Winston v. Taylor

RichaRDSON, Judge, delivered the opinion of the court. The defendant and his partners, who kept a “ ranche” in California', received of the plaintiffs, in September, 1850, eight horses and seven mules to be herded on their ranche, for which the plaintiffs were to pay three dollars per head each month. By this contract the defendant did not insure the safety of the stock, but was only bound to take ordinary and reasonable care of it, and was only responsible for ordinary negligence. (Story, Bail. § 443.) The amended petition on which the action was tried, after setting out the contract and its legal effect, averred that though the plaintiffs demanded the horses and mules of the defendant, only sis of the horses and four of the mules were delivered, and that the others were lost by reason of the negligence and improper care of defendant. The defendant admitted that some of the horses and mules were lost, but denied that they had been demanded by the plaintiffs, or that they were lost by the carelessness or negligence of the defendant. The only issue tendered by the answer was whether the property was lost by the defendant’s negligence. No new matter was introduced or relied on, and there was nothing to warrant the admission of Claybrook’s testimony, or the giving of the fifth and sixth instructions asked by the defendant. The defence made for the first time at the trial amounted to a release, which was inadmissible, if for no other reason than because it was not set up in the answer. The defendant could not absolve himself, without the consent of the plaintiffs, from the liability the contract imposed on him and his partners, by retiring from the firm. (Holden v. McFaul, 21 Mo. 215.) But as the stock was not placed [86] in the defendant’s custody for any definite time, and tbe plaintiffs could have removed it at their pleasure, the defendant on, the other hand, could have required the plaintiffs to take it away, by giving them reasonable notice; and, in my opinion, if Taylor had advised them that he intended to give up the business and leave the country, and had requested them to remove their stock, there would be no hardship in holding, if they permitted it to remain after the ..expiration of a reasonable time within which they could have taken it away, that they looked to the other partners to -take care of their property, and discharged him from the contract. Such a defence, however, ought to be clearly made out, not only as to the request, but that reasonable time was given after notice for the removal of the stock, and that a cause of action against him had not already accrued. There is, perhaps, no absolute rule for determining in every case upon whom the burden of proof rests, whether upon the bailor, to establish the negligence by which the property was lost, or upon, the bailee, to show that the loss has been without any neglect on his part. Sometimes it depends on the form of the action and upon the stage of the cause at which the question arises. In an action of trover, the plaintiffs may rely on a demand and refusal of the property, and thus put the opposite party on the defence ; but in an action of assumpsit, or an action on the case founded on negligence the plaintiff must make out a prima facie case as he charges it; for it is a general common law principle that every person is presumed to do his duty until the contrary is shown. (Story Bail. § 213, 278,410, 454.) It is also said that when the thing bailed is lost or injured, the bailee is bound to account for such loss or injury; but when this is done, the proof of negligence or want of due care is thrown on the bailor. (1 Parsons on Cont. 606.) In this case, however, the question did not arise, and there was no propriety in giving the instructions asked by either party on the subject, for the pleadings admitted the bailment and the loss of the property, and both parties gave evidence bearing on the subject of [87] negligence, and, as the whole case was before the jury, the only question to be decided was whether the loss resulted from the want of ordinary care and attention. The demurrer was properly sustained to the original petition, for, as the defendant never appeared to the suit in California, the notice by publication was insufficient to authorize an action in this state on the record of the judgment. (Stonestreet v. Shannon, 1 Mo. 375; Sallee v. Hay, 3 Mo. 84 ; Smith v. Ross, 7 Mo. 463.) Judge Scott concurring, the judgment will be reversed and the cause remanded. Judge Napton absent.