TYSON, J.
— It appears that the endorsement made by appellant upon the supersedeas bond, was made by him upon the advice of counsel that such an endorsement would exonerate his sureties upon the bond from all lin[599]*599bility; and upon being informed that it would not have this effect, lie withdrew or revoked the order to the clerk contained in the endorsement made by him upon the bond and directed the clerk to make a transcipt of the proceedings in the cause and forward it to this court. I le had the right to Avithdraw his offer to dismiss his appeal at any time before it was acted upon by this court. A dismissal could not have been effectuated except by an order 'made here. True, he had the right to direct the clerk not to make a transcript of the proceedings, and had he not withdrawn til's instruction to this effect the appellee could have had a. judgment of affirmance not only against the appellant but his sureties also, upon production by him of the proper certificate of the clerk that an appeal had been taken.- — 1 Brick. Dig. 103. The motion to dismiss the appeal must be denied.
It appears that each count of the complaint Avas demurred to. However, the only recital in the judgment entry with respect thereto is in these words: “The defendant's demurrers to the complaint is overruled by the court.” This is not sufficient as a judgment of the court upon the demurrers and Avill not support an assignment of error. We must, therefore, decline to consider them. — McDonald v. Ala. Midland R’y Co., 26 So. Rep. 165, and authorities there cited.
The gravamen of the first, second and third counts of the complaint is conversion of the mare, by the using of her in a Avay, in violation of the terms of the agreement under which the defendant acquired possession of her. The fourth count in averring the bailment simply avers that “plaintiff let defendant have the use etc.” The Avord let as here used, taking into consideration the entire context of the count, upon the familiar principle, . that pleadings must be construed most strongly against the pleader, must be construed to mean “to lease; to grant the use and possession of a thing for compensation.” — Bomder’s LaAV Diet. p. 185. So then this count is predicated upon a hiring of the mare by the plaintiff to the defendant for a reward, the negligent use by the defendant of her in permitting her to be worked by a boy Avhen injured and the negligent use of her after the injury from which she died. The fifth count, alleges that [600]*600the “defendant recklessly, carelessly and wantonly so used” the mare that she died. This count is “bad for repugnancy and really avers, in the alternative, either negligence or wantonness, since an act cannot be done through inadvertence and at the same time be done wantonly; and construing the count against the pleader, it must be held to charge negligence only.”- — L. & N. R. R. Co. v. Orr, 26 So. Rep. 35, s. c. 121 Ala. 489, and authorities there cited. Thus construing it, it does not state a cause of action for the obvious reason, that it alleges no duty owing the plaintiff by the defendant nor states any facts from which the law will imply the duty. — Ensley R. Co. v. Chewning, 93 Ala. 24; 14 Ency. Pl. & Pr. 331. If it were possible, hoAvever, under any phase of the case to construe this count as charging wantonness, the plaintiff Avould derive no benefit arising out of such a construction, for the reason, that such an allegation is Avliolly unsupported by the evidence in the case.
We Avill consider in the iirverse order of the pleadings, that phase of the case relying upon the negligence of the defendant resulting in injury to the mare for a recoArery. A bailment was created Avhen there Avas a delivery of the mare by the plaintiff to the defendant for a particular use or purpose.- — Magee v. Toland, 8 Port. 36; 3 Am. & Eng. Ency. Law (2nd ed.) 733. The testimony of all the AAdtnesses agree that at the time of the delivery of the mare, it Avas understood that she Avas to be used by the defendant for farm work. The contention of the plaintiff, and there is testimony tending to support it, is that no consideration was to be paid by the defendant for her use and that she was only to perform light work, to-Avit: “to open corn beds.” The contention of the defendant, and there is testimony tending to support his side of the controA’'ersy, is that he Avas to and did pay the plaintiff a consideration for the use of the mare and that she Avas to perform farm work generally, AArithout reference to avIiether it was light or heavy.
The evidence establishes, without dispute, that at the time the animal Avas injured, she Avas being Avorked by the defendant Avith tAvo of his mules to a harroAV in the preparation of land, which the year previous had beeu [601]*601cultivated in corn. That the position of the mare was on tlie right side of one of the mules, immediately in front of the harrow, which mule was being ridden by one of his sons, and the other mule was working single in front. The mare and mules thus arranged were what is commonly known as a “spike team.” In working the team in this manner the front mule walked upon the old corn bed, while the mare and the saddle mule walked in the water furrow upon each side of the bed or row.
