I cannot assent to an affirmance of the judgment appealed from, because, as it seems to me, while the amount involved is not large, injustice would result in this case and ivould involve such an interpretation of contracts which are in common use between tenant and owner of farm lands as will unsettle the rights of such parties as they have uniformly been understood to exist.
By the judgment the plaintiffs were awarded the value of one cow belonging to them and which died while in defendants’ possession as tenants of plaintiffs’ farm under a written lease, a copy of which is annexed to the complaint. The term of the lease was for one year, commencing on the 1st day of November, 1901, and ending on the 1st day of November, 1902. The plaintiffs agreed thereby to furnish to the defendants upon said farm “ thirteen average cows ” and “ if any cow proves a failure, the first party (the plaintiffs) is to replace with an average cow.” The second party (the defendants) agreed to pay “ for the use of said premises and rent of thirteen cows, $195.00 to be paid at the rate of $15.00 per cow.” The defendants also agreed “ to return (to the plaintiffs) thirteen cows in as good condition as when taken.”
*227On the 26th day of October, 1902, five days before the expiration of the lease, one of the thirteen cows died, and then unquestionably proved “ a failure ” under the terms of the contract, and it is not claimed that the plaintiffs replaced such dead cow “ with an average cow ” or with any cow.
Immediately upon the death of such cow the plaintiffs caused a post mortem examination to be made of her by a veterinary surgeon, who was sworn on behalf of the plaintiffs on the trial; he testified in substance that the death of the cow resulted from eating apples which caused inflammation of the stomach and part of the bowels. The witness also testified — and it was not controverted — that there was an orchard in the pasture of the plaintiffs. Under the proof made by the plaintiffs I do not think it was necessary for the defendants to give evidence tending to prove that the death of the cow was caused without negligence on their part; they could not have more effectually established that proposition than had already been done by the plaintiffs’ evidence, to wit, that there was an orchard in the pasture of the farm which they rented from the plaintiffs; that the cow, running in such pasture, had eaten apples, which caused her death. The defendants could not have produced evidence which would have more effectually exonerated them from a charge of negligence in the premises. But in addition it may be said that the complaint, which is in writing and is a formal document, contains no allegation of negligence. The sole cause of action alleged is that the defendants failed “ to return to said plaintiffs thirteen cows in as x good condition as when taken,” although said lease had expired. The answer of the defendants, which is also in writing, only puts in issue the interpretation of the lease. It alleges that by the terms of the agreement if any cow proved “ a failure ” it was incumbent upon the plaintiffs to replace said cow with “ an average cowthat this the plaintiffs had failed to do, and that, therefore, the defendants are not liable.
The learned county judge, as appears by his opinion, affirmed the judgment upon the theory that as the lease contained the provision, “ the second party to return thirteen cows in as good condition as when taken,” and the clause “ if any cow proves a failure the first party is to replace with an average cow,” it rendered the meaning of the lease “ equivocal and ambiguous and the interpretation of the *228two- sentences depends upon the minds and intent of the parties executing the lease; that it raised a question of fact for the jury to determine, and they having determined that fact in favor of the plaintiffs, their verdict should not be disturbed.” ¡No suggestion that the death of the cow was due to the negligence or inattention of the defendants, or that upon the evidence they were not fully absolved from such charge, was made the basis for sustaining the judgment by the County Court, and no suggestion of that kind is made by respondents’ counsel as a ground for sustaining the judgment. The respondents’ counsel, as did the county judge, seeks to sustain the plaintiffs’ right to recover solely because of the provision in the contract which requires the defendants “ to return - thirteen cows in as good condition as when taken,” the county judge holding that by reason of the other provision, “if any cow proves a failure the first party is to replace with an average cow,” the contract was rendered ambiguous, and, therefore, that it was permissible for-the jury in Justice’s Court to determine what it meant.
I. think the terms of the lease are not ambiguous; that as matter of law its true meaning -may be determined. If the thirteen cows had .been killed by lightning in July, could it have been successfully contended that the defendants, notwithstanding the plaintiffs’ neglect to replace .them with “average” cows, would be liable for fifteen dollars per cow as. rent for the premises, and also to return thirteen cows at the expiration of the term ? The proposition impresses me as being absurd in the extreme. The same rule, however, would apply in the- case of the death of one cow, caused without fault or neglect, of the defendants, as in the case of the entire herd. The same principle of law would govern in the interpretation of the contract in the one case as in the other. It seems to me that in the case of the death of the entire herd or of any one of such herd without the fault or neglect of the defendants, that under the plain terms of the contract it was incumbent upon the plaintiffs to replace such cow or cows with other or another “ average cow; ” that then it would be incumbent upon the defendants to pay the specified rent, to. wit,.fifteen dollars per cow, and return such cows so originally, or subsequently delivered to them in as good condition as when they were, received. The interpretation of the contract in that regard cam' be< no different because a cow died four days before the expira*229tion of the term than if she had died four months before said date. The interpretation of the contract, as evidenced by the judgment appealed from, made the defendants insurers of the cows which were delivered to them by the plaintiffs. Without fault or-neglect on their part — and, as we have seen, no issue of that kind was raised, nor was it suggested in the brief of the respondents’ counsel — the defendants would be liable for every cow which might die during the term of their lease, and logically would be liable for the rental of such cow, no matter when she died. It seems to me that the logical meaning and interpretation of the contract is in full accord with the equities, to wit, that the plaintiffs were obligated to furnish to the defendants thirteen cows in the first instance; that if any of such cows proved a failure either by death or otherwise, without "the fault or neglect of the defendants, the plaintiffs were required, to replace them with “.average ” cows; that such cows so originally or subsequently furnished, defendants were obliged to return to the plaintiffs in as good condition as when received by them. Immediately upon the death of the cow in question, it having occurred without the fault or ■ neglect of the defendants, it was the duty of the plaintiffs to have replaced said cow with an “ average cow.” It then would have been incumbent upon the defendants to have returned it together with the other twelve cows to the plaintiffs in as good condition as when received by them.
These considerations lead- me to the conclusion that the judgment appealed from should be reversed, with costs to the appellants.
Judgment affirmed, with costs.