¶1In this action, the court has reported certain facts, as being the result of the whole investigation. On these facts the court found, — i. e., from these facts the court inferred, — that the defendant was guilty; and the question to be settled by this court is, whether the facts which were proved and found tended to prove the affirmative of the issue. The case does not refer the finding of any facts to this court, but simply refers the questions of law arising on the facts reported. In other words, as I have already said, it refers the question whether the court, from the facts found could legally and logically reach the result which it did reach.
¶2The property was not owned by the plaintiff. The contract out of which the defendant's liability, if he was liable, grew, was made by him with the plaintiff. Was the plaintiff, in doing this, acting merely as the servant of the owner of the property? or was he so much more than a mere servant as entitled him to be considered a special owner? and could the court infer this fact from the facts proved? Was he a mere servant, so that his possession was the possession of the general owner? or had he such an independent possession and such a special interest as entitled him to be considered a special owner?
¶3The property was intrusted to his care as bailee, and he had a special interest in the performance of his part of the contract, his compensation most probably depending upon his successful performance of it. If he had been a mere servant, it is probable that his compensation would not depend upon his successful performance of the work. If he did, with such diligence and capacity as he was capable of, the work assigned to him, he would be entitled to his day's wages. *551
¶4So, if the plaintiff in the execution of this work had by his negligent management of his team caused an injury to some third person, the general owner of the property would not be liable for that negligence, while, if he were a mere servant of the general owner, the latter might be so liable.
¶5I think the court might well have found from the facts, that the plaintiff was bailee, with a special interest and accountability.
¶6The authorities cited by the plaintiff abundantly show that this special interest was sufficient to entitle the plaintiff to maintain the action.
¶7It appears to me, also, that the facts tended to show that the defendant had accepted the employment, with the understanding that he was not to deliver the goods without receiving payment at the same time; and that it was through the defendant's neglect of this order that the goods were lost to the plaintiff and to the general owner.
¶8The court, therefore, rightly inferred, from the facts proved, the affirmative of the issue; and there must be judgment on the verdict for the plaintiff.
¶9LADD, J. I supposed the only question raised by the case was, whether the action can be maintained in the name of this plaintiff; and that it can is sufficiently settled by the authorities already referred to.
¶10If it is to be assumed, however, that the further question, whether a verdict for the plaintiff could be legally based upon the facts reported, is before us, I am of opinion that there was evidence to sustain such verdict. That evidence tended to show, in the first place, an undertaking by the defendant not to deliver the package and receipted bill except upon compliance by Abell with the condition and order written on the margin of the bill ("C. O. D. six spring beds"). It also tended to show a breach by the defendant of his obligation and duty as a bailee of goods, such as to make him liable for their loss. The evidence reported seems to be the same in kind, though differing in degree, as though the defendant had thrown the package over the first bridge he crossed, after finding out that the pay for it was to be collected in spring beds instead of money; and it was for the judge who tried the cause without a jury to determine the weight of that evidence.
¶11I agree with my brethren that there should be