Opinion
Department Two
Appeal from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial.
COUNSEL
T. H. Laine, for Appellant.
W. B. Hardy, for Respondent.
JUDGES: Fitzgerald, C. Vanclief, C., and Temple, C., concurred.
OPINION
FITZGERALD, Judge
This action was brought to recover damages for the loss of a horse hired by plaintiff to the defendant, and alleged to have been driven by him several miles beyond the place to which he had promised to go, and while being so driven by the defendant the horse died.
The defendant answered by a general denial. The case was tried by a jury, resulting in a verdict and judgment for defendant for costs.
The case comes here by appeal from the judgment and the order denying plaintiff's motion for a new trial.
[28 P. 1061] The only question presented for decision by this appeal is, whether the horse and buggy were let to the defendant by plaintiff to be driven to a specified place and return. If so, and the horse was driven to a point beyond that place, such driving was in violation of the bailment and an unlawful conversion, and defendant's failure to return the horse would entitle the plaintiff to recover the value thereof in damages.
It is claimed by appellant, who, it appears, was a livery-man having horses and vehicles to let for hire, that the letting was to drive the horse to Mountain View and return, and no farther, and that, in violation of the terms of the contract, defendant purposely drove to a point five or six miles beyond that place, and on the return drive the horse died, and was never returned to plaintiff or paid for.
It is clear from the evidence that the minds of the parties did not meet as to any particular place to which the horse was to be driven, and as the evidence on that point, which is the only one involved in this appeal, is substantially conflicting, the verdict, under the well-established rule of this court, will not be disturbed.
It therefore follows that the judgment and order should be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.