Cunningham v. Kenney

The Court. This is an action to recover three hundred and sixty-nine dollars and forty-five cents, as bailees, for the price of storage by defendant of certain hay in the warehouse of plaintiffs. Defendant had judgment, from which judgment and from an order denying their motion for a new trial plaintiffs appeal.

The cause was tried by the court without a jury. The findings, which are supported by the evidence without conflict, show:

1. That in 1888 the plaintiffs and their grantor and [120]E.-J. Swift, deceased, of whose estate T. V. Mathews is administrator, were the owners of a warehouse in the county of Santa Clara.

2. On or about 'September 1, 1888, 'defendant delivered to plaintiffs for storage in said warehouse certain hay, upon the terms and conditions expressed in an agreement in writing, of which the following is a dopy:

“ YSfigo Rancho Warehouse, ) “Mountain View, Oct. 17, 1888.)

“This is to certify that Mr. Daniel Kenney has this day stored in "sections Of the Ynigo Rancho Warehouse 3,016 bales wheat hay, weighing 720,000 lbs. balers’ weight, subject to the following conditions: The warehouse owner will not be responsible for loss or damage to hay from effect of water, fire, damp, or other causes. Hay stored only "for the season ending June 1st of each year. Rate, $1.00 on balers’ weight. Storage payable only in gold-coin of the United States, and must be paid before withdrawal of the hay. Weighing, 25 cents extra. M. W. Wilcox, Manager,

“ 37 North First street, San Jose.”

3. Said hay remained on storage under said agreement until the seventeenth day of March, 1889, when, without 'the fault of defendant, the said warehouse and and hay were wholly destroyed by-fire.

The answer of defendant charged.plaintiffs with negligence, upon which issue the court did not find, deeming it unimportant, and holding as a conclusion of law that the contract of storage was amenitüre-andmotfa-severable contract, and that as the warehouse and-hay having burned before the -time for the storing of said hay expired, the-agreement of plaintiffs to store the hay until June 1, 1889, was never performed or complied with by them and the storage 'never earned.

The following extract from the opinion of the learned judge who tried the'case in the court below contains a correct exposition of the law applicable to the "case, and is adopted as the opinion of -the court.