The plaintiff seeks to charge the defendants upon an undertaking, for a legal consideration, to deliver to him in Boston the property named in his declaration, alleging the receipt of the property by the defendants, and their neglect and refusal to deliver the same when duly demanded. The defendants are not alleged in the declaration to be common carriers, but their liability is put upon the ground of bailees for hire or warehousemen. In their answer the defendants admit that they received the property; they do not admit or deny the property of the plaintiff; and they allege that without any neglect or default or carelessness whatever on their part, and while they were exercising due care in respect to it, the tub of sugar was stolen from their warehouse; and they deny the existence of any other agreement between them and the plaintiff, than such as may be inferred from the facts set forth in the answer.
Upon these pleadings no question was raised as to the burden of proof. If the defendants exercised due and ordinary care in the custody of the property they cannot be charged for its loss. *450What constituted such care was a question of fact to be judged of with reference to all the circumstances, and especially with reference to the degree of care which other persons engaged in similar business in the vicinity were in the habit of bestowing on property similarly situated. The standard of ordinary care varies necessarily in different localities. One degree of diligence would be required for the city, and a less or greater for the country; depending on a great variety of circumstances. The defendants offered to prove that there was exercised by them in relation to this property that care which other railroad corporations in Boston usually exercised in relation to such property. The court excluded this evidence, and on this ground the exceptions are well taken. Lichtenhein v. Boston & Providence Railroad, 11 Cush. 70. Brown v. Waterman, 10 Cush. 117. Story on Bailm. §§ 11, 454. Exceptions sustained.
A new trial was thereupon had in the superior court, before Putnam, J., at which the plaintiff proved substantially the same facts as at the former trial. It was agreed that the liability of the defendants as common carriers had ceased, the action being brought against them as warehousemen. When the plaintiff’s evidence was in, the defendants asked the court to rule that he had not made out his case, and that the defendants were entitled to a verdict; but this request was declined.
The defendants then introduced evidence as to the care which they had used in the custody of the property. After the evidence was all in, the defendants asked the court to instruct the jury that the burden was on the plaintiff to show that they had not exercised ordinary care. But the judge declined so to rule, and instructed the jury that the burden of showing that the loss of the sugar had not been occasioned by any want of ordinary care and diligence on their part was on the defendants; that they were not bound to show the precise manner in which the loss occurred, and, if they were unable to do so, they might exonerate themselves from the burden by showing that the loss did not happen from any negligence or want of proper care on their part.
*451The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.
I G. Abbott Sf B. Dean, for the defendants.
G. M. Brooks, for the plaintiff.
Chapman, J.1. The court are all of opinion that the refusal to order a verdict for the defendants at the trial was right. The plaintiff’s evidence showed that the defendants had received the property, and on demand failed to deliver or account for it. There was nothing in this evidence to show that they had any reason for not delivering it; or that any cause but their own „ neglect or default prevented the performance of their contract. There was certainly a case to go to the jury.
2. The correctness of the ruling at the trial as to the burden of proof, must be considered in reference to the contract declared on. The instructions of the court of course must correspond to the form of the action. The rule which has been often stated, that a decision should not be made to turn upon the state of the pleadings, unless the question has been made at the trial, and an opportunity given for any proper amendments, has no application to the case. The defendants could not amend the plaintiff’s declaration. The declaration in this case is not in tort, but in contract. The plaintiff does not allege that the defendants were guilty of any want of ordinary care. He avers merely that the defendants received his tub of sugar and agreed to deliver it to him in Boston; that this contract was made for a valuable consideration; and that the defendants refused and neglected so to deliver it. The defendants admit in their answer the receipt of the sugar at their warehouse, consigned to the plaintiff; and it was proved to be the plaintiff’s property; but they deny any contract except that which is to be inferred from these facts, and further say that the sugar was stolen from their warehouse without any neglect or carelessness on their part. The court ruled that the burden of proof was upon the defendants to show that the sugar was lost without any want of due care on their part; and the correctness of the ruling is before ua for decision upon the bill of exceptions.
