I concur with Judge Halt in the general rule stated by him, that the unauthorized use of the horse by the defendant for a purpose not warranted by the contract of hiring, was, in judgment of law, a conversion—the horse not having been in fact returned and accepted by the plaintiff. If there is nothing more proved, the defendant was liable for the value of the horse in the condition in which he was when the defendant received him.
But I am not satisfied that a subsequent acceptance of an additional compensation for the hire of the horse, with knowledge that the defendant had rode him a further distance, would not amount to a waiver of the tort. If one hire a *400horse to go ten miles, and rides or drives him twenty, and the owner, with knowledge thereof, accepts an extra compensation for the additional nse, he assents thereto as fully and with the same legal eifeet as if the hiring had been originally for twenty miles; and although he might, if the fact so appeared, have an action, on the case it may be, for any improper treatment of the horse on the journey, whereby the horse was injured or killed, he could not, after such assent, proceed for a conversion.
In the present case, however, the proof in relation to the receipt of the additional compensation is very loose and imperfect. It does not distinctly appear that the. additional compensation was received, with knowledge that the horses had been rode beyond Harlem. And the words of the witness may possibly be deemed to import that those only who brought back their horses paid the extra price charged. On this question of fact, I cannot say that the finding of the justice may not have been that those who returned with their horses paid the extra charge, and that it was received without any knowledge that any of the horses had been taken to Westchester county. And though the evidence is by no means satisfactory to my own mind, I do not feel warranted in reversing the judgment. Had the defendant shown that the horse was diseased when he was hired, that should have been taken in mitigation of damages; but the proof does not appear to have satisfied the court below of that fact.
Ingraham, First J., concurred in affirming the judgment.
Judgment affirmed.