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degree of care required in protecting a quantity of pig iron as a bale of hemp from exposure to the weather: Holtzclaw v. Duff, 27 Mo. 392. But the aggregate amount of the property makes no difference in the warehouseman's duty as to taking care of it. One who stores with him a single bale of cotton has a right to demand of him the same degree of diligence as one who stores a hundred bales: Hatchett v. Gibson, 13 Ala. 587. Where a loss occurs, the warehouseman has a right to show, if he can, that the goods were delivered to him in a condition unfit for storage, and that the injury occurred from that cause; as where it was claimed that palm-leaf for the manufacture of hats was delivered to the defendant when it was damp. And on the other hand, the bailor in such a case may prove that it was customary to deliver such property to the warehouseman in a damp state, and that it was his duty to take it out of the sacks and expose it to the air: Brown v. Hitchcock, 28 Vt. 452.
WHEN BAILOR REQUIRED TO DISCLOSE VALUE OF PARCEL.-Where baggage is deposited in the baggage room of a railway company subject to a condition printed on the check or deposit-receipt, or otherwise brought to the notice of the bailor, that the company will not be responsible for packages above a specified value, unless the true value is disclosed, and the baggage is beyond that value, which fact is not disclosed to the company, the owner can not recover for its loss even though the company's servants are guilty of negli gence in its storage: Van Toll v. South Eastern Railway Co., 12 Com. B. (N. S.) 75; S. C., 31 L. J., C. P. 241; 8 Jur. N. S. 1213; 10 W. R. 578; 6 L. T., N. S. 244; Harris v. Great Western Railway Co., 1 Q. B. Div. 515; S. C., 17 Eng. Rep. (Moak), 156. In the absence of such a stipulation, unless there should be fraudulent concealment of the value of a parcel, a warehouseman would no doubt be liable for its real value, if lost through his negligence, though its value was unknown to him at the time of the deposit. See Orange County Bank v. Brown, ante, and cases cited in the note thereto. In Clark v. Spence, 10 Watts. 335, which was an action against a warehouseman for the loss of a trunk intrusted to him, it was decided that the contents of the trunk might be proved.
LIABILITY WHERE Goods Stolen. It is perfectly well settled, as laid down in the principal case, that a warehouseman is not liable for goods stolen while in his charge, either by his own servants or by other persons, if he has exercised common diligence, and has taken such precautions as are usual with those engaged in the same business, to protect such goods: Moore v. Mayor etc. of Mobile, 1 Stew. 284; Cincinnati etc. R. R. Co. v. McCool, 26 Ind. 140; Lamb v. Western R. R. Co., 7 Allen, 98; Cass v. Boston etc. R. R. Co., 14 Id. 448; Williams v. Holland, 22 How. Pr. 137; Schwerin v. McKie, 51 N. Y. 180; S. C., 10 Am. Rep. 581; Claflin v. Meyer, 75 N. Y. 260; S. C., 31 Am. Rep. 467; Neal v. Railroad Co., S Jones L. (N. C.) 482. If the whole evidence in such a case is as consistent with the exercise of due care as with the want of it, the warehouseman is not liable: Claflin v. Meyer, 75 N. Y. 260; S. C., 31 Am. Rep. 467. Where it appeared that a railroad warehouse in which the plaintiffs whisky was stored was securely locked and fastened at night, but that a burglar entered through a grain-shoot and bored a hole in the barrel, so that the whisky was lost, it was held that the evidence did not disclose a want of due care: Cincinnati etc. R. R. Co. v. McCool, 26 Ind. 140. Extraordinary and unusual precautions are not necessary. Where it appeared that goods were deposited in a wooden warehouse at a country railroad station, which was kept fastened in the agent's absence, both in the day-time and at night, with iron locks, bolts, and bars, and that the agent resided within two hun
dred yards of the warehouse, it was held that this was sufficient evidence of ordinary care to exempt the defendants from liability as warehousemen for goods stolen from such warehouse: Neal v. Railroad Co., & Jones L. (N. C.) 482. And where the average value of goods stored in a warehouse did not exceed five hundred dollars, it was decided not to be evidence of ordinary negligence to show that a night watchman was not employed: Pike v. Chicago etc. R. R. Co., 40 Wis. 583. But where it appeared that goods were stolen from a warehouse by some person who entered in the day-time and concealed himself until night, it seems to have been considered that it was evidence of negligence in not keeping a proper watch, although it was shown that the warehouse was securely fastened at night: Madan v. Covert, 42 N. Y. Sup. Ct. (10 Jones & S.) 135. In order to exempt himself from liability on the ground that the goods of the plaintiff have been stolen, a warehouseman must do more than show that they might have been stolen by soldiers and freedmen in the vicinity who were commonly believed to be perpetrating such acts: Thomas v. Darden, 22 La. An. 413.
