Davis

Action to recover the value, of two horses and one mule alleged to have been delivered by plaintiff to defendant as bailee. Plaintiff had judgment for the value of the mule. The appeal is from an order denying defendant’s motion for a new trial.

The court found that plaintiff delivered to defendant, for its use and benefit, the two horses and mule upon agreement that defendant would care for the same and return them to plaintiff on demand; that plaintiff made such demand and defendant neglected and failed to comply therewith for the reason that the two horses were, without defendant’s fault or negligence, lost in a fire which destroyed its stables wherein they were housed; that the mule was not delivered for the reason that, by direction of the defendant, it, with another mule owned by plaintiff, was by him placed in an unsafe corral with other stock, and while there it was kicked by one of defendant’s horses, as a result of which it died.

There is no evidence whatever showing that defendant agreed to care for the stock, or even that it had charge of them. On the contrary, the uncontradicted evidence is that plaintiff, who owned the team of horses and two mules, was engaged in…