Plaintiff institutes this suit olaimlng the sum of $350.00, averring that in the month of December, 1931, she deposited with the defendant, one .seal cepe-with qquirohoker relwhich defendants took charge of for the purpose of repair and make over; that the value claimed by her for the articles in question was the amount she paid for them, to wit the sum of $250.00; and further averring that defendants unable, to deliver to her this property claiming that same was stolen, .offered her .the sum of $150.00, alleging that they had only insured the property for the stun of $135.00. Wherefore she prayed for judgment.

Defendants excepted to plaintiff's petition because same disclosed no right of notion and further that the petition was too vague and- indefinite for defendants to safely answer. The exceptions and the answer under the rules of the First Oity Court having to be filed together, the'a® ewer admits that plaintiff left with defendants, several pieoes of French seal skins and one pieoe of squirrel for the purpose of having same made into a oape and re-choker pairs on a^*ia*** and that the charge for doing this work was thirty dollars for the oape and five dollars for the Alleging that the os-pe and ooll&r in qaestion ware delivered to plaintiff; plaintiff asked permission of defendants to hold the' oape for her which defendants agreed to-do without assuming any responsibility; subsequently there was -stolen from defendants premises without their knowledge, fault or negligence, the articles in question together with a large amqunt of property belonging to de- ' fendants; they admit: having an insurance polioy ooverlng their property- and the property of plaintiff and agreed ' . iflth the consent of plaintiff to put in a claim under said *493'polioy for the sum of ¡&Í35.00, they did put in the claim, but the amount was rejected by the Insurance Company end the amount they oolleoted due plaintiff was the sum of §65.00, which they allege was tendered to plaintiff, but she refused to aooept, henoe this suit.

The faote .are that plaintiff left her property, de~ soribed by her,in defendants' possession for the purpose of ,choker having same, 'particularly the oape pand/oollar changed to her satisfaction, and the amount -of bill for repairing was thirty dollars; plaintiff swears that there was to have been some Alterations made to the cape in question and that she left it for that purpose, while on the other hand defendsnts end their witnesses swear to the contrary, but state under oath that plaintiff not having sufficient funds in her puree to pey the thirty dollars due- on said debt asked permission to toa» ik am /MBiKx&Htxsxatawit leave same with them until she returned with the money, and that defendants consented thereto, but she took with her the choker and paid the price for repairs thereon,■ the sum of Five Dollars, It would serve no useful purpose to . enter'into the testimony pro end oon. The main faots are that the property woe left in the possession .••• the defendants and a robbery took place at their estsblienment and the loss of the articles in question together with other goods belonging to the defendants were stolen, without their fault nor'through any negligent act of the defendants. It was further stated in the ¡argument in this oaee.by defendsnts' attorney a.nd not denied by plaintiff's attorney, that the aisamifcsii amount col-, lected from the, insurance company on the open polioy of insurance on this particular cape was the sum of §65.00;' that plaintiff refused to accept same, but, insisted that a premise had been made to pay her the sum of §125*00, which, she had accepted prior to this suit. This reoord convinces us that the amount' .of §65*00 as stated. .In the argument was ,ool*494by the defendants and was therefore the property of plaintiff, and it was defendants bounden duty to hove turned this amount over to her and failing to do so, in. order to save oosts and other trouble, to have deposited same together with their answer in this oase, whioh thev failed to do. We see no object in going through the testimony as to whether the property in question was of a better quality as alleged and sworn to by plaintiff or'whether it was of inferior rpiaxi quality as sworn to by witnesses for the defendants. Be that as it may were it not for the feat that the property was oovered by insuranoe and the amount collected,•the sum of $65.00 by the defendants, under the authorities and the Olvll Code "The deposltarv is not liable when the contract with him beoomes a gratuitous deposit." 3937 Oivil CcSde. 25th Ann. 630. "A depositary who uses the same diligenoe in preserving the thing deposited with him es he uses in preserving his own property is not liable for the thing lost through'fire." would prevail-

But when as in this oase an open policy of insuranoe was had. by the defendants and a oertain amount oolleoted on same, part of whioh was on the property of plaintiff and the amount being $65.00, there would be no justloe or equity to permit the defendants to withhold the entire amount or part thereof, belonging to plaintiff. There wa3 no deposit of the sum in question made at the time the answer and exceptions .were filed, and we hold this should hove been done in order to avoid payment of oosts.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the Court aquo, whioh gave plaintiff the sum of $350.00 be a.nd the same is reduced to the sum of 065,00, and to this extent there, will be judgment in favor of plaintiff, oosts of both Courts to be pa-id- by defendants.

-Judgment amended and affirmed-