#### W. M. HANES v. SHAPIRO & SMITH.

(Filed 13 January, 1915.)

1. Vendor and Purchaser — Breach of Warranty — Tort—Election—Waiver.

Where upon breach of the seller’s warranty of goods, the purchaser agrees with him that he may take them and make them come up to the quality and kind they were warranted to be, and the seller accordingly and for the purpose takes the goods into his possession, the purchaser, by the new agreement, waives his right of action upon the breach of the warranty.

2. Same — Inconsistent Remedies.

One who is put to his election to choose between inconsistent remedies is bound by his choice of one of them to relinquish his right of action upon the other.

3. Vendor and Purchaser — Breach of Warranty — New Consideration — Bailment — Negligence.

The purchaser of a sideboard received and paid for it, and thereafter, discovering defects therein, agreed with the seller that the latter should take the property back and make it as warranted, and while the article was in the possession of the seller for that purpose it was destroyed by fire. Meld, the title to the property remained in the purchaser, and its return to the seller made the latter a bailee for hire, upon a mutual consideration moving between the parties in adjustment of the matters in dispute arising from an alleged breach of the seller’s warranty of the sideboard, making him liable to the purchaser for ordinary negligence in not taking care of the article, under the rule of the ordinarily prudent man. The law relating to the mutual rights of bailor and bailee, with respect to negligence, benefits received, and the care required by the latter under varying circumstances, discussed by Walkek, J.

*254. Bailment — Destruction of Property — Negligence—Damages.

Ordinarily tlie liability of a bailee depends upon tbe question of bis negligence, where tbe property bas been destroyed' while in bis possession; and when bis negligence bas been properly established, be is liable in damages to tbe bailor for tbe full amount thereof, when tbe latter is not in fault.

5. Bailment — Damages—Negligence—Proximate Cause.

Negligence of a bailee, which makes him responsible in damages to tbe bailor for tbe loss or destruction of the property, is defined generally as a breach of bis duty to exercise commensurate care under tbe surrounding circumstances, and to be actionable, it must proximately result in tbe injury for which damages are claimed. Slight, ordinary, and gross negligence discussed and defined by Walker, J.

6. Bailment — Negligence—Trials—Evidence—Prima Facie Case — Burden of Proceedings — Burden of the issue.

A bailee of goods is required to deliver the goods to the bailor in tbe condition they were in when received, or in accordance with tbe terms of the bailment, and if he fails to do so, he is liable unless be can show that bis inability arises without fault on his part; and while tbe burden of. proof continues to rest on the bailor in bis action to recover damages for injury to or tbe destruction of the property while in the bailee’s possession, a prima facie case is made out against tbe latter by showing the fact of bailment and that the property had not been redelivered accordingly, which'may be met by tbe defendant’s showing he was not in default ; whereupon tbe duty of going forward again shifts to tbe plaintiff; for this duty may rest first on one party and then on the other, while the burden of establishing the issue in his favor continues throughout with tbe plaintiff.

Appeal by defendants from Harding, J., at May Special Term, 1914, of Foestth.

