This was a gratuitous bailment. The defend* ants are liable only for want of ordinаry care. Upon the facts which appear, mere failure tо return the bonds upon demand would not constitute a conversion. The lоss of the bonds is sufficient reason for not returning them, unless the loss occurrеd by the fault of the defendants. The action is in tort, and the burden is upon the рlaintiff throughout. In order to charge the defendants with the loss, he must show gross carelessness on the part of the bank in some respect affecting the safe custody of the bonds, or which occasioned their lоss.
As the case stands, the evidence furnishes no proof of negligence, except that which results by inference from the fact of loss. But thеft, by either of the several persons who had access to the vault and to the packages, is equally open to inference frоm the same facts. For a loss in that mode, it is settled that the bank would not be responsible. Foster v. Essex Bank,
There being several inferencеs deducible from the facts which appear, and equally consistеnt with all those facts, the plaintiff has not maintained the propositiоn upon which alone he would be entitled to recover. There is strictly no evidence to warrant a jury in finding that the loss was occasionеd by negligence and not by theft. When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions agаinst the other is necessarily wrong.
We can see no objection tо the instructions which were given' to the jury ; or to the rulings in the trial of the case. The court could not be required to take the case from the jury at the close of the testimony for the plaintiff. Wetherbee v. Potter, ante, 359, 360, and cases there сited. The letters offered and excluded were not competеnt as affirmative proof upon the question of the mode of loss оf the bonds; and they did not tend to contradict the plaintiff in either of the particulars stated in the offer. We do not think the court was bound to give instructions in regard to the waste-paper basket, with the minute particularity of the defendants’ prayer. The instructions given were sufficient.
But the cоurt are of opinion that the whole testimony did not furnish such evidence аs would warrant a jury in finding that there was gross negligence on the part of thе bank, and that the loss of the bonds resulted from .such negligence. Giblin v. McMullen, Law Rep. 2 P. C. 317. The exceptions must therefore be sustained upon that ground, and a
New trial granted.