WHERE THE GOODS ARE DESTROYED BY FIRE, the same general principle applies, and the warehouseman is not liable unless the loss was occasioned by want of ordinary care on his part: McCullom v. Porter, 17 La. An. 89; Gibson v. Hatchett, 24 Ala. 201. He is not bound to deposit the goods in a fireproof building unless he has expressly or impliedly contracted so to do. But where he has advertised storage in a fire-proof building, he is liable for a loss occasioned by his failure to store in such a building: Hatchett v. Gibson, 13 Ala. 587; Vincent v. Rather, 31 Tex. 77; unless the owner has expressly or by implication consented to the deposit of his goods in a building which 18 not fire-proof: Hatchett v. Gibson, 13 Ala. 587; Gibson v. Hatchett, 24 Id. 201. And where the agreement is to store goods in a fire-proof building, the warehouseman is not bound to provide apparatus for the extinguishment of fires, such as buckets, etc., unless it is so stipulated in the contract, or there is a usage to that effect: Jones v. Hatchett, 14 Ala. 743. In case of a fire, such that ordinary courage and intrepidity can not overcome it, it is the duty of the warehouseman to remove the goods if possible: Macklin v. Frazier, 9 Bush, 3. This is no more than the ordinary care which one would be expected to take of his own property. But a warehouseman is not liable for the neglect of his servants to remove goods, where they happen to be present at a fire accidentally breaking out in the warehouse at night, for their presence in such a case is not in the course of their employment: Aldrich v. Boston etc. R. R. Co., 100 Mass. 31; S. C., 1 Am. Rep. 76. It is negligence on the part of a warehouseman to leave combustible matter in his warehouse in such a situation that it is likely to ignite, even though such combustible matter is brought into the building by a government store-keeper who has custody of the goods therein jointly with himself: Macklin v. Frazier, 9 Bush, 3. Where it appeared that the fire by which the plaintiff's goods were destroyed was communicated to the wharf where the goods were through intervening structures, from a shifting engine used by the defendants on a track two hundred or two hundred and fifty yards from the wharf, the space between being covered mostly by water, it was held that this evidence was too remote to charge the defendants with negligence: Barron v. Eldredge, 100 Mass. 455.
DESTRUCTION OF GOODS BY RATS.-A warehouseman is not liable for the loss of goods in his warehouse which have been destroyed by rats, if he has taken ordinary precautions to prevent such loss: Edw. on Bail. 295; Story on Bail. sec. 444. Keeping cats about the premises is evidence of common
diligence in such a case: Cailiff v. Danvers, 1 Peake N. P. 155. So keeping a "terrier dog:" Taylor v. Secrist, 2 Disney (Ohio), 299. Keeping a cat on board ship has been held to be evidence of due diligence, so as to render a leak caused by rats "a peril of the sea:" Garrigues v. Core, 1 Binn. 592; S. C., 2 Am. Dec. 493; Aymar v. Astor, 6 Cow. 267. But the contrary was held in Laveroni v. Drury, 16 Eng. L. & Eq. 510; S. C., 16 Jur. 1024; 22 L. J. R. (N. S.) Exch. 2, where Pollock, C. B., intimated that a more efficient method of protecting a vessel and its cargo from rats might be provided "by no very extraordinary degree of diligence.”
DISPOSSESSION BY LEGAL PROCESS OR OVERWHELMING FORCE.-Where a bailor of goods has no title, and they are taken from the warehouseman by authority of law as the property of a third person, the warehouseman may show this in an action against him by the bailor: Burton v. Wilkinson, 18 Vt. 186. Where goods were deposited with the defendant as a warehouseman, by the agent of the owner, who notified him not to deliver them except upon his order, and the owner afterwards informed the defendant that the goods were his, and that he must not permit them to be taken away without his order, to which he assented, and the plaintiff soon after demanded the goods and offered the defendant a bond of indemnity and payment of his charges, but the defendant refused to deliver them, and they were subsequently levied upon and sold on an execution against the agent, it was held in an action against the defendant by the owner that the defendant was not bound to resist such levy and sale, and was not guilty of negligence or want of care in omitting to do so: Ball v. Liney, 44 Barb. 505. But the decision in this case was reversed in Ball v. Liney, 48 N. Y. 6; S. C., 8 Am. Rep. 511; and it was decided that the defendant was liable for the value of the goods, on the ground that he should either have given them up or have filed a bill of interpleader to determine the rights of the parties, and that the levy and sale under the execution did not mitigate the damages, although the sheriff had at the same time an execution against the plaintiff under which nothing had been done.