Tbe plaintiff alleges tbat be purchased a lot of furniture from tbe defendant with a warranty for twelve months against defects as to workmanship and material. Among this furniture was a sideboard, for which he paid about $177. The furniture was delivered, and about thirty days after its receipt, and before the defects appeared, the plaintiff, paid the purchase price for all of -the furniture. Within a year, however, defects, both as to workmanship and material, did appear in one piece of the furniture purchased, viz., the sideboard. The defendants were notified of these defects, and demand was made upon them to make the sideboard conform with their warranty. The defendants requested the plaintiff to ship the sideboard to their factory at Norfolk, Yirginia, where it could be repaired. In accordance with their request, the sideboard was shipped to them, in order to give them an opportunity to remedy the defects, and while they were at work on the furniture to remedy the same, their place of business, together with the sideboard, was totally destroyed by fire. The plaintiff then made demand upon them for his *26property, or that they should pay him back the amount of money which he had paid them for this defective piece of furniture. This demand was refused, and the plaintiff brought this action for money had and received to his use. He contends that this furniture was bought with express warranty as to workmanship and material, that there was a breach of the warranty, in that this sideboard was defective, both as to workmanship and material; that the defendants, upon his notice to them of the defects and the demand of plaintiff that it be repaired, requested that the sideboard be returned to them in order that they might have an opportunity to remedy these defects and make good their warranty, and while it was in their possession it was destroyed by fire. Upon these facts he contends that he had his election to sue in tort, or to waive the tort and sue on contract for money had and received. He elected to sue on the warranty, and alleges that the defendant is indebted to him for money had and received to his use to the amount which he had paid for this side-. board. He says that the contract of warranty was a collateral undertaking on the part of the seller as to the quality of the subject of sale, and upon a breach of this collateral undertaking a cause of action arose to the plaintiff, and when the property was returned to the defendants, in compliance with plaintiff's demand and at their request, in order to permit them to comply with their contract and to make good their warranty, the plaintiff did not in any wise waive his rights to sue on the warranty, or, at his election, to sue for money had and received.

The following issues were tendered by the defendants, as the proper and only ones arising in the case:

“1. Is the plaintiff damaged by the negligence of the defendant in the loss of the sideboard in controversy ?

“2. What damage is plaintiff entitled to recover ?”

The court declined to submit these issues, and defendants excepted.

The jury rendered the following verdict upon the issues submitted by the court, and to which defendants duly excepted:

1. Did the defendants warrant the sideboard in question to be of first-class material and constructed in a workmanlike manner, as alleged? Answer: “Yes.”

2. Was there a breach of said warranty by, the defendants ? Answer : “Yes.”

3. What damage, if any, has the plaintiff sustained by reason of. such breach? Answer: “$177.”

Judgment and appeal by defendants.

P. Frank Ilanes and L. M. Swink for plaintiff.

Alexander, Parrish & Korner for defendants.

*27Walker, J.,

after stating tbe facts: Tbe case was tried below upon tbe wrong- theory. When tbe sideboard was found to be defective in construction and material, tbe plaintiff could bave stood upon bis rights, under tbe warranty, and recovered bis damages. But it was a question of election, and be chose to waive bis right to sue upon tbe express covenant of warranty, and to allow this defendant to make good bis warranty and to satisfy any damages that might home been recovered thereon, by repairing or restoring tbe sideboard so as to make it correspond with tbe thing warranted. It is such a manifest principle of justice and right, that a -man, even in the ordinary affairs of life, should not be allowed to blow hot and cold in the same breath and to avail himself of inconsistent rights, that tbe attempt to establish tbe truth of the proposition would be worse than useless. To use a very suggestive phrase of Herbert: “Wouldst thou both eat thy cake and have it?” You cannot take two chances, hoping that if you lose tbe one, you may gain tbe other. The moral law forbids it and tbe technical law (as it is sometimes flippantly called) is also prohibitive of such a course. He cannot give up his warranty for a consideration, and afterwards take it back. Where a person has presented to him an election of inconsistent remedies, be must, once for all, choose between them; and is bound by his choice so made. When tbe plaintiff sent the sideboard to defendant for reparation, so that it should be made to answer the warranty, he thereby waived all right to sue upon the covenant — provided, however, that defendant, being entitled to a reasonably sufficient time and opportunity to do the work and return the article, so as to discharge himself from blame, bad really used due .diligence and care, under the circumstances of the case, to comply with his undertaking to restore tbe sideboard to such a state that it would fulfill his contract. Plaintiff contends that there was no waiver of bis right to sue upon the warranty by returning the sideboard for repairs, but’we think that it is such a clear and unmistakable waiver, upon the conceded facts, as to require no further argument from us to establish this position. He received the sideboard, paid for it, and the title passed thereby from defendants to him. It was not revested in defendants by the return of the sideboard for the purpose of restoration, and we .think the learned and able counsel of plaintiff virtually submitted to this view of tbe transaction when asked tbe question if sucb a cbange’of title bad taken place. If be did not, it is in law correct, and must, by reason and authority, be so, and could not well be otherwise.

