
    Young v. Lewis.
    A hiring by the month at so much per month is a hiring from month to month, each party having a right to terminate it at the expiration of a month, but not after another month ha** onmmonced to run.
    There is no distinction as to the rights of the parties between a hiring for a year and a hiring for a shorter period.
    Where the owner of a slave sued the hirer for the value of the Slave, which had died of cholera while in the hirer’s possession, alleging a-« the. ground of the defendant’s liability that the latter Imd refused to redeliver the slave on demand at the expiration of the term ot hiring, it- was h«dd that if the plaintiff had sought to recover on the ground that defendant liad not tremed the slave with proper diligence, it should have been the subject of a distinct averment, and that the admission of testimony as to diligence without objection did nob atleet the, question.
    ■Where the hirer refuses to redeliver the property at the expiration of the term of hiring he becomes liable for all loss, diligence or no diligence.
    In a case nf hiring from month to month .neither party, it seems, is entitled to warning.
    Appeal from Bexar. The appellant brought his suit to recover from the appellee the value of a negro girl, a slave, alleged to have "been the property of the appellant, and to "have died of the cholera in the possession of tlie appellee, to whom she had been hired by the appellant.
    Iu the petition it was stated that in the month of March, A. D. 1S49, petitioner hired to the said Nathaniel Lewis a negro woman, a slave, by the month, of 1he value of five hundred dollars; that at "tlie expiration of the said month and before the cholera broke out in the city of San Antonio where the said Lewis was then residing and where he kept the said negro woman, .your petitioner, greatly apprehensive that said slave might fall a victim to the cholera then raging iu said city, as hundreds were dying, demanded the said slave of tlie saiil Lewis for tlie purpose of talcing her home and out of the influence of the cholera, and positively refused to hire said slave for another month, as tlie risk was too great on account of the .cholera ; hut said Lewis'refnsed to deliver up said slave and wrongfully detained her from your petitioner, who liad a right to control his own property as lie saw proper. The petition in substance then proceeded to state that tlie slave, while so in the possession of Lewis, iu the said city of San Antonio and in tlie month of April or May, A. D. 1849, and while, the said Lewis detained tlie said slave in Ills possession, contrary to the will of petitioner and contrary to petitioner’s repeated request to have said slave delivered up, died of tlie cholera. lie alleged that in consequence of such wrongful act of detaining tlie slave after petitioner had demanded her to be delivered up petitioner sustained damage by the loss of said slave to tlie amount of live hundred dollars, &e. Tlie petition contained no other averment.
    Tlie proof was that the slave was hired “ at twelve dollars per mouth; ” that the hire of the first month was paid, and that the slave continued with tlie defendant, until about ten days thereafter before she ivas demanded, and that she died of the cholera within six days after she was demanded. There was also some proof as to diligence.
    There was a verdict and judgment for the defendant. Motion for a new trial overruled. The only question was whether the court ought to have granted a new trial.
    
      I. A. fy G. W. Paschal, for appellant.
    I. We do not believe that a monthly hiring at twelve dollars per month, ipso fado, gave Lewis a right to retain the negro another month if tlie owner did not demand her at the end of tlie first month.
    Such a proposition would include another, inconsistent with the best received notions, viz, that tlie hirer was at all events to keep the slave another month unless he returned her at tlie end of tlie first month, thus imposing on him responsibilities to supply medicines, physicians, &e., (which it has been decided by this court falls upon the hirer in the, absence of a special contract to the contrary,) which perhaps he never intended. And if sncli a rule as to mutual implied promises be good as to a monthly hiring it would also be good as to a yearly hiring.
    We think the law will the rather bo Hound to be that after the expiration of the month the hirer holds the slave as a tenant at will, subject to he redelivered on demand, and that, at most, if demanded at the middle of the month, the bailee might claim to be excused from paying the half month’s hire.
    Such a hiring will be considered as a hiring at will, if indeed it be considered any hiring at all. (Story on Contracts, 2d ed., sec. 9G2 (g); Bailey v. llimmell, 1 Mees & Web., COG; Hex v. Matthews, 3 T. R., 449; and see Story on Contracts, 962, a a.)
    A careful examination of these references will show that daily, monthly, and weekly hirings are all placed on the same footing, and that neither of them involves the'’ necessity of warning or the implied right to hold over from silence. They are mutually hirings at will. If the slave be hired for a day, a week, or a month, there is as much obligation to return her on the hirer as the owner. The rights and obligations are' precisely mutual: the hirer may hold over with the right to return her at will, paying pro ianto; the owner may demand her without liability for damages.
    II. If this be regarded as an ordinary case of bailment in which the hirer was to be charged with the same diligence which a man would ordinarily take of himself under the like circumstances, and the rule of law be administered which was observed in the case of Mitchell and Mims and the Harris county case decided the last term at Galveston, i. e., that the proof of due diligence devolves on Lewis, there has clearly been a failure to establish that degree of diligence. (See the rule in Mims v. Mitchell.)
    
