American Preservers Co. v. Drescher

TITUS, C. J. This action is brought to recover $175, agreed valuation of a horse let by the plaintiff to the defendant for hire. So far as I am able to gather from the evidence, the defendant had used the horse in connection with another for about seven weeks, for which he agreed to pay a dollar a day. Some time in August the horse was taken sick, and the plaintiff demanded the return of the horse, pursuant to the terms of the contract. The horse then died, while in the possession of the defendant, which raises the question to be decided. These facts present an ordinary case of bailment for hire. The bailee is required to exercise ordinary care in protecting the property, and the written agreement that he was to deliver the property back on one day’s notice, in the same condition as when received, does not change or enlarge his common-law liability, as he would be required to deliver the property on demand without that express agreement. Fairfax v. Railroad Co., 67 N. Y. 11; Claflin v. Meyer, 75 N. Y. 260. The claim made by the defendant is that the horse died before he was in default under the notice, without any fault on his part, and consequently he is not liable. I am inclined to take his view of the case. The facts seem to bring it within the ordinary rules applicable to cases of bailee for hire. It does not appear that the defendant was guilty of any want of care in using the horse, or that such want of care in any way contributed to his sickness or death, which was clearly the result of natural causes, and no human skill or foresight could have prevented it. The plaintiff claims that the defendant cannot raise the question of his inability to deliver the horse under a general denial; that he should have interposed the defense by the answer. This may be conceded, but no objection was made to the evidence on that ground in the court below. All of the facts were proved- before the court, without an intimation of the question now raised, and we think it is too late now to raise that objection here for the first time. The judgment should therefore be affirmed, with costs. WHITE, J., concurs in the result.