The plaintiffs recovered their judgment against the defendants for the value of a cow, and this appeal, questioning the correctness of said judgment, involves an interpretation of the rights of the parties under a farm lease made by the plaintiffs to the defendants. We believe that such interpretation leads to an affirmance of the judgment.
' The plaintiffs made their lease of a farm and certain personal property, including some cows. The lease and contract was in writing and contained two clauses which merit consideration. The *224first one is to the effect that the parties of the first part, plaintiffs herein, have leased “ their farm consisting of 84 acres * * * with thirteen average cows, the second party (defendants herein) to return thirteen cows in as good condition as when taken, with the privileges and appurtenances, for and during the term of one year.” The second clause .is to the effect that “ if any cow proves a failure the first party (plaintiffs) is to replace with an average cow.”
A few days before the lease expired one of the cows died. Plaintiffs did not replace it and defendants, did not return in its place another cow. This action was brought to recover the value of the cow which had died, and defendants urge in substance that, within the meaning of the lease, this cow had proved a “ failure,” and that it was the duty of the plaintiffs to replace it, and that they having failed-to discharge their obligation, defendants in turn were relieved from theirs to return the cow or one in its place.
In determining the obligation of the defendants to return a cow in the place of, or else pay for, the one which had died, we do not regard the clause requiring plaintiffs to replace the cow as much more than incidental. If the cow died under such circumstances as to make the defendants liable for it, then of course it would not be the duty of the plaintiffs to replace it, and if, upon the other hand, the death occurred under such circumstances that the defendants were not in any way responsible for it or to be charged with its consequences, a recovery cannot be had against them for the value of the cow whether plaintiffs replaced it or not, and we, therefore, come to the precise and narrow question whether, upon the evidence in this case, the defendants have exonerated themselves, under their contract, from liability to return or respond for the value of this cow.
In discussing this question we think that in behalf of appellants use is made of some illustrations which are not applicable and some facts assumed whicli were not proved. It is suggested in substance that if lightning had killed this entire herd of cattle it would be extremely inequitable and illegal to compel the defendants either to replace or pay for them. We shall concede, without stopping to decide whether it is so, that if some such cause as that suggested, and for which the defendants were in no manner whatever responsible, had destroyed the entire herd of cattle, the defendants would *225not be compelled to-replace or pay for. them. But that, as we shall see, is not this case.
Neither can it be said that the cow died without any negligence upon the part of the defendants. There is nothing whatever to show that the jury .in the Justice’s Court made any such finding as that. Upon the other hand, this court must assume, in the consideration of their general verdict, that they found directly the contrary, and that leads us to a brief review of tile evidence.
The evidence warrants, if' it does not'absolutely require, the conclusion that the cow- died as the result of eating apples while it' was in the custody of the defendants and upon the farm which they had leased and were operating. The jury had a right to find'that this caused the death, and that- it was negligence for the defendants to allow the cow to be where it would get improper food which would cause its death. This was one of the issues which the evidence presented to the jury. The pleadings were broad enough to cover that issue, and the objection that evidence tending to show negligence upon the part of the defendants was not admissible was distinctly raised upon the trial and overruled. There was no charge to the jury, and, therefore, nothing-upon the record to show what questions were submitted , to on passed upon by them, and we must assume, for the purpose of upholding the verdict and' the judgment entered thereon; that they made such findings upon any of= the issues which were submitted to them as warranted their verdict;
We, therefore, have it not only that the defendants have not excused themselves from redelivering this cow bysliowing that its death resulted from some cause over which they had no -control, or by showing even that they were not negligent as to causes within their control, but that, upon tile other hand; the evidence warranted the conclusion, and the jury have found, that they were negligent.
It may be said that the learned county judge and the counsel have not attempted to sustain their action upon this theory. That, however, is immaterial. The verdict was rendered upon all of the evidence before them, and upon very familiar-principles the plaintiffs have the right to have it sustained upon any theory which is applicable.
Neither are we ablé' to see- anything especially inequitable or unjust in the results-which flow from this conclusion. While it is *226proper enough that the plaintiffs should bind themselves to replace any cow which proved a failure, from inherent causes, or from causes over which the defendants had no control, it is, upon the other hand, perfectly proper that defendants who were to have the use and custody and the care of the live stock should assume the responsibility of caring for it properly, and if they failed to do this, of answering for the consequences.
The defendants apparently to this effect practically interpreted and construed the lease and their rights thereunder, when, as appears without contradiction, they voluntarily offered to pay plaintiffs fifteen dollars for the cow which had died and which they were thus unable to return.
The judgment is affirmed, with costs.
All concurred, except McLennan, P. J., who dissented in an opinion, and Williams, J., who dissented on the ground that the ° death of the cow was not the result of any negligence of the defendants.