But how does the law stand? We will attempt briefly to review it, with special reference to the facts of’ this case. According to the classification of tbe civil law, bailments are of six kinds: (1) Depositum, which is a delivery of goods to be kept for the bailor without recompense. *28(2) Mandafum, which, is a delivery of goods to have some service performed about them by the bailee without recompense. (3) Commoda-tum, which is a gratuitous loan of goods to be temporarily used by the bailee, and returned in specie. (4) Mutuum, which is a delivery of goods, not to be returned in specie, but to be replaced by other goods of the same kind. At common law such a transaction is regarded as a sale or exchange, and not a bailment. (5) Pignus. A pignus, pledge, or pawn, is a delivery of goods as security for some debt or' engagement, accompanied by a power of sale in case of default. (6) Locatio. A locatio, or hiring, is a bailment for reward, and may be of four kinds: (a) Locatio rei, or the hiring of a chattel for use. ■(b) Locatio operis faciendi, or the hiring of work and labor, (c) Ijocatio custodies, or the hiring of care and services to be bestowed on the thing delivered. (d) Locatio operis mercium vehendarum, or the hiring of the transportation of goods.

The above classification is unnecessarily refined. The' rights and liabilities of the parties to a bailment, as we shall see, depend primarily upon which one is to receive the benefits of the transaction. The lawr justly imposes a stricter liability upon- the one who is to receive the whole benefit of the bailment than upon one who entered into it solely out of good-will and for the accommodation of the other party. Accordingly, bailments -may be. divided with reference to the party who is to receive the benefit into three classes, which will include all the principles of the law of bailments. The various kinds of bailments in the Roman classification group themselves naturally under these three heads, and it may be convenient to sometimes use the Roman terms to indicate subdivisions. The classification we adopt is:

The rights and liabilities of the parties to a bailment, as we have said, depend primarily upon which party the bailment is intended to benefit. Bailments may, therefore, fall within these divisions:

(a) Bailments for the bailor’s sole benefit, including (1) Depositum and (2) Mandatum.

■(b) Bailments for the bailee’s sole benefit, including (1) Gommo-datum.

(c) Bailments for mutual benefit, including (1) Pignus and (2) Locatio.

These views are well supported by the authorities, and especially by Hale on Bailments, lip. 36 and 37. •

The transaction in this case more nearly resembles the locatio cus-todies of the civil law, or the hiring of care and services to be bestowed on the thing delivered, and comes under the head of Locatio in the last classification given above.

*29The rights and liabilities of the parties to a bailment are primarily determined by the contract and bailment purpose. The following principles, however, are common to all classes of bailments: (&) The subject of the bailment must be personalty. (b) There must be a delivery, actual or constructive, of the property, (c) There must be a voluntary acceptance by the bailee, (d) There must be competent parties. (e) Possession by the bailor is considered as sufficient title to support a bailment. (/) The right of property remains in the bailor, and he may maintain an action to protect it. (g) The bailee is estopped from disputing that the bailor had title at the time the goods were delivered. (h) The bailor must not expose the bailee to danger without warning. (i) The bailee must exercise due care.

The parties may enlarge or diminish their liability by special contract, provided, first, that the contract is not in violation of law or against public policy; second, that the liability of the bailee is not to be enlarged or restricted by words of doubtful import, and, third, that the bailee must exercise perfect good faith at all times. He is always liable for his positive wrong or fraud. It is further required that the bailee must deliver up the property uninjured at the termination of the bailment, or else excuse his inability to do so. Hale on Bailments, pp. 10 and 11. Commensurate care, or due care under the circumstances, is the measure of the bailee’s obligation, in the absence of express contract, no matter what may be the object of the bailment.

