(dissenting). 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 would 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 plaintiff was awarded the value of one cow belonging to the plaintiff, and which died while in defendants’ possession as tenants of plaintiff’s 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, 1903. The plaintiff agreed thereby to furnish to the defendant upon said farm “13 average cows,” and “if any cow proves a failure the first party [the plaintiff] is to replace with an average cow.” The second party (the defendant) agreed to pay “for the use of said premises and rent of said thirteen cows, $195, to be paid at the rate of $15 per cow.” The defendant also agreed “to return [to the plaintiff] thirteen cows in as good condition as when taken.” On the 36th day of October, 1903—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 plaintiff replaced such dead cow “with an average cow,” or with any cow. Immediately upon the death of such cow the plaintiff caused a postmortem examination to be made of her by a veterinary surgeon, who was sworn on behalf of the plaintiff 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 plaintiff. Under the proof made by the plaintiff I do not think it was necessary for the defendant to give evidence tending to prove that the death of the cow was caused without negligence on his part. He could not have more effectually established that proposition than had already been done by the plaintiff’s evidence, to wit, that there was an orchard in the pasture of the farm which he *404rented from the plaintiff; that the cow, running in such pasture, had eaten apples, which caused her death. The defendant could not have produced evidence which would have more effectually exonerated him from a charge of negligence in the premises. But in addition it may bé 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* defendant “failed to return to said plaintiff thirteen cows in as good condition as when taken,” although said lease had expired. The answer of the defendant, 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 plaintiff to replace said cow with “an average cow”; that this the plaintiff had failed to do, and that therefore the defendant is 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 13 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 two 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 plaintiff, their verdict should not be disturbed.” No suggestion that the death of the cow was due to the negligence or inattention of the defendant, or that upon the evidence he was 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 respondent’s counsel as a ground for sustaining the judgment. The respondent’s counsel, as did the county judge, seeks to sustain the plaintiff’s right to recover solely because of the provision in the contract which requires the defendant “to return 13 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 party of the first part 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 13 cows had been killed by lightning in July, could it have been successfully contended that the defendant, notwithstanding the plaintiff’s neglect to replace them with “average cows” would be liable for $15 per cow as rent for the premises, and also to return 13 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 defendant, 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 defendant, that under the plain terms of the contract it was incumbent upon the plaintiff to replace such cow or cows with other or another “average cow”; that then it would be incumbent upon the defendant to pay the specified rent, to wit, $15 per cow, and return *405such cows so originally or subsequently delivered to him in as good condition as when they were received. The interpretation of the contract in that regard can be no different because a cow died four days before the expiration 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 defendant an insurer of the cows which were delivered to him by the plaintiff. Without fault or neglect on his part—and, as we have seen no issue of that kind was raised and is not suggested in the brief of the respondent’s counsel—the defendant would be liable for every cow which might die during the term of his 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 plaintiff was obligated to furnish to the defendant 13 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 defendant, the plaintiff was required to replace them with “average cows”; that such cows so originally or subsequently furnished defendant was obliged to return to the plaintiff in as good condition as when received by him. Immediately upon the death of the cow in question, it having occurred without the fault or neglect of the defendant, it was the duty of the plaintiff to have replaced said cow with an “average cow.” It then would have been incumbent upon the defendant to have returned it together with the other 12 cows to the plaintiff in as good condition as when received by him.
These considerations lead me to the conclusion that the judgment appealed from should be reversed, with costs to the appellant.