¶1delivered the opinion of the court:
¶2Plaintiff below sued to recover the value of two horses placed in the pasture of defendant as an agistor.
¶3The rule of law which defines the duty of an agistor is thus stated in 2 Am. & Eng. Enc. Law (2d ed.) 7:
“ Failure to exercise ordinary care in maintaining reasonably good fences to keep the stock in, would render the .agistor liable for the immediate damage occasioned by the escape of the stock. ’ ’
¶4Plaintiff went to the ranch of defendant for the purpose of getting his horses, paid the pasturage biP to defendant and was told to go to the pasture and take his horses. ' After diligent search the plaintiff could not find his horses and they were never returned to him.
¶5The pasture was enclosed with a wire fence. The condition of this fence determined the liability of defendant in this case.
¶6There was testimony to the effect that the fence was out of repair and in one place down.
¶7The only issue presented to the trial court — the condition of the fence — having been decided by the court in favor of plaintiff upon conflicting evidence, under the well-settled rule of this court, the judgment cannot be disturbed. Affirmed.
¶8Chief Justice Steele and Mr. Justice Caswell concurring.