The bailment was for the benefit of both parties; so upon the settled distinction, the bailee' is only liable for ordinary neglect, which does not embrace a case of accidental destruction by fire, without default on the part of the bailee. Let it be granted that the defendant was in default in this, the tobacco was not all manufactured at the time agreed on. The delay was not the proximate came of the loss by fire, and according to all of the authorities, is too remote in its bearing as a ground to subject the defendant for the value of the tobacco that was burnt. This position could not be seriously contested, and the case dwindles down into a question for nominal damages to carry costs.
His Honor was of opinion that the payment of the taxes, and for the ingredients, was a dependent condition, according to the terms of the agreement, and that on failure by Foard, the defendant was excused for not completing his part of the contract, and having all of the tobacco manufactured by the time stipulated.
In this there was error. The defendant was bound to have all of the tobacco manufactured on or before the day agreed upon, and the promise of Foard to pay 10 cents per pound, taxes and costs of ingredients, was accepted as an independent agreement, upon which the defendant was willing to rely without making its performance a condition precedent, or an act on which the defendant’s undertaking was made to depend, so that a failure on the part of Foard would have the effect of relieving the defendant from his undertaking to manufacture the tobacco by the day fixed. Upon the evidence, his ILonor ought to have charged that the defendant was not liable for the value of the tobacco which was lost by accident, but that the plaintiff was entitled to nominal damages for the breach of the agreement as *227to time, which will carry the costs. This really seems to be the only purpose for protracting the litigation.
Error. Venire de novo.
This will be certified.
Venire de novo.