QUAKLES, C. J.
— On the first day of October, the appellant purchased from respondent fifteen head of steers and three cows, and then paid five dollars down, and a day or two afterward paid the balance of the purchase price. The complaint alleges that the respondent failed to deliver one of said steers, and only delivered fourteen steers and the three cows. The answer of respondent denies that respondent only delivered fourteen steers, and alleges that respondent delivered the fifteen steers. This action was commenced in the probate court in and for Bear Lake county, to recover thirty-five dollars, the contract price paid by the appellant to respondent for the steer which was not delivered. The probate court rendered judgment in favor of the respondent, and appellant appealed to the district court, where the case was tried de novo by the court, without a jury, and the district court rendered judgment in favor of the respondent, from which this appeal is brought.
There was no motion for a new trial in the court below, but all of the evidence is contained in the appellant’s bill of exceptions, and it is alleged in said bill of exceptions that said evidence is insufficient to support the judgment, and the specification of insufficiency of the evidence is sufficiently set forth therein. The evidence is brief, and is, in substance, as follows: Appellant went to the ranch of respondent on the first day of October, 1899, to buy some cattle of respondent. Appellant and respondent drove up to, and into, a field where the cattle were grazing, and looked at them, and then returned to respondent’s house. Appellant then asked respondent the price of said cattle, and respondent told appellant that he would take thirty-five dollars per head for the fifteen steers, and twenty-eight dollars per head for the three cows. Appel*271lant agreed to this, paid some money to respondent, and on the next day gave to respondent a cheek for the balance of the purchase price. Appellant, at the time he purchased said cattle, asked respondent if he could keep them a few days for him, and respondent said, “Yes.” About two weeks after the contract of sale, respondent notified appellant to come, or send, and get the cattle. Eespondent left home and went to Salt Lake City, and about a week after such notice appellant sent a boy after the cattle, who received fourteen head of steers and three cows. There is no statement in the pleadings, and no explanation in the evidence, as to what became of the other steer, which was not delivered. Counsel for respondent contends, and the lower court seems to have taken the same view, that the delivery of possession was completed at the time of the sale. We do not think so. As between the parties the sale was consummated, so far as the title was concerned, and the title passed to the appellant, but possession did not pass. In our view of this case the obligations of the respondent are fixed by section 3252 of the Eevised Statutes, which is as follows: “After personal property has been sold and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property without charge, until the buyer has had a reasonable opportunity to remove it.” In order to relieve himself from liability the respondent should have shown, not only that said steer is not in his possession, but that the same was lost, dead, or stolen, without fault on his part. Under the statute, supra, it was his duty to use at least ordinary diligence in the care of said cattle until the possession of the same should be delivered by him to the appellant. This rule requires him to take the same care of said cattle until delivery as a prudent man would take of his own property. Having failed to show such care, and having failed to show that the property was lost without his fault, the judgment should have been in favor of the appellant.
There are no findings of fact in the record, and they were presumably waived by both parties. The evidence does not support the judgment, wherefore the judgment is reversed, and *272the cause remanded for further proceedings in accordance with the views expressed in this opinion. Costs of appeal awarded to appellant.
(March 14, 1902.)
Sullivan and Stoekslager, JJ., concur.