PATRICK WELCH, Appellant, v. EMIL MOHR, Respondent

[No. 12710. Department Two. February 10, 1892.] PATRICK WELCH, Appellant, v. EMIL MOHR, Respondent. Bailment — Hiring of Conveyance — Driving beyond Agreed Destination— Liability of Bailee for Loss — Conversion,—If a horse and buggy are hired to be driven to a specified place, a driving of several miles beyond that place is in violation of the bailment, and the bailee is liable as for a conversion, in case of death of the horse, or failure to return it, as the result of such improper driving. Id.—■ Agreement — Place of Destination — Conflicting Evidence. — In an action by a livery-stable keeper to recover damages for the loss of a horse hired by the defendant, and alleged to have been driven by him several miles beyond the place to which he had promised to go, where it clearly appears from the evidence that the minds of the parties did not meet as to any particular place to which the horse was to be driven, and the evidence on that point is substantially conflicting, a verdict in favor of the defendant will be affirmed. Appeal from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. The facts are stated in the opinion. T. H. Laine, for Appellant. W. B. Hardy, for Respondent. [MAJORITY — Fitzgerald, C. The Court.] Fitzgerald, C. This action was brought to recover damages for the loss of a horse hired by plaintiff to the defendant, and alleged to have been driven by him several miles beyond the place to which he had promised to go, and while being so driven by the- defendant the horse died. The defendant answered by a general denial. The case was tried by a jury, resulting in a verdict and judgment for defendant for costs. The case comes here by appeal from the judgment and the order denying plaintiff’s motion for a new trial. The only question presented for decision by this appeal is, whether the horse and buggy were let to the defendant by plaintiff to be driven to a specified place and return. If so, and the horse was a riven to a point beyond that place, such driving was in violation of the bailment and an unlawful conversion, and defendant’s failure to return the horse would entitle the plaintiff to recover the value thereof in damages. It is claimed by appellant, who, it appears, was a livery-man having horses and vehicles to let for hire, that the letting was to drive the horse to Mountain View and return, and no farther, and that, in violation of the terms of the contract, defendant purposely drove to a point five or six miles beyond that place, and on the return drive the horse died, and was never returned to plaintiff or paid for. It is clear from the evidence that the minds of the parties did not meet as to any particular place to which the horse was to be driven, and as the evidence on that point, which is the only one involved in this appeal, is substantially conflicting, the verdict, under the well-established rule of this court, will not be disturbed. It therefore follows that the judgment and order should be affirmed. Vanclief, C., and Temple, C., concurred. The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.