Foster

Briefly stated, the complaint in this action of claim and delivery alleged that the plaintiff had leased to the defendant a barge of the value of sixteen hundred dollars at a rental of seventy-five dollars per month; that the defendant refused to .pay the second month’s rent, and refused and failed upon demand to return the barge to plaintiff. The defendant in his answer admitted that he had failed to return the barge to plaintiff; but pleaded as a defense to the action that he was prevented from doing so because the barge, while in use upon San Francisco Bay, was driven ashore and wrecked as the result of a sudden, unusual, and extraordinary storm. In this behalf the answer of the defendant further alleged in effect that at the time of the hiring it was understood and agreed that the barge would be used for the purpose of transporting gravel from Napa Creek to the city and county of San Francisco, and would be subject to all of the risks incident to such voyage, and that, at the time of its loss, the barge was loaded with gravel, and being towed by agents of the defendant in a proper and careful manner, and that everything that human skill and agency could do to prevent such loss…