By the Court,
Knox, J.The defendants were bailees for hire, of the articles of furniture . described in the complaint ;- and were - responsible upon principles applicable to that spebies of bailment. They had the right therefore to show-as- an excuse for not returning the property, that it was destroyed by fire,.while in the house mentioned in the agreement, without any fault on the part of the defendants, unless the provision that they were “to surrender the property-in as good a condition as reasonable use and wear thereof would permit,” is to be considered as creating and imposing a .duty or charge upon them in addition to that which the law would imply,.from, the relation of the parties, and be construed. in such a way as to make them insurers of the goods. “Another implied obligation of the hirer,” says Story, (Treatise on Bail. § 414,) “is to restore the thing hired, when the bailment is determined.. ' So the hirer is to restore it to the owner in as good condition as he received it, unless it has been'injured by some internal decay, or by accident, or by some other means wholly without his default.”
The implied agreement of the defendants to restore the *245property, it will be seen, is in substance and effect the same as that contained in this lease—no more nor less. In other words, were the agreement to return the property stricken out, the duty of the defendants to restore it to the plaintiff in as good condition as when received, reasonable use and wear excepted, would still subsist. The duties of a bailee are not increased by simply reducing to writing the precise agreement which the law implies from his relation to the bailor. These duties are absolute, within certain limits, and are well defined by law; they cannot be made more absolute or clear by reducing them to the form of a written agreement. This is quite obvious.
This view of the contract, it will be seen, subverts the ground taken by the plaintiff, that the defendant, by reason of the written agreement to return the property, was bound absolutely to do so. The case of Harmony v. Bingham, (2 Kernan, 99,) relied upon by the plaintiff, is not opposed to this. In that case the defendant agreed, absolutely, to deliver certain goods at Independence, Mo., in twenty-six days. His duty, as a common earner, did not require that he should do so, but he chose to impose this obligation upon himself for a consideration. The question in the case, therefore, did not depend upon the law applicable to the duty of common carriers, but upon the defendant’s liability on his special agreement, and the court held that having absolutely engaged to do an act, he was bound to its performance, the failure of which could not be excused by any contingency. But in the case in hand, the decision depends upon the law applicable to the duty of bailees for hire, inasmuch as the written agreement is the same as the law implies from the relation of the parties. (See Chitty on Contracts, ed. of 1851, p. 630, and cases cited in note l.) It is there said a borrower of a horse promised to redeliver it on request; the horse died, without his fault, before request. Held, he was not liable. The ground of the decision must have been that such a bailee was not liable for a loss occasioned by the act of God, and *246the promise was construed to have relation only to such liability to redeliver, as the law implied.”
[Monroe General Term, December 3, 1860.Smith, Johnson and Knox, Justices,]
We think, therefore, that the judgment should be set aside, and a new trial granted, for the error in rejecting the evidence of destruction of the goods, without fault of the defendants.
It is not necessary to consider any other questions raised oh the trial.