Morse v. Imperial Grain & Warehouse Co.

SHAW, J.

Action to recover for 12 sacks of wool deposited with defendant as a warehouseman and which defendant failed to redeliver on demand therefor.

[575]

Judgment went for defendant, from which and an order denying a motion for a new trial made by plaintiffs, they appeal.

The case was submitted for decision upon an agreed statement of facts, the material parts of which are as follows: ‘ ‘ The respective parties hereto . . . agree npon the following statement of facts, and submit the same to the court for the determination of the points in controversy hereinafter specified. The facts agreed upon are as follows: 1. The defendant is ... a public warehouseman. 2. The plaintiffs . . . did, on April 15, 1916, duly deliver to defendant as such warehouseman, 69 sacks of wool for storage, which defendant agreed to receive, keep and store in its warehouse in the city of El Centro ... in accordance with the following warehouse receipt, ’ ’ which receipt, in addition to the matters required to be specified therein by section 2 of “An act to make uniform ,the law of warehouse receipts,” stated the wool was received

“for account and ai the risk of Morse & Brackenberry”;

and also contained a provision that: “The Imperial Grain and Warehouse Company is not responsible for loss occasioned to the merchandise stored with them, by fire or elements.” “4. On July 5,1916, plaintiffs duly demanded a redelivery of said 69 sacks of wool, and then and there offered to pay defendant the full amount of its storage charges thereon. 5. Upon such demand defendant redelivered 57. sacks thereof, but failed and refused to redeliver the remaining 12 sacks thereof, giving as a reason therefor that the 12 sacks, on some date unknown, had disappeared, or were stolen from its said warehouse, without any fault or carelessness, misconduct, or negligence of defendant, or its servants or either of them, and through no lack of ordinary care or diligence on the part of the defendant or its servants and while defendant was using ordinary care and diligence, which plaintiffs contend is no defense to this action, even if true.” By the stipulation, “the points in controversy” as specified for submission to the court for its determination were: “1. Is not the liability of the defendant absolutely fixed by the provisions of its warehouse receipt above set out?” 2. Under the rule of