The opinion
Colt, J.
It was a question of fact to be decided upon all the evidence whether the plaintiff sustained the relation of guest or boarder in the defendant’s inn at the time of the loss of the articles sued for. This question was submitted by the agreement of the parties to the court for determination. In the absence of a specific agreement, its correct decision requires a consideration of the situation of the parties and all the circumstances. If the defendant was only an innkeeper, the presumption would be that a temporary sojourner, in the absence of other proof, must be a guest. Where, in the same house, he carries on the business of innkeeper and keeper of boarders, it is more difficult. The more prominent occupation would perhaps control in a case where there was no other evidence. The duration of the plaintiff’s stay, the price paid, the amount of accommodation afforded, the transient or permanent character of the plaintiff’s residence and occupation, his knowledge or want of knowledge of any difference of accommodation afforded to, or price paid by, boarders and guests, are all to be regarded in settling the question. It is expressly decided, however, in Berkshire Woollen Co. v. Proctor 7 Cush. 417 , 424, that an agreement with an innkeeper for the price of board by the week is not decisive that the relation is that of boarder instead of guest. Story on Bailm. § 477.
Upon the evidence reported in this case it would have been clearly erroneous for the judge to have ruled as matter of law *498 that the plaintiff was a boarder and not a guest. That was a fact to be found on all the evidence by the court, trial by jury having been waived. And unless the evidence is wholly insufficient in law to support a verdict of a jury, no exceptions will lie. If there is any evidence, however slight, proper to be submitted to a jury, it is enough to support the finding. It k not a question of the preponderance or weight of evidence, like that which might arise on a motion for a new trial Forsyth v Hooper, 11 Allen, 419 . Cheever v. Perley, Ib. 584.
Exceptions overruled.