      J. IF. Harris, for appellee.
    It is for the appellee contended that the appellant can have no claim against him on account of the death of this slave. (See Wheeler’s Law of Slavery, 133.) This authority shows that if Lewis had even covenanted to return the slave he. would not have been bound to do so.
    The hirer is only bound to use ordinary diligence. (Miller v. Salisbury, 13 Johns. It., 211; 2 Kent, sec. 40, 4thed., and note (a); Story on Bailments, sec. 39S, 309.)
   LIPSCOMB, J.

The first question presented for our consideration is as to the meaning of the contract set out in the petition and its legal effect. Prom (he language employed in stating it we can entertain no doubt that it was a contract from mouth to month,'so long as it should be continued, and that each party would have a right'to termínale it at t lie expiration of a month; the bailor could demand his properly at such periods, or the bailee could surrender it up; but that after another month liad commenced to run neither the one nor the other could terminate it without the consent of the other until the month then running should elapse. 'Phis we believe to lie. clearly the law of such a contract of hiring or bailment. For the time stipulated in the contract the bailee is regarded as the owner and entitled to the entire control of the properly so bailed or let, with the restriction that it is not to he used for a purpose different from that tlie. parties to the contract contemplated. (Story on Bailments, sec. 373; Id., 333, and the. sections following under art. I and title Hike op THINGS; to the same point Story on Contracts, sec. 730 and 731; McGee v. Curry, 4 Tex. R., 221, and the authorities there cited.)

In tlie argument it was insisted by the counsel for the appellant that there is a distinction where the hiring is for a year and where it is for a shorter period; that in the latter ease the bailor can resume, his property at will. It is, however, believed that such a distinction lias no foundation in principle, nor has it the sanction of a single adjudged ease.

To apply the law,'then, to the facts as presented by the record in this case, it will lie seen that at the end of the first month the appellant demanded and received the stipulated wages for the slave, and that after the second mouth liad run some ten or fifteen days lie demanded tlie slave to be delivered up to liim. The proof therefore fails entirely to support tlie allegation of a breach of the contract, as by that contract he could only have lawfully demanded her at the expiral ion of t.lie month. The jury therefore in finding a verdict for the defendant did not find contrary to tlie evidence hut strictly in accordance with it.

It will he found by a reference to the authorities already cited that the defendant was bound to take tlie same care of the slave hired that a prudent and reasonable master would use with his own slave. If he had failed to do so he would have been liable to the plaintiff for such damages as resulted from his failure to comply with and observe that'degree of care and diligence. If, however, the ¡plaintiff had sought to recover damages on this ground it should have been the subject, of a distinct averment, and there has been no rule more uniformly adhered to by 1liis court than tlie one that the alley ata and the probata must agree, and that the averments must he made so ¡is to let in the appropriate testimony. (Mims v. Mitchell, 1 Tex. R., 443; Coles v. Kelsey, 2 Tex. R., 541; Hall & Jones v. Jackson, 3 Tex. R., 3 Tex. R., 399, 310, 311.) And in the last case tlie concluding remarks of tlie court in giving its opinion are: “If, however, the “decree upon its face appeared sufficient'to divest the title of tlie defendant “to any .-pocilio lauds, yet, being based upon material facts which are not al“leged, and which therefore cannot constitute the basis of a decree or judg“ment. it cannot be supported.” There being no averment of negligence, it is altogether unnecessary to inquire whether'there was sufficient evidence of such fact to entitle tlie plaintiff to recover damages.

If tlie. plaintiff had proved a demand and a refusal to deliver up the slave at •the end of the first month when he demanded and received tlie month’s wages the defendant would by such violation of his contract have become liable for all loss, diligence or no diligence, as he would in such case have become the insurer against all loss. This is believed to be tlie doctrine of both foreign and American jurists, and such is believed to have been the ruling of this court at Galveston tlie last term in tlie case of Porter and Wife v. Milier. But this lie entirely failed to prove.

We therefore believe there is no error in the judgment in the court below, .and it is in all things affirmed.

Judgment affirmed.  