The principal question presented by this record is, were the mares sold and delivered to the plaintiff in error, Howard ?
We do not consider it important to inquire whether there was an actual delivery or not, it being sufficient, as between the immediate parties, Howard and Babcock, that a bargain was struck, and the title to the mares became vested in Howard.
We have gone over this whole ground in the case of Wade v. Moffatts, post, and reaffirm the doctrine there sought to be established. The inaccuracy of the ninth instruction, made so by the qualification of the court, by the insertion of the phrase, “ or by express or implied evidence,” cannot be material. The court evidently meant to be understood “ or manifested by the circumstances of the case.” We say it is not material, because a delivery was a non-essential. The sale was perfect without it.
The third instruction which the court gave for the plaintiff, was in these words—it is on a legal proposition: The delivery of an article of personal property or a chattel, is the transfer of the possession of the same by some person to another, so as to place the property in the power and control of such person. The fifth as given is, “ If the jury believe, from the evidence, that the mare was hired to the defendant, then he would be bound to use such care as persons would usually exercise concerning their own property in like circumstances; but if the jury believe, from the evidence, that the mare was loaned, without compensation, to the defendant, then he would be bound to use a greater degree of care, and to exercise extraordinary diligence, and such as the most prudent would use toward their own property.” And the sixth : “ If the jury should believe, from the evidence, that the mare was delivered, and that after such delivery she was loaned without compensation to the defendant, and while she was in the possession, by such loan, of the defendant, the mare died, and was not returned to the plaintiff, then the jury will find for the plaintiff the value of the mare, unless they further believe, from the evidence, that the death was without the fault of the defendant, and that the defendant took extraordinary care of the mare, and that a slight degree of neglect in the care of such animal would render the defendant liable for any injury, or for the death of the mare in controversy, if produced by such neglect.”
Thus it will be seen, the plaintiff had the full benefit of all the questions he could properly raise before the jury in his favor.
Let us see if the instructions given on behalf of the defendant misstated the law on the facts supposed.
The first is, “ If the jury believe, from the evidence, that the mares in controversy were hired by Howard, the plaintiff, to Babcock, the defendant, to be used by him, and that they were mutually benefited by the arrangement, then Babcock is only required to use such care as ordinary prudent men with their property in taking care of the mares; and if the jury further believe, from the evidence, one of the mares died, and that the defendant used such care and diligence in taking care of the mare, they will find for the defendant.
“ That after the mare in controversy had been sold and delivered by the defendant to the plaintiff, that she was hired by the plaintiff to the defendant, and that the hiring was for the mutual benefit of the parties, then and in such case, the defendant is only required to use such care as ordinary prudent men take of their property, in taking care of the mare ; and if the mare, while thus in the care and possession of the defendant, died, and that the defendant took such care of the mare, they will find for the defendant.
“ That the mare in controversy was borrowed by the defendant of the plaintiff, and that during the time she was so borrowed she died from some unavoidable accident, and the defendant used such care as the most prudent take of theirs, without any carelessness on the part of the defendant, they will find for the defendant.
“ If they believe, from the evidence, that the mare in question in this case, died from inevitable casuality, or by causes or under circumstances over which the defendant had no control, and could not prevent, then they will find for the defendant, unless they further believe that the defendant was guilty of negligence or carelessness.
“ That although they believe, from the evidence, that the defendant borrowed from the plaintiff the mare in question, yet if they further believe that the defendant used the same care and diligence, and prudence, in taking care of the mare the most prudent, careful man would take of his own property, placed under similar circumstances, then the jury will find for the defendant.
“ That any admissions that may have been proved to have been made by plaintiff, are proper for the jury to consider in forming their verdict, and the jury will give any admissions, if any thus proved, such weight as they may think them entitled to.”
These were excepted to by the plaintiff, and exception disallowed.
We think they clearly state the law, and the distinction so far as care and diligence are concerned, between a hiring and a borrowing, and do not differ essentially from those given by the court on behalf of the plaintiff.
There was proof that the plaintiff did not want to use the mares until the August following the purchase, and he stated it would be an accommodation to him for the defendant to keep them. It was an advantage, as he saved their keep and care by the arrangement, and was benefited to that extent. The benefit was mutual, under which state of case, no extraordinary diligence and care are requisite.
In the printed abstract of the plaintiff, the ruling of the court on the demurrer to the first, second and third counts on the award, is assigned for error, though it is not assigned on the record.
The plaintiff, however, considering that it is there assigned, commences his argument with that ruling.
The award is in these words, that Babcock pay to Howard, “ the sum of money for which the said Howard received the said mare from the said Babcock, on the purchase of the same from him.”
In each of these counts is an averment that the mare was in fact received by Howard on such purchase at one hundred and fifty dollars, and it is insisted that this averment makes the award certain.
It will be seen by the evidence, that no price was agreed on of any one mare. A pair was purchased at three hundred dollars. One of them, the surviving one, may have been worth two hundred dollars of that amount, for aught that appears. There is nothing to show they were of equal value, each one worth precisely one hundred and fifty dollars. The one that died may have been worth but seventy dollars. It is entirely uncertain at what sum Howard received her from Babcock, and the averment in the declaration don’t help it. The award must be certain of itself, so that it can be easily comprehended, and capable of being carried into execution without the aid of extraneous circumstances. McDonald v. Bacon, 3 Scam. R. 431. How is the sum paid by Howard for the mare ever to be ascertained ? It can’t, from the very nature of the transaction, be ascertained. It does not follow, because he allowed $300 for the pair, he estimated the one that died at $150. No man can say what he allowed, although her value might be proved at that. One witness might swear to one sum, and another witness to a greater or less sum as her value, but neither could establish the sum of money in the language of the award, “ for which Howard received the said mare from Babcock, on the purchase of the same from him.” No extraneous circumstances that should be resorted to, could possibly establish this fact, and therefore the award is void for this uncertainty, or impossibility, rather. If the award had said, in proportion to what he allowed for the pair—it would have been certain. Even the maxim, “ id certum est, quod certum reddi potest,” will not avail the plaintiff, for no human power can make it certain. The plaintiff himself could not swear at what sum he received either of the mares from the defendant.
The cases referred to by the plaintiff’s counsel from Vermont, Wright v. Smith, 19 Ver. R. 110, and Cooley v. Dill, 1 Swan, (Tenn.) 318, do not sustain his position.
In the Vermont case the award enjoined upon the defendant the payment of the taxable costs. What those were, is prescribed and fixed by the law; and in every given cause, the facts being given, the sum total of the taxable costs can be certainly ascertained. But if the sum was made certain by the averment in the declaration, there is still a fatal defect in each of the three counts. It is a rule in pleading, that when matter is more peculiarly within the knowledge of one of the parties than the other, notice' is necessary to the other party, although the terms of the contract may not require it. The sum at which he received the mare, was certainly more in the knowledge of the plaintiff than of the defendant—in fact, in his knowledge alone. To have entitled him to recover, then, he should have averred in his declaration, that the sum was $150 at which he received the mare, of which the defendant had notice before suit brought. There is an averment that the defendant had notice of the award, but not of the sum the plaintiff claimed to have allowed for the mare.
But we question very much, if this would have helped an award so void as this is. No averment could help it, for no averment .of the sum could be proved.
The case in 1 Swan R. 313, does not seem to have any application to the question made here. It merely decides that a certain award was final under the terms of the submission of the parties. This point we are considering was not before the court.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.