¶1delivered the opinion of the court.
¶2The cattle having been bailed by Meegan to Goodfellow, to be pastured by him for hire, — in this suit for the hire, it having been charged and proved that some of the cattle were not returned by Goodfellow to Meegan, it was incumbent upon Goodfellow’s executors to show that the loss of the cattle was not occasioned by his default. In other words, that he had used the degree of diligence required of him by his contract. The degree of diligence would depend upon the terms of the contract; but, whether it be ordinary or extraordinary, it was the burden of the plaintiffs to show that it was exercised. By the refusal of all of the instructions asked by the defendant, the court below seems to have assumed that Goodfellow was in no event responsible for the safe keeping of the cattle, even though they might have been lost by his gross negligence. This was error.
¶3As to the proof of what were the terms of the contract, they might be proved by direct evidence; or, if it be proved that the contract was made so general as not to specify the particular terms from which the liabilities of the parties result, perhaps evidence might be given of a common understanding and usage, known to the defendant, that such general contracts implied certain specific terms. As the evidence of custom was given in this case, it was improper. It was only that it was not the custom to make certain contracts which were not illegal, and which the parties were competent to make. Such testimony is no evidence that a contract of that unusual character had not been made in this instance.
¶4Judgment reversed and cause remanded.