The defendant, at the time of the injury to the mare, Avas riding upon the harroAV and Avas superintending the work. It Avas Avliile this work Avas being done, that the mare Avas injured by means of the end of a corn stalk, which Avas standing, stabbing her in the breast Avliich inflicted the injury.
It appears Avithout dispute that the team aatus being driven in a careful manner at the time the injury Avas inflicted and the Avork Avas not at all dangerous or hazardous. When the mare was Avounded she stopped and thereupon the defendant removed the corn stalk Avliich inflicted the injur yand immediately unhitched her from the harroAV and. gave her the proper attention.' Within a feAV hours after the occurrence of her injury, he returned her to the plaintiff and assisted him in caring for her Avound.
It is very clear from this statement of the. facts, that the aA”erments of the fourth count of the complaint are not sustained. Indeed, it can be said as a matter of hrw, upon these facts that the defendant Avas not guilty of any negligence AAdiatever-. He may have been guilty of a breach of the terms of the bailment, depending upon the finding by the jury as to the truth of the plaintiff’s contention upon that point. Should the jury find that the defendant agreed when he received the mare to use her for light Avork and violated his agreement by using her to do hoaA’y work, this would not Avarrant a recovery for negligence. The evidence must disclose his “inadvertent failure to use ordinary care under the circumstances in observing or performing a non-contractual duty, implied by law, Avliich failure is the proximate cause of injury to a person to whom the duty is due.” — 16 Am. & Eng. Ency. Law, 389. In other words, the evidence must dis[602]*602close the failure of the plaintiff to use ordinary care in the use of the mare while working her to the harrow, Avhicli failure was the proximate caus'e of her injury.
The other phase of the case, to which we will now advert, involves the right of the plaintiff to recover, based upon an alleged use of the mare in violation of the terms of the bailment-.
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TYSON, J.
— It appears that the endorsement made by appellant upon the supersedeas bond, was made by him upon the advice of counsel that such an endorsement would exonerate his sureties upon the bond from all lin[599]*599bility; and upon being informed that it would not have this effect, lie withdrew or revoked the order to the clerk contained in the endorsement made by him upon the bond and directed the clerk to make a transcipt of the proceedings in the cause and forward it to this court. I le had the right to Avithdraw his offer to dismiss his appeal at any time before it was acted upon by this court. A dismissal could not have been effectuated except by an order 'made here. True, he had the right to direct the clerk not to make a transcript of the proceedings, and had he not withdrawn til's instruction to this effect the appellee could have had a. judgment of affirmance not only against the appellant but his sureties also, upon production by him of the proper certificate of the clerk that an appeal had been taken.- — 1 Brick. Dig. 103. The motion to dismiss the appeal must be denied.
It appears that each count of the complaint Avas demurred to. However, the only recital in the judgment entry with respect thereto is in these words: “The defendant's demurrers to the complaint is overruled by the court.” This is not sufficient as a judgment of the court upon the demurrers and Avill not support an assignment of error. We must, therefore, decline to consider them. — McDonald v. Ala. Midland R’y Co., 26 So. Rep. 165, and authorities there cited.
