majority"> Chief Justice Hise

delivered the opinion of the court.

J. Robinson, the plaintiff, sued F. W. Jackson in an action upon the case to recover the value of his Jack, Dallas, then in the possession of the defendant, upon a contract for the mutual benefit of the parties, alledging, in his declaration, that the defendant negligently and improperly fastened the Jack with a halter to the limb of a tree, in a place where he might be excited or frightened by the presence or sight of other stock passing, and that the defendant left him, leaving no one in charge to watch him, and, if necessary, to protect him from injury; and that the Jack, in strugling to get loose, broke the limb to which he was tied, dashed his head against the trunk of the tree, and was so injured that he died instantly. The defendant demurred to the declaration, and plead not guilty, and there was a trial and verdict and judgment in favor of the plaintiff for the sum of $250 damages, and cost of suit.

The demurrer to the declaration was properly overruled. The several counts therein each set forth, substantially, a good cause of action, and it was not necessary that the precise terms or consideration of the contract between the parties, by which the defendant acquired the possession and use of the Jack for the season, should have been stated; enough was set out to show that it was an arrangement made for the mutual benefit of the parties, so as to furnish the ground upon which the defendant’s responsibility would rest, should the proof correspond with the facts as laid. The second and third counts each presented appropriately enough a state of fact which, if proved would make the responsibility of defendant depend on different principles.

The proof having been heard, it seems that the court refused to give the instructions asked by the attorneys of both plaintiff and defendant, and presented what was supposed to be the law of the case in instructions No. 1, and No. 2, which were given in lieu of the others. The rejected instructions are *7not copied in the record, so that it cannot be assumed that the court below erred in refusing to give them; but the two instructions that were given were miss-leading, and did not present, accurately, the principle of law upon which the plaintiffs right to recover depended.

1. Bailee in possess ion of property for joint profit and advan t a g e of himselfandbail- or, in case of injury or destruction thereof, is not responsible therefor, because he did not take as good care and observe as much diligence, as would be taken or observed commonly by prudent men; such bailee is only bound to use such care and diligence as is usual with the common run of men.orwith men of ordinary discretion in the use of their own property aliter, when the possession was for the exclusive advantage of bailee.

By them the jury were told, in substance, that they •should find for the plaintiff if defendant was guilty of greater negligence than a prudent man -would be ordinarily guilty of, or, in other words,.that unless defendant exercised the same-care and diligence which would ordinarily be exercised by a prudent,-discreet, man, he would be responsible., The law is different as applicable to the facts as av'ered and-proved. In cases where the bailee has possession of property of the bailor, on hire, or under a contract for the profit and advantage of both parties, as in this instance, if the property should be injured or destroyed the bailee would not be responsible, because he did not take as good care, and observe ás much diligence for its preservation, as would betaken and observed, commonly, by prudent men.

This degree of diligence and care could only be required in cases where the bailee had possession of the property of the plaintiff, upon terms exclusively advantageous to himself.

The defendant in this case should not be held responsible to plaintiff for the value of the Jack, Dallas, if he used as much care and diligence for his safety as is usual with the common run of men, or with men of ordinary discretion, in managing their own property.

Therefore, because the court below erred in giving the instructions No. 1, and No. 2' to the jury, because the jury may have been missled thereby, and because the motion for a new trial was erroneously overruled, the judgment of the circuit court is reversed, and cause demanded that a new trial may take place, and for further proceedings in conformity with this opinion.

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