his theory to be that the mule was drowned by a flood in the river. ’There are no facts tending to show that a reasonably prudent man would have anticipated such a result, or that the other stock in the pasture was likewise destroyed, and the only fact relied upon to show negligence is that plaintiff failed to comply with defendant’s request or demand to put the mules in another pasture. Such refusal did not show negligence, nor a breach of the contract, for it is neither alleged nor proven that under the contract defendant had any right to direct where the mule should be kept. Defendant wanted the mule moved because of scarcity of grass in the pasture; but as no' contention is made that the mule starved to death, and defendant kept some of his stock in the pasture, it cannot be said that leaving the mule there constituted neglience which proximately caused his death.

[5] He would not be liable for any loss by thieves or for any taking from him or his servants by force. Ruling Case Law, § -23. Defendant used the inclosure for his own stock, and no facts are pleaded or proved which required plaintiff to keep up the fences, nor is there any evidence that they were not kept up. We conclude that the evidence fails to make out a case of negligence on the part of plaintiff proximately causing the death or loss of the mule.

The judgment of the trial court is reversed, and judgment rendered that appellant recover of appellee the sum of $63.10, with interest thereon from October 17, 1913, at the rate of 6 per cent, per annum, together with all costs of suit, and that appellee take nothing by reason of his cross-action against plaintiff.

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