Where the warehouseman is deprived of his possession by an overwhelming force, if there has been no want of due care on his part, he is not liable for the loss of the goods. It was so ruled in Babcock v. Murphy, 20 La. An. 399, where the goods were taken possession of by the confederate authorities under a forced sale by the owner's agent, and were afterwards seized by the United States as confederate property. But it seems that such a dispossession will not exempt the warehouseman from liability, if he has not exercised due care in preserving the goods: Schwartz v. Baer, 21 La. An. 601; Smith v. Frost, 51 Ga. 336.
DELIVERY OF GOODS TO A THIRD PERSON BY MISTAKE or negligence renders a warehouseman liable for a conversion of them: Willard v. Bridge, 4 Barb. 361; Collins v. Burns, 63 N. Y. 1; Alabama etc. R. R. Co. v. Kidd, 35 Ala. 209; Jeffersonville R. R. Co. v. White, 6 Bush, 251; Devereux v. Barclay, 2 Barn. & Ald. 702. So though the delivery is only permissive, as where the goods are removed by such third person, with the assent or knowledge of the warehouseman or his agents: Lichtenhein v. Boston etc. R. R. Co., 11 Cush. 70. So where the goods are left in the warehouse by the warehouseman on his moving into another building, and are delivered to a third person by his successors in the former warehouse: Dufour v. Mepham, 31 Mo. 577. The warehouseman can not excuse himself from liability for a delivery to a stranger, not the owner, by showing that he exercised ordinary care and prudence, and was laboring under an honest mistake, for such de.
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livery "overrules all such grounds of excuse:" Lichtenhein v. Boston etc. R. R. Co., 11 Cush. 70. And it was held in Compton v. Shaw, 1 Hun, 441; S. C., 3 Thomp. & C. 761, that a warehouseman was liable to the carrier from whom he received the goods, for delivering them to the consignee without payment of the freight, contrary to instructions. Where goods are removed from the warehouse by a stranger by mistake, without the knowledge or ascent of the warehouseman or his servants, the warehouseman is not liable if he can show that he exercised ordinary care and diligence as to the custody of such goods: Lichtenhein v. Boston etc. R. R. Co., 11 Cush. 70. livery is in accordance with the directions of the person from warehouseman received the goods, he is not liable. In Parker v. Lombard, 100 Mass. 405, it appeared that the defendant hired a warehouse containing certain goods on storage, and received a list of the owners, in which, by mistake, a quantity of cotton belonging to the plaintiff was credited to another person. The plaintiff held a warehouse receipt for it, but there was no usage in the city to give or take such receipts. After the lapse of some eight months, the defendant, having no knowledge of the real ownership of the cotton, notified the person named as the owner in his list to come and take it away, which he did. Upon these facts, it was held that the defendant, having honestly complied with his instructions, was not liable for negligence in not ascertaining the real ownership of the cotton, nor for a conversion. In this connection it is proper to remark that trover does not lie against a warehouseman for the mere non-delivery of goods unless they are in his possession, and he refuses to deliver them on demand, nor for goods lost or stolen through his negligence, but there must be some positive act of conversion: Alabama etc. R. R. Co. v. Kidd, 35 Ala. 209. The rule is the same with respect to a common carrier: Packard v. Getman, 21 Am. Dec. 166.
Under this head of delivery to a wrong person may be classed the case of a forwarding merchant who mismarks goods, so that they do not reach the real consignee. Thus, in Forsythe v. Walker, 9 Pa. St. 148, the facts were that the plaintiffs consigned certain goods to Galena, marked "J. F., Galena." The defendants, forwarding merchants, received them and inserted in the bill of lading the name of "J. Flanagan," as consignee, and shipped them to a forwarding house at St. Louis, where they were seized and sold under an execution against Flanagan; and it was held that the loss was occasioned by the defendants' negligence, and that they were liable.