In all ordinary classes of bailment losses occurring without negligence on the part of the bailee fall upon the bailor. The bailee’s liability turns upon the presence or absence of negligence. In some exceptional hinds of bailments, as in the case of carriers or innkeepers, 'there is a special liability, approximating that of an insurer, but, generally speaking, there can be no recovery against a bailee f©r loss or damage to the property, in the absence of negligence.

In Coggs v. Bernard, Lord Holt distinguished as to bailments and divided them into three grades or degrees of negligence. Said he: In bailments for the sole benefit of the bailor, the bailee will be liable only for gross negligence; in bailments for the mutual benefit of both parties, he will be liable for ordinary negligence; in bailments for the exclusive benefit of the bailee, he will be liable even for slight negligence. This distinction and the consequent distinction into three degrees of negligence has been perpetuated in text-books and decisions, until -it has become so interwoven with the law of bailments that it is impossible to discard it, though it has been frequently, severely, and perhaps, in some respects, justly criticised. It certainly may be misleading, if not properly considered. Negligence may be defined generally as the breach of a duty to exercise commensurate care, and to be actionable it must proxi*30mately result in damage. Brewster v. Elizabeth City, 137 N. C., 392. Any omission of the duty to exercise due care, and resulting in damage, ought to impose liability. There is no such thing as excusable negligence which causes a wrong. It is said that gross negligence is “ordinary negligence with a vituperative adjective.” It would, perhaps, be more logical to apply the adjective of comparison to the term “diligence” rather than to the correlative term, “negligence.” This conception of ordinary and gross negligence seems to have had its origin in the law of bailment, and we may illustrate here. Thus, where the exercise of great diligence is the duty imposed, a slight omission of care — i. e., slight negligence — will be regarded as a failure to exercise commensurate care. Where only slight diligence is the measure of duty, slight omissions do not involve a failure to exercise commensurate care, and therefore there is no negligence. In such a case it is very misleading to say that there is slight negligence, but no liability. When only slight diligence is required, there must be a gross omission of diligence — an omission of almost all diligence — in order to involve a failure to exercise commensurate care, or, in other words, to constitute negligence; for commensurate care in such a case is slight care. Nevertheless, the terms “slight negligence,” “gross negligence,” and “ordinary negligence” are convenient terms to indicate the degree of care required; but, in the last analysis, the care required by the law is that of the man of ordinary prudence. This is the safest’and best rule, and rids us of the technical and useless distinctions in regard to the subject. Ordinary care being that kind of care which should be used in the particular circumstances, is the correct standard in all cases. It may be high or low in degree, according to circumstances, but is, at least, that which is adapted to the situation.

It remains to show what is meant by the terms “slight,” “ordinary,” and “great or extraordinary” diligence or negligence — a task which is by no means an easy one. According to Judge Story, “Slight diligence is that which persons of less than common prudence or, indeed, of any prudence at all, take of their own concerns.” By Sir William Jones, slight diligence is to be considered to be “the exercise of such diligence as a man of common sense (and prudence), however inattentive, takes of his own concerns.” It is probably safe to say that the diligence shown in their own affairs by men careless in their habits, and not necessarily prudent by nature, but of ordinary intelligence, is slight diligence. Want of such diligence constitutes great or gross negligence, which has by some been held to amount to fraud, or to be evidence thereof. It may be safely stated, however, that gross negligence,-except under unusual circumstances, is not equivalent to fraud, nor does it necessarily raise a presumption of fraud. Ordinarily, diligence may be said to be that displayed in the management of their own affairs by the average busi*31ness or professional men met with in daily life — men who have the usual amount of common, practical sense in the management of the necessary details of their business, and who are endowed with ordinary prudence and foresight.