The gravamen of the first, second and third counts of the complaint is conversion of the mare, by the using of her in a Avay, in violation of the terms of the agreement under which the defendant acquired possession of her. The fourth count in averring the bailment simply avers that “plaintiff let defendant have the use etc.” The Avord let as here used, taking into consideration the entire context of the count, upon the familiar principle, . that pleadings must be construed most strongly against the pleader, must be construed to mean “to lease; to grant the use and possession of a thing for compensation.” — Bomder’s LaAV Diet. p. 185. So then this count is predicated upon a hiring of the mare by the plaintiff to the defendant for a reward, the negligent use by the defendant of her in permitting her to be worked by a boy Avhen injured and the negligent use of her after the injury from which she died. The fifth count, alleges that [600]*600the “defendant recklessly, carelessly and wantonly so used” the mare that she died. This count is “bad for repugnancy and really avers, in the alternative, either negligence or wantonness, since an act cannot be done through inadvertence and at the same time be done wantonly; and construing the count against the pleader, it must be held to charge negligence only.”- — L. & N. R. R. Co. v. Orr, 26 So. Rep. 35, s. c. 121 Ala. 489, and authorities there cited. Thus construing it, it does not state a cause of action for the obvious reason, that it alleges no duty owing the plaintiff by the defendant nor states any facts from which the law will imply the duty. — Ensley R. Co. v. Chewning, 93 Ala. 24; 14 Ency. Pl. & Pr. 331. If it were possible, hoAvever, under any phase of the case to construe this count as charging wantonness, the plaintiff Avould derive no benefit arising out of such a construction, for the reason, that such an allegation is Avliolly unsupported by the evidence in the case.
We Avill consider in the iirverse order of the pleadings, that phase of the case relying upon the negligence of the defendant resulting in injury to the mare for a recoArery. A bailment was created Avhen there Avas a delivery of the mare by the plaintiff to the defendant for a particular use or purpose.- — Magee v. Toland, 8 Port. 36; 3 Am. & Eng. Ency. Law (2nd ed.) 733. The testimony of all the AAdtnesses agree that at the time of the delivery of the mare, it Avas understood that she Avas to be used by the defendant for farm work. The contention of the plaintiff, and there is testimony tending to support it, is that no consideration was to be paid by the defendant for her use and that she was only to perform light work, to-Avit: “to open corn beds.” The contention of the defendant, and there is testimony tending to support his side of the controA’'ersy, is that he Avas to and did pay the plaintiff a consideration for the use of the mare and that she Avas to perform farm work generally, AArithout reference to avIiether it was light or heavy.
The evidence establishes, without dispute, that at the time the animal Avas injured, she Avas being Avorked by the defendant Avith tAvo of his mules to a harroAV in the preparation of land, which the year previous had beeu [601]*601cultivated in corn. That the position of the mare was on tlie right side of one of the mules, immediately in front of the harrow, which mule was being ridden by one of his sons, and the other mule was working single in front. The mare and mules thus arranged were what is commonly known as a “spike team.” In working the team in this manner the front mule walked upon the old corn bed, while the mare and the saddle mule walked in the water furrow upon each side of the bed or row.
The defendant, at the time of the injury to the mare, Avas riding upon the harroAV and Avas superintending the work. It Avas Avliile this work Avas being done, that the mare Avas injured by means of the end of a corn stalk, which Avas standing, stabbing her in the breast Avliich inflicted the injury.
It appears Avithout dispute that the team aatus being driven in a careful manner at the time the injury Avas inflicted and the Avork Avas not at all dangerous or hazardous. When the mare was Avounded she stopped and thereupon the defendant removed the corn stalk Avliich inflicted the injur yand immediately unhitched her from the harroAV and. gave her the proper attention.' Within a feAV hours after the occurrence of her injury, he returned her to the plaintiff and assisted him in caring for her Avound.
It is very clear from this statement of the. facts, that the aA”erments of the fourth count of the complaint are not sustained. Indeed, it can be said as a matter of hrw, upon these facts that the defendant Avas not guilty of any negligence AAdiatever-. He may have been guilty of a breach of the terms of the bailment, depending upon the finding by the jury as to the truth of the plaintiff’s contention upon that point. Should the jury find that the defendant agreed when he received the mare to use her for light Avork and violated his agreement by using her to do hoaA’y work, this would not Avarrant a recovery for negligence. The evidence must disclose his “inadvertent failure to use ordinary care under the circumstances in observing or performing a non-contractual duty, implied by law, Avliich failure is the proximate cause of injury to a person to whom the duty is due.” — 16 Am. & Eng. Ency. Law, 389. In other words, the evidence must dis[602]*602close the failure of the plaintiff to use ordinary care in the use of the mare while working her to the harrow, Avhicli failure was the proximate caus'e of her injury.