WAREHOUSEMAN RECEIVING WHEAT AND MIXING it with his own, and shipping it away, would be liable for its value, even though he should supply its place with other wheat procured and deposited in his warehouse, and the accidental destruction of the warehouse with the substituted wheat in it would not protect him. But if he mixes the wheat with his own with the owner's consent, and according to the usage of trade, with the understanding that he is to retain or ship it at pleasure, and on presentation of the warehouse receipt is either to pay the market price or to deliver the same or other wheat, the transaction is a sale, and not a bailment, and the property being in him, if it is lost he must bear the loss: Chase v. Washburn, 1 Ohio St. 244. In Ives v. Hartley, 51 Ill. 520, it is decided that where a warehouseman receives grain, the implied agreement is, that it is to be returned in the same condition in which it is received, and that, if mixed with the warehouseman's own grain with the owner's consent, it is to remain with the warehouseman until demanded. And if the warehouseman converts it into flour and sells it, the owner may waive the tort, and sue in assumpsit for the price received for the flour. In Young v. Miles, 23 Wis. 643, it was determined that where
the plaintiff's grain was stored in mass with other grain in a warehouse, with the plaintiff's consent, and after various shipments by the warehouseman the amount remaining was no more than what was due to the plaintiff, such remainder was the plaintiff's absolute property, and that a sale of it by the warehouseman without his consent was a conversion.
EVIDENCE OF NEGLIGENCE IN PARTICULAR CASES.-In addition to the instances referred to under other heads, in which warehousemen have been held chargeable with a want of due care and diligence, may be mentioned the following: Where one who is liable in the character of a warehouseman deposits cotton or other property liable to injury by the weather on open ground, owing to his having no building in which to store it, he is clearly liable on the ground of negligence for any damage occasioned by his failure to adopt the usual methods of protecting such property out of doors: Holtzclaw v. Duff, 27 Mo. 392; Mitchell v. Lancashire etc. Railway Co., L. R., 10 Q. B. 256; S. C., 44 L. J., Q. B. 107; 33 L. T. 61; 23 W. R. 853; 12 Eng. Rep. (Moak), 28. So where one liable as a warehouseman permitted cotton intrusted to him to remain with the roping off, the bagging torn, the cotton loose, and the under bales in the water and mud, so that it became weather-stained and much of it was destroyed, it was held that this was sufficient evidence of a want of ordinary care: Morehead v. Brown, 6 Jones L. (N. C.) 367. And in that case it was decided that the custom of the place, as to keeping and storing cotton, might be shown. Disobedience of instructions also will be sufficient proof of want of due care. Thus, where a wharfinger received grain which he was directed to ship to a certain party, and that direction was afterwards countermanded and he was instructed to ship the grain to another party, but neglected to do so and shipped it to the person first named, who had become insolvent, he was held liable to the shipper: Howell v. Morlan, 78 Ill. 162. Omission to give reasonably prompt and direct notice to the consignee, of the arrival of goods, will also render a wharfinger liable for a loss occasioned thereby: Cox v. O'Riley, 4 Ind. 368.
Extraordinary vigilance and care, however, are not demanded of those who are liable in the character of warehousemen, as many of the cases cited elsewhere in this note abundantly show. A warehouseman is not bound to anticipate an extraordinary freshet, and if his warehouse is located above the ordinary high-water mark, and if, when the water unexpectedly rises beyond that mark, he takes reasonably prompt and prudent steps to protect the property in his charge, but such property is lost or damaged in spite of his exertions, he is not liable: Cowles v. Pointer, 26 Miss. 253; Knapp v. Curtis, 9 Wend. 60.
THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE NO DOUBT APPLIES to this as well as to other cases of liability for negligence. Hence, if the plaintiff's own want of care has contributed to his injury, where goods intrusted to the defendant as a warehousman have been lost or damaged, he can not recover. This is seen in the case of Gibson v. Hatchett, 24 Ala. 201, referred to in another part of this note, where it was held that, although the defendant agreed to store the plaintiff's cotton in a fire-proof building, yet if the plaintiff had afterwards tacitly assented to its storage in a building which he knew not to be fireproof, he could not recover for a loss by fire. So in Smith v. Frost, 51 Ga. 336, also referred to elsewhere, where the plaintiff was held to be debarred of his right of recovery, on the ground of his own negligence in omitting to rescue his cotton when he saw it thrown into the street. So where it is claimed that goods have been injured by storage in an improper place, the warehouseman may show that the plaintiff himself selected the place: Brown v. Hitch