In this view of the question, it will be seen that what constitutes ordinary diligence is dependent upon and varies with the facts of each case. In the words of Judge Story, “That may be said to be common or ordinary diligence, in the sense of the law, which men of common prudence generally exercise about their own affairs in the age-and country in which they live.” As defined by Sir William Jones, it is “the care which every person of common prudence, and capable of governing a family, takes of his own concerns.” The standard of ordinary diligence must, of necessity, vary with time and place, since what might be ordinary diligence at certain times a!nd in certain localities might, at different times and at other places, amount to but slight diligence. The influence of custom of business must also be considered in determining what is ordinary diligence, as, in certain trades, disposition may be made of goods by a man of ordinary prudence which, under other circumstances, would certainly be open to the charge of great-negligence. Moreover, what would be the exercise of ordinary care with regard to articles of a certain kind might be far from 'such with regard to those of a different sort. Where one is wanting in the exercise of ordinary care, he is said to be guilty of ordinary negligence. Great diligence is that care shown in the management of his own business by a man of great vigilance and foresight, and of a prudent nature — one given to exerting unusual skill and care upon his business affairs. Want of it is slight negligence. These statements are supported by .Hale on Bailments, pp.'25, 26, and 27.

As has been seen, the obligation to redeliver or deliver over the property at the termination of the bailment on demand is an essential part of every bailment contract. If the bailee fails to do so, he is liable, unless he can show that his inability arises without fault on his part. There is considerable confusion among the decisions in regard to the burden of proof in cases where a bailee is sued for a loss or injury. A line of decisions hold that in cases founded on negligence the burden of proving it affirmatively rests on the plaintiff throughout, and that, when a. bailee is sued for a negligent loss or injury,-mere proof of the loss or injury does not alone make a prima facie case. But the better opinion, supported by the weight of authority, holds that while the burden_of .proving negligence rests upon the plaintiff, and does not; shift .through-, out the trial, the burden of proceeding does shift, and that .where the plaintiff~hal~iliówn that the-bailee received the property in good condition^and^failed to return it, or returned it. injured, he has made out a prima facie ease of negligence,___“When he has shown a situation which *32could not bave been produced except by tbe operation of abnormal causes, tbe onus rests upon defendant to prove tbat tbe injury was caused without bis fault.” Bes ipsa loquitur. Unless tbe bailee overcomes tbis prima facie case by satisfying tbe jury tbat tbe loss or damage was consistent witb tbe absence of fault on bis part, tbe plaintiff may prevail. Where tbe bailee makes sucb showing, however, as where it appears tbat tbe property was stolen or injured by vis major, tbe burden of proceeding shifts back to tbe plaintiff, and be must show tbat tbe bailee was negligent in exposing tbe property to risk of barm, or in failing to avoid tbe danger after it was known. In other words, tbe weight of tbe evidence may be in favor first of one party and then tbe other, but tbe burden of establishing tbe issue in bis favor rests on plaintiff throughout. Hale on Bailments, pp. 31 and 32.

We bave referred to Mr. Hale’s excellent treatise on bailments very liberally, because tbe law is stated by him so clearly and seems to haye sucb a direct bearing upon tbe facts of tbe case as to make tbe reference very apposite, though a little full. Tbis is somewhat of a new question in tbis Court, and must be treated at some length in order to state fully tbe essential principles. It bears, though, a close analogy to similar doctrines applicable in other branches of tbe law. Substantially tbe same views are expressed by other text-writers on tbe subject, sucb as Van Zile on Bailments and Carriers, sec. 26 et seq.j Story on Bailments (9 Ed.), cb. 1, secs. 1 to ,40; Scbouler’s Bailments and Carriers, Bart I, secs. 1 to 17; 5 Cyc., pp. 162, 163, 164, and 165. It is said in Cyc., supra, tbat tbe Roman classification of bailments is usually supplanted by a division witb reference to compensation, under which bailments are divided into three binds only: (1) bailments for tbe benefit of both parties; (2) bail-ments for tbe sole benefit of tbe bailor; (3) bailments for tbe sole benefit of tbe bailee, and tbe locatum, or what is denominated generally as a bailment for hire. Judge Story, at section 426 of bis 9tb Ed., states that if, while tbe work is being done on a thing belonging to tbe employer, or after it is finished, but before it is delivered to tbe employer, tbe thing perishes by internal defect, by inevitable accident, or by irresistible force, without any default of tbe workman (as Potbier bolds), tbe latter is entitled to compensation to tbe extent of tbe value of tbe labor actually performed on it, unless bis contract import a different obligation; for tbe maxim is, Bes perit domino. Potbier, supra, further insists tbat if tbe workman has employed bis own materials, as accessorial to those of tbe employer, be is in like manner entitled to be paid for them, if tbe thing perishes before it is completed. Tbe same doctrine seems to bave been promulgated in tbe Roman law, and was applied to tbe case of a bouse accidentally thrown down by an earthquake, while in building; and tbe loss was held to fall wholly on tbe owner. Tbe following seems *33to have been deduced by Mr. Bell in bis treatise on tbis subject as tbe true rules on tbe subject: (1) If tbe work is independent of any materials or property of tbe employer, tbe manufacturer bas tbe risk, and tbe unfinished work perishes to him; (2) If be is employed in working up tbe materials, or adding bis labor to tbe property of tbe employer, tbe risk is with tbe owner of tbe thing with which tbe labor is incorporated; (3) If tbe work bas been performed in such a way as to afford a defense to tbe employer against a demand for tbe price, if tbe accident bad not happened (as if it was defectively or improperly done), tbe same defense will be equally available to him after tbe loss. In tbis last point, Potbier also agrees with him, and be seems supported by tbe Eoman law. Story on Bailments, sec. 426; 1 Bell Comm. (4 Ed.), 392, 394, and 5th Ed., pp. 456, 458.