The other phase of the case, to which we will now advert, involves the right of the plaintiff to recover, based upon an alleged use of the mare in violation of the terms of the bailment-. The general rule is that if a bailee having authority to use a chattel in a particular way uses it in a different way or to a greater extent than authorized, such unauthorized use is a conversion of the chattel for which the bailor maj maintain a trover for its value. An illustration, apropos to this case is found in the case of Fail & Miles v. McArthur, 31 Ala. 26, where it is said: “If a slave should he hired to one for a particular purpose, to be employed at a particular labor, there would be a special hiring for a particular irarpose. He who hires a slave for a particular service has no right to employ the slave in another and different service; and if he does so, it may be treated as a conversion by the owner. This principle is not only settled in this State, but was'established at common law, and the books abound with adjudications recognizing it. Where one hired a horse, to ride from Boston miles to Brooklin and upon reaching Brooklin, rode miles farther to Watertown, he was held liable for a conversion. So, if a horse is hired as a saddle horse, the hirer has no right to use him in a cart or to carry loads, or as a beast of burden; and one who borrows jewels, to wear to a ball, will be responsible if he wear them to the theatre or to a gaming house.” See also Fox v. Young, 22 Mo. App. 386; Lane v. Cameron, 38 Wis. 603; De Talleman v. Fuller, 12 Am. Dec. 616 and note on pp. 619-620; Bolling v. Kirby, 90 Ala. 215, s. c. 24 Am. St. Rep. 789, notes 795 to 819. In such case, the liability for injury or loss is not dependent upon the want of care on the part of the defendant in the use of the mare, but it is absolute. — Hooks v. Smith, 18 Ala. 338; Duncan v. Railroad Co., 2 Rich. (S. C.) 613. Nor will the subsequent return of the property after its misuse and its acceptance by the bailor bar an action for the conversion, but its redelivery will only go in mitigation [603]*603of damages. — St. John v. O'Connell, 7 Port. 466. If tlie chattel is so injured as tliat it is worthless AAdien returned, the damages of course would not be reduced. The burden of proof where a conversion for a misuse is relied upon for a recoA'ery, is upon the plaintiff, just as it is in any other action for a conversion.
The mere proof by the plaintiff that the mare Avas uninjured AAdien delivered to the defendant and was injured AAdien returned by him did not make out a prima facie case. It Avas incumbent upon him to prove to the reasonable satisfaction of the jury that the defendant made use of her in a Avay in violation of the terms of the bailment. Tie must prove a conversion.
It folloAvs from what AA'e have said that charges numbered 1, 3 and 5 requested by the plaintiff Avere properly given and that the ghdng of charge number 4 at the re quest of plaintiff and the refusal to give charge number 4 at the request of the defendant Avas error.
Charge number 2 given at the instance of the plaintiff AA'as misleading and abstract, and should have been refused. Bui; the giving of it is not a reversible error.
Charge number 1 requested by defendant Avas’properly refused. •
Charge 2 is predicated upon the proposition that if the plaintiff by improper treatment of the avouiuI AAdiich the mare received caused her death, then the plaintiff ought not to recoA'er. The plaintiff's right of action for a con-A'ersion Avas complete AAdien the conversion took place and this Avitliout reference to the mare’s physical condition after the conversion. If she Avas returned to him after injury, the then condition of the mare Aims an element to be considered by the jury in fixing the amount of damages the defendant should pay. If by the injury she AA'as rendered Avorthless, then, of course, the market A'alue of the mare Avas the measure of damages. If the injury caused her death, this Avould afford eAddence of her Avorthless condition when returned; but whether the injury caused her death, or AA’hetlier her death Avas caused by some intervening superseding cause, is only material in determining the amount of damages the plaintiff should recoA’er. Should a superseding inter-A'ening cause be sIioaxui, causing her death, this would not [604]*604defeat the plaintiff’s right to recover, at least, nominal damages. For these reasons this charge should have been refused. — Collins v. Bennet, 46 N. Y. 490.
Charge 3 requested by defendant was rightly refused. The erysipelas or blood poisoning may have been the result of the injury or a mere development of the injury— in which case the defendant would be liable, if guilty of a conversion. — Armstrong v. Montgomery St. R’y Co., in MS.
For the errors pointed out the judgment of the circuit court must be reversed and the cause remanded. Reversed and remanded.