#### W. A. SAWYER v. J. E. WILKINSON.

(Filed 16 September, 1914.)

Bailments — Contracts—Hire of Mule — Negligence—Trials.

An agreement of hire of a mule for plowing purposes for a period of two weeks, at the end of which time the mule should be returned in as good condition as received, is an ordinary bailment determined by the common law relating to bailments for hire; and the bailee, being held to exercise only ordinary care for its preservation and protection, is not responsible for the destruction of the mule and his consequent failure to return it, in the absence of any negligence- on his part. Robertson v. Lumber Oo., 165 N. "0., 4, cited and distinguished.

*498Appeal by plaintiff from Ferguson, J., at Spring Term, 1914, of Hyde.

This is a civil action tried upon these issues:

1. Did the defendant contract with the plaintiff that he would return and deliver to plaintiff at the end of two weeks the mule and harness in as good condition as he received them, as alleged ? Answer: Yes.

2. Did the defendant comply with said contract? Answer: No.

3. "What was the value of said mule and harness? Answer: Mule $100 and harness $5.

4..Was said muíe and harness destroyed by the negligence of the defendant? Answer: No.

The plaintiff tendered judgment for $.105, which his Honor refused and rendered judgment against the defendant for the sum of $5 and costs. The plaintiff excepted and appealed.

S. 8. Marm and Ward & Thompson for ¡plaintiff.

Spencer & Spencer, John Tooley, Ward & O-rimes for defendant.

BROWN, J.

The plaintiff hired a mule to the defendant for plowing purposes for' a period, of two weeks. The evidence tends to prove,, and the jury have found, that the defendant contracted that he would return the mule at the end of two weeks in as good condition as he received it.

Before the expiration of two weeks the mule, together with some of the defendant’s stock; was burned to death by'a fire which burned the defendant’s stables. It is admitted that the fire was not caused by any negligence of the defendant. In refusing to give judgment for the value of the mule, we think his Honor was correct. His Honor gave, judgment for the value of the harness because there is no evidence that the harness was destroyed. The transaction between the plaintiff and the defendant constituted an ordinary bailment, and the contract contained no provisions or conditions which have been violated touching the stabling or the management of the mule. Nor does the contract contain any condition to pay for the mule in case it is not returned.

*499As we view tbe contract, it is an ordinary bailment, determined by tbe doctrines of tbe common law relating to bailments for,hire. It'is not a contract of insurance, and tbe defendant is only liable in case be fails to exercise reasonable care in tbe. preservation and protection of tbe property bailed. There is a class of cases wbicb fastens liability upon tbe bailee upon failure to return tbe property or its value in money. In these cases tbe bailee is regarded as an insurer. Grady v. Schweinler, 15 A. and E. Anno. Cases, 161; Drake v. White, 117 Mass., 10.

Tbe contract of hiring in this case imposes no more upon tbe bailee by its terms than tbe law raises by implication, namely, to return tbe mule, and its return is excused by intervening impossibility to perform, wbicb operates as a release upon tbe obligation of tbe contract in tbe absence of neglect on tbe part of tbe bailee.

An interesting case on all-fours with this, is Seevers v. Gabel, Iowa Supreme Court, 27 L. R. A., page 733, in wbicb it is held that a hirer of personal property under an agreement to return it at tbe expiration of tbe lease in as good condition as when taken, tbe usual wear excepted, is not liable for its loss by fire without bis fault.

Tbe duty assumed by tbe defendant in this case was to exercise ordinary care for tbe preservation and protection of the-mule, and be is chargeable only with tbe liability to tbe plaintiff for loss occasioned by bis failure to discharge such duty. Mallory v. Willis, 4 N. Y., 76; Foster v. Pettibone, 7 N. Y., 433; Stuart v. Stone, 14 L. R. A., 215.

In Seevers v. Gabel, supra, th'e subject of tbe bailment was one “saw rig complete.” Tbe contract was to pay h stipulated rent per month and to return tbe property “in as good condition as it now is.”

In McEvers v. Steamboat “Sangamon,” 22 Mo., 188, a barge was hired by tbe defendant under an agreement that it was “to be delivered in good order, usual wear and tear excepted.” Tbe barge was destroyed by ice without negligence upon tbe part of tbe steamboat company. Tbe Missouri Court held that tbe steamboat company was not liable on tbe contract for tbe non*500delivery of tbe barge in the absence of a finding of negligence.

In Young v. Bruces, 5 Litt. (Ky.), 324, the subject of bailment was a slave, hired until 25 December, 1819, to be returned well clothed and in good condition. The slave was drowned by accident witho.ut fault of the defendants, whereby they were prevented from returning him. The Court held that the defendants were not responsible for the death of the slave without fault of the defendants.

In Harris v. Nicholson, 5 Munf., 483, the contract of bailment was construed and the Court held that the defendants were not liable for the destruction of the property, unless brought about by their own negligence. See also Maggort v. Hansbargar, 8 Leigh, 532; Warner v. Hitchings, 5 Barber, 666; Wainscott v. Silvers, 13 Ind., 497; David v. Ryan, 49 Iowa, 642; Van Wormer v. Crane, 51 Mich., 363; 5 Cyc., 204; 3 Dec. Dig., Bailments, sec. 14, subsec. 1; Miller v. Morris, 40 Am. Rep., 804; Pratt v. Waddington, 21 A. and E. Anno. Cases, bottom page 843; Fortune v. Harris, 51 N. C., 532; Chaffin v. Lawrence, 50 N. C., 179; Henderson v. Bessent, 68 N. C., 224; Heathcock v. Pennington, 33 N. C., 640.

The plaintiff insists that this case is controlled by our decision in Robertson v. Lumber Co., 165 N. C., 4. There is quite a distinction between the two cases. It is true, the Court said that “under the contract, as testified to by Hopkins, it is only necessary to prove a breach of the contract, namely, that the boat was not kept in good repair nor returned in good condition, and there is abundant evidence of that.”

In that case it was found by the jury that the plaintiff’s boat was injured -by the negligence of the defendant and that the plaintiff was damaged to the extent of $250. The boat was not destroyed by an inevitable accident, which ordinary care upon the part of the bailee could have prevented. The boat was returned to the bailee, but in a damaged condition, and that damage brought about by the negligence of the defendant. There is a marked difference between the facts in that case and the one we are now considering.

The judgment of the Superior Court is

Affirmed.