434 BAILMENT. 



Nor is the fact that a party had other horses to use in place 

 of the damaged one an element in the estimate of damages.®'' 

 Where the bailee agreed to pay one dollar a day for the 

 xise of oxen and to feed and care for them till they were re- 

 turned, it was held that the bailor's pecuniary compensation 

 was limited to the number of days they were actually used, 

 .though they were kept for a longer time.®* 



104. Agistment. — Agistors of cattle, as Judge Story says in 

 his work on Bailments, "do not insure the safety of the 

 cattle agisted, but they are merely responsible for ordinary 

 negligence. It will, however, be such neghgence for an 

 agistor or his servants to leave open the gates of his field; 

 and if, in consequence of such neglect, the cattle stray away 

 and are stolen, he will be responsible for the loss. They have 

 also, in virtue of their custody, such a possession and title 

 that they may maintain trespass or trover against a wrong- 

 doer for an)' injury to their possession, or any conversion of 

 the property. By the Roman law the agistor was made 

 responsible, not only for reasonable diligence but for reason- 

 able skill in his business, and ignorance of his proper duty 

 is treated as negligence. . . . The same rule prevails in the 

 xnodern foreign law." ®® 



That agistors, as such, do not insure the safety of the 

 animals entrusted to them and are responsible only for ordi- 

 nary negligence is a well-settled principle."" 



Where the bailor has shown that the animals were not re- 

 delivered or were re-delivered in an injured condition, the 



" Fulliam v. Hagens, 83 la. 763. 



°° Learned-Letcher Lumber Co. v. Fowler, 109 Ala, 169. 



" Story Bailra. § 443. 



'" Broadwater v. Blot, Holt 547; Brush v. Clarendon Land, I. & A. 

 Co., 2 Tex. Civ. App. 188; Callahd v. Nichols, 30 Neb. 532; Waldo v. 

 Beckwith, i N. M. 97; Wood v. Remick, 143 Mass. 453; Union Stock 

 Tard & T. Co. v. Mallory, etc., Co., 157 111. 554; Mansfield v. Cole, 61 

 id. 191; Umlauf v. Bassett, 38 id. 96; Ransom v. Getty, 37 Kan. 75; Robin 

 V. Briere, Montr. L. Rep. 7 Q. B. 361. 



