Commercial Acetylene Supply Co. v. Fox

NOURSE, J.

Judgment in the sum of $400 was rendered in favor of plaintiff and against defendant in this action, from which the latter appeals.

The action (which was tried on an agreed statement of facts) was for damage to four gas cylinders, of the value of $440, owned by plaintiff, and which were almost totally destroyed by fire while in the possession of defendant, without negligence on his part. Their value, when subsequently returned to the plaintiff, was but forty dollars. The cylinders contained acetylene gas sold by plaintiff to defendant upon a contract in the form of a letter addressed by plaintiff to defendant and accepted by the latter. It provided as follows:

“We acknowledge, with thanks, your order for one tank of acetylene, which we are shipping today via Southern Pacific freight. This cylinder is the property of this company and valued at $110. It is merely loaned you while you are using the gas contained therein. Refilling of same, except by us, or the reloaning of any cylinder without our written consent is prohibited. When empty they are to be returned to us at West Berkeley, via Southern Pacific freight, charges prepaid. You are also responsible for any

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damages to any of our cylinders while they are in your possession or care, and we hold you responsible for same until they are received back at our plant. Any cylinders lost in transit to us are to be traced by you until located and if this cannot be done, you are to enter claim with railroad or express company for the value of the cylinders. We require this as our gas is sold f. o. b. West Berkeley, Cal. We reserve the right to charge rental on cylinders retained by you in excess of thirty days. The above is equally applicable to future orders for acetylene except that should you at any time receive different size cylinders the value of same will vary accordingly. Kindly sign and return duplicate of this agreement, sent you herewith.

“Yours very truly,

“Commercial Acetylene Welding Co.

“(Signed) A. R. Chandler.

“Accepted.

“ (Signed) Márkovits & Fox.