It may be conceded that when a plaintiff founds his action *452upon negligence, or a culpable omission of duty, the burden is upon him to establish it by proof. Fiske v. New England Insurance Co. 15 Pick. 317. And the defendants contend that this is the issue necessarily involved- in this suit, and that the burden of proof is on the plaintiff throughout. If proof of negligence is an essential part of the plaintiff’s case, this would be so; and the burden of proof would not shift. Lamb v. Western Railroad, 7 Allen, 98. But a majority of the court are of opinion that the plaintiff did not put his case on any such ground. He did not choose to frame his action, as he might have done, upon a breach of contract by the warehousemen relating to the care and custody of property intrusted to them, but upon the omission to deliver goods which they had received, and promised to deliver. This form of declaring imposed the duty and burden upon the defendants to put in evidence special matter in avoidance of the action. They must show an excuse for the non-performance of their promise; and the burden of proof was upon them to establish their excuse. There may have been conflicting evidence as to how the loss of the property occurred, if there were a loss; but the plaintiff did not admit that any loss had happened. The breach of the contract was not denied ; the issue was upon the existence of a sufficient excuse for it. • If the defendants indeed prove that the goods are stolen or lost, without direct fault on their part, so that per"ormance is impossible, then if the plaintiff charges that the loss occurred through negligence, he must prove it, and the burden of proof shifts upon him to do so. But until some excuse for the breach of contract is shown by the defendants, the plaintiff has nothing to prove on the subject. Negligence is not in issue, There is nothing in his declaration, or in the proof required tc support it, which intimates that the goods are not still in tht defendants’ possession and control.
This precise distinction is stated as the result of the author! ties in a note to the case of Platt v. Hibbard, 7 Cow. 500 and is approved by the supreme courts of New York and Penn sylvania, in Schmidt v. Blood, 9 Wend. 271, and Beckman v. Shouse, 5 Rawle, 189, 190. It has been fully sanctioj*ji >nt *453approved by this court in Lichtenhein v. Boston & Providence Railroad, 11 Cush. 70. In that case the nature and extent of the burden of proof were expressly brought under adjudication, were argued by counsel, and decided by the court. Both court and counsel assumed that the rule was that which was adopted in the case at bar, and the only difference was as to extending it farther. Judge Dewey says, “ But generally the carrier would have to show some mode in which the loss occurred, to sustain the burden on him, and establish the fact that the loss had not happened through his negligence.” The case of Lamb v. Western Railroad, 7 Allen, 98, is entirely consistent with the view <ve have taken. There were counts in contract and tort, but the breach of contract, as well as the tort, was based upon negligence in the care and custody of goods by the warehousemen.
That the action can be maintained upon allegation and proof of a failure to deliver the goods on demand, is manifest from the fact that the warehouseman is liable in some cases without regard to the question of due care or negligence. Thus it was adjudged by this court in the case of Lichtenhein v. Boston & Providence Railroad, above cited, and again in the recent ease of Hall v. Boston & Worcester Railroad, ante, 439, that a warehouseman who delivered the goods to the wrong person was responsible to the owner, even if he did so under an honest mistake, and without the least negligence. So if he keeps the goods safely, and still has them in his possession; or if a question has arisen in regard to the title, and an adverse claimant has indemnified him for refusing to deliver them. In all these cases, the plaintiff need not allege or prove anything beyond a failure to deliver the goods, and any justification or excuse on which the defendant relies is a substantive matter which he must allege in his answer, and establish by proof, the burden being on him. It is not to be regarded as merely raising a doubt about the making of .the contract, or the refusal to perform it, leaving the burden on the plaintiff, but it is a confession and avoidance, by admitting the non-delivery of the goods to the plaintiff, and setting up an excuse. The same principle applies to an alleged loss by theft.
*454In this ease the defendants alone know how they kept the goods, and whether they are in fact lost; and as the rules of pleading make it necessary for them to allege the defence, so the tales of evidence throw upon them the burden of proving it.