But those rules are, of course, subject to tbe qualification that tbe bailee -is bound, in all proper instances, when intrusted with tbe bailee’s property, to exercise due care with respect to tbe subject. It is very clear that, at common law, if tbe thing of tbe employer, on which tbe work is done, and for which materials are furnished, is by accident, and without any fault of tbe workman, destroyed or lost before the work is completed, or tbe thing is delivered back, tbe loss must be borne by tbe employer, and be must pay tbe workman a full compensation for tbe work and labor already done and materials furnished, although be bas derived no benefit therefrom. Thus, where a ship was accidentally destroyed by fire while she was in tbe dock of a shipwright undergoing repairs, it was held that tbe shipwright was entitled to full compensation for all his tuorlc and labor done and materials found and applied thereto before tbe loss. But tbe general rule may be controlled by a special agreement of tbe parties, as in tbis case, or by general usage and custom of tbe trade. Scbouler remarks that tbe fundamental idea of our whole subject is that one whose pains are to go wholly unrewarded ought to be tbe most lightly bound — a maxim which, however distasteful to tbe strict moralist, is thoroughly consonant with tbe teaching of tbe common law. And since no nice gradation by tbe amount of recompense is here attempted, bailments at common law may well be grouped under these three beads, as Judge Story himself bas admitted: (1) Those for tbe sole benefit of the party on tbe bailor’s side; (2) Those for tbe sole benefit of tbe party on tbe bailee’s side; (3) Those for tbe benefit of both parties. In tbe first two instances tbe benefit designed is unilateral; in tbe third, bilateral or -reciprocal.

"We are to bear in mind that it is not tbe actual issue of tbe undertaking, btjt its intent, by which recompense is to be tested. Under such a classification, tbe foregoing titles fall readily into place; and tbe parade of Eoman names imposes less readily upon tbe reader who reflects *34that there is much the same variety of transactions capable of performance, whether one is to get his reward or serve gratuitously. Schouler’s Bailments and Carriers, sec. 14, p. 15. Under the title, “Negligence or Diligence,” with regard to bailments, Yan 2ile, at section 34, thus states the rule in a practical way: “Coupled with the question of benefit is the question of negligence or diligence; for the receiving of benefits brings the requirement of diligence, and the absence to a certain extent excuses negligence. If, for example, the bailee is to receive no compensation and no benefit, and the bailment relation is solely for the benefit of the bailor, a depositum or a mandatum, the law does not require of the bailee so high a degree of diligence as it would in case of commodatum, where the benefit is entirely for the bailee, and no benefit whatever to the bailor. And so the duties and liabilities of the bailee, when there is no special contract, depend almost entirely upon the benefit received, and the diligence he has shown or the negligence he is guilty of. If the bailment, for example, is for the sole benefit of the bailor, the law only requires of the bailee slight diligence, and holds him liable for gross negligence. If for the sole benefit of the bailee, then he is held to high diligence, and liable for slight negligence; if for the benefit of both bailor and bailee, ordinary diligence and ordinary negligence. This is the correct summing up of the doctrines.

