The plaintiff and his assignors agreed to deliver their milk at the defendant’s factory for that purpose, and he undertook, for a stipulated compensation, to there manufacture from it butter and cheese, sell such products and distribute between them the proceeds in the manner provided for by the agreement. The contract was one of bailment involving the performance of service by the defendant, and in the result the parties were mutually and benefically interested. (Mallory v. Willis, 4 N. Y. 76; Foster v. Pettibone, 7 id. 433.) The duty assumed by the defendant was to exercise ordinary care for the protection and preservation of the subject of the bailment with a view to the faithful performance of his contract, and he was chargeable with liability to his patrons for any loss to them occasioned by his failure to observe and discharge such duty.

It is urged that the referee erred in his conclusion that the plaintiff had failed to show that the damages were caused by the negligence of the defendant. This contention is not only on the alleged ground that it did'appear that the latter was in fact chargeable with negligence as the cause of the loss, but that the burden was with the defendant to relieve himself from the imjmtation of want and care.

After a careful examination of the evidence we are satisfied that the question whether the loss was attributable to his neg[*506] ligen.ce was one of fact to be determined by the referee upon evidence somewhat conflicting, and that his conclusion in that respect is not here the subject of review.

The action was founded upon the charge of negligence of the defendant, and the burden was with the plaintiff to establish it. (Lamb v. Camden, etc., R. R. & T. Co., 46 N. Y. 271.)

As a general rule, when a bailee fails on demand to deliver to the bailor property to which the latter is entitled, the presumption of liability arises, and if the goods cannot be found it furnishes the imputation of negligence as the cause. (Fairfax v. N. Y. C., etc., R. R. Co., 67 N. Y. 11.) But suchprvma facie case may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee; then the onus continues upon the bailor to prove that it was chargeable to the want of care of the bailee. (Claflin v. Meyer, 75 N. Y. 260 ; Mills v. Gilbreth, 47 Me. 320 ; 74 Am. Dec. 487.) And although it may be that the proof given by him, explanatory of the reason for non-delivery, may disclose circumstances which, in their nature, permit or require the inference of negligence on his part (Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121), the affirmative of the issue is not shifted to the defendant, but remains through the trial with the plaintiff. (Heinemann v. Heard, 62 N. Y. 448 ; Blunt v. Barrett, 124 id. 117.)

In the present case the plaintiff alleged in his complaint, and it appeared, that the loss resulted from the destruction of the factory by fire. From that fact alone no presumption arose to furnish a prima facie case against the defendant. But upon the main issue, whether it was attributable to the negligence of the defendant, the burden was with the plaintiff. ( Whitworth v. Erie Ry. Co., 87 N. Y. 413.) The referee found that the charge was not sustained by the evidence. For the purposes of this review that question of fact must be deemed disposed of in the court below.

It .is also urged that the defendant, having undertaken to manufacture the butter and cheese from the milk furnished[*507] Mm at'the factory by the plaintiff and his assignors, market, the product and pay to them the proceeds, is liable for breach of his contract irrespective of the question of negligence. This proposition, in view of the issue made by the pleadings, cannot now, for the predication of error, be treated as in the case, although to sustain a judgment issues may be deemed so broadened as to conform the pleadings to the facts proved when it can be done without violation of any rule of law. But upon the basis of an alleged breach of contract the plaintiff’s action would not be supported upon the evidence and facts as found by the referee.

It is true that where an absolute executory contract is made, the contractor is not excused by inability to execute it caused, by unforeseen accident or misfortune, but must perform or pay damages unless he has protected himself against such contingency by stipulation in the contract. (Harmony v. Bing ham, 12 N. Y. 99 ; Tompkins v. Dudley, 25 id. 272; Wheeler v. Conn. Mut. L. Ins. Co., 82 id. 543.) But there may be in the nature of a contract an implied condition by wliich he will he relieved from such unqualified obligation, and when, in such case, without his fault, performance is rendered impossible, it may be excused. That is so when it inherently appears by it to have been known to the parties to the contract, and contemplated by them when it was made, that its fulfillment would be-dependent upon the continuance or existence at the time for performance, of certain things or conditions essential to its execution. Then in the event they cease, before default, to-exist or continue, and thereby performance becomes impossible without his fault, the contractor is, by force of the implied condition to which his contract is subject, relieved from liability for the consequences of his failure to perform. (People v. Bartlett, 3 Hill, 570; Dexter v. Norton, 47 N. Y. 62 Booth v. S. D. R. Mill Co., 60 id. 491; Taylor v. Caldwell, 3 B. & S. 826.)

By the contract now under consideration, the cheese and butter were to be manufactured at this factory and to be made from the milk furnished by the patrons, of whom the plaintiff[*508] and. his assignors were members. The existence of that particular factory was terminated by its destruction and the loss with it of the manufactured product and of the milk then remaining there unconverted into cheese and butter, rendered it impossible for the defendant to further proceed with the performance of his contract in respect to those articles of material and product. And as the nature of the agreement was such that it must be deemed to have been contemplated by the parties to it, that the articles to be manufactured should be made only from the materials furnished by the patrons and at the factory referred to, there was necessarily an implied condition so qualifying the defendant’s undertaking, as to relieve him from performance rendered impossible without his fault, and from the consequences of his inability thus occasioned to fulfill his contract in respect to the subject of the bailment which was destroyed by the fire.

There was no error to the prejudice of the plaintiff in any ■of the rulings of the'referee to which exceptions were taken in the reception or rejection of evidence.

These views lead to the conclusion that the judgment should be affirmed. k

All concur, except Follett, Oh. J., not sitting.

Judgment affirmed.