Rey v. Toney

• Decision Date: 31 March 1857
• Citation: 24 Mo. 600
• Parties: REY, BY HIS NEXT FRIEND, Respondent, v. TONEY, Appellant.
• Court: Missouri Supreme Court

24 Mo. 600

REY, BY HIS NEXT FRIEND, Respondent,

v.TONEY, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. An agister of cattle cannot be rendered liable for the loss of a horse committed to his charge upon the mere proof of the loss of the horse; negligence must be shown.

Appeal from St. Louis Law Commissioners' Court.

J. B. Goff, for appellant.

L. M. Shreve, for respondent.

RYLAND, Judge, delivered the opinion of the court.

The finding of the facts by the court in this case will not warrant the judgment rendered thereon. The following is the finding: “The court finds from the evidence that in the spring of the year, 1855, the defendant was an agister of cattle near the city of St. Louis; that the plaintiff, by his agent, delivered the horse mentioned and described in his petition to the defendant, to be by the defendant pastured and cared for, at the rate of two dollars per month during the time the defendant should pasture said horse; that the plaintiff paid to the defendant two dollars at the time he delivered the horse to the defendant in advance for the first month; that some three or four weeks afterwards the plaintiff, by his same agent, demanded the horse from the defendant at the place where the horse was left, but did not receive him; that prior to the demand the horse had either been taken away by some one, or had broken out of defendant's inclosure and strayed away; that the said horse was the property of the plaintiff, Christopher Rey, and at the time he was delivered to the defendant was of the value of one hundred and fifty dollars. The court does not find that said horse was delivered to the defendant with the express understanding, and received by the defendant with the condition, that defendant was not to be in anywise responsible for the safe keeping of said horse; nor that said defendant under a contract suffered him to feed upon the grass growing upon his land, without any stipulation for care or attention on the part of defendant; nor that said horse escaped or was removed from defendant's premises without the knowledge or consent of defendant. Upon the facts as found, the court declares the law to be that the plaintiff is entitled to recover, and that the measure of damages is the value of the said horse at the time he was delivered to the defendant, with interest from the time of the demand made for the same.”

Now an agister of cattle is not an insurer of the safe keeping, and is answerable only in case of negligence. In the case of Broadwater v. Blot, Holt's Rep. 548, the defendant was a farmer, and had received the plaintiff's horse to agist at a stated price. The horse had strayed out of ...