Let us apply this rule to our facts. Defendant had given a warranty as to quality of workmanship and material. Plaintiff says he breached it, as the sideboard proved to be defective; but defendant denied this allegation. The parties were, therefore, in controversy, and in order to adjust it, they agreed that, instead of plaintiff suing on the warranty, defendant should place the sideboard in the condition before warranted by him. The settlement of the dispute in this way was sufficient to make the consideration material and reciprocal between the parties, and sufficient to support the contract, just as, at common law, the payment of a part of a debt upon a promise to release or forgive the balance was nudum pactum, but if there was dispute between the parties as to the debt or the amount of it, this constituted a sufficient consideration to support the release of the balance upon a settlement. York v. Westall, 143 N. C., 276.

The bailment was, therefore, for the benefit of both parties, and not solely for that of the bailor or bailee, and consequently the bailee was bound to the use of ordinary care in respect to the thing bailed to him. While the burden was upon the bailor to show the bailee’s negligence, the latter knew better than the bailor how the accident happened by which the property was destroyed, or should know, and is called upon to offer proof that the destruction arose from the operation of forces beyond his control or while he was exercising ordinary care for the pres*35ervation of tbe property and in tbe completion of tbe work upon it; not tbat tbe burden shifts to him, upon proof of tbe loss, wbicb is prima facie evidence of negligence, but tbat be should satisfy tbe jury as to bis due care or take tbe risk of an adverse verdict. Wintringham v. Hayes, 144 N. 9Y., 1. Tbe prima facie case arising from bis failure to return tbe property, and its destruction, does not forestall tbe verdict, as tbe burden of proof still rests upon tbe plaintiff and be must ultimately satisfy tbe jury of tbe existence of negligence; but defendant takes bis chances on tbe verdict if be fails to go forward with proof and thereby prevents tbe jury from deciding according to tbe prima facie case; not tbat they are bound to do so, as tbe circumstances raising it may satisfy them, without further proof, tbat in fact there was no negligence, but tbat they may do so, and if they should so view tbe evidence, tbe defendant would lose. S. v. Wilkerson, 164 N. C., at p. 436, and cases cited therein; Sweeney v. Erving, 228 U. S., 233.

This Court said in Henderson v. Bessent, 68 N. C., 223: “Tbe bailment was for tbe benefit of tbe parties; so upon the settled distinction tbe bailee is only liable for ordinary neglect, wbicb does not embrace a case of accidental destruction by fire, without default on tbe part of tbe bailee.” Tbat is tbe principle under wbicb this case must be tried, and we cannot adopt tbe defendant’s contention tbat it was a gratuitous bailment on bis part, and be is liable, therefore, only for gross negligence, or, conversely, bound to tbe use of slight care. Plaintiff released tbe cause of action on tbe warranty, in exchange for bis promise to repair tbe sideboard, and tbe benefit be thereby derived furnished tbe consideration for bis undertaking as bailee.

It would seem tbat, by tbe common law, in such a case as this one tbe workman, regardless of any usage of trade, would not be entitled to any compensation for bis labor and material, and tbat the rule would apply tbat tbe thing should perish to tbe bailor, and tbe work and material to tbe mechanic or bailee, if tbe latter has performed bis duty by exercising tbe care required of bim in tbe possession and preservation of tbe thing bailed to bim for hire. Story on Bailments (9 Ed.), sec. 426b; Gillett v. Mawman, 1 Taunton, 131.

Tbe judge should have tried tbe case upon tbe issue tendered by tbe defendant, and there was error in refusing to do so.

New trial.