272 F. 404 (1st Cir. 1921), 1371, Berio v. Gay

Docket Nº:1371.
Citation:272 F. 404
Party Name:BERIO v. GAY et al.
Case Date:April 20, 1921
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 404

272 F. 404 (1st Cir. 1921)

BERIO

v.

GAY et al.

No. 1371.

United States Court of Appeals, First Circuit.

April 20, 1921

Page 405

Hugh R. Francis, of San Juan, P.R. (Francis & de la Haba, of San Juan, P.R., on the brief), for plaintiff in error.

Henry G. Molina, of San Juan, P.R. (M. Rodriguez Serra, of San Juan, P.R., on the brief), for defendants in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

In the complaint in this case the plaintiff alleged that he was the owner of six boxes and one bale of dry goods, all of the value of $1,492.26, which were taken on or about August 3, 1914, by the defendants, without any authority from him, from the American Railroad station at Bayamon, Porto Rico, and carried to their storehouse at Corozal, Porto Rico; that the defendants

Page 406

had continued in possession of the goods, and, although requested to deliver them to him, they had refused to do so. The plaintiff prayed judgment for the delivery of the goods or their value, to wit, the sum of $1,492.26, together with costs and disbursements.

In their answer the defendants admitted that they received the goods on or about said date and carried them to Corozal, but claimed that they did so with the consent and at the request of the plaintiff, in accordance with an agreement with him. They denied that, at the time of the commencement of this action, they or either of them were in possession of the goods described in the complaint, and they further alleged that all of said goods were totally destroyed by fire at Corozal on the night of August 3 or 4, 1914, and that they were in no way responsible for said fire, and never received any sum or sums whatever for the loss of said merchandise.

The plaintiff admitted that he made a contract with the defendants to transport a particular shipment of goods received by him at one of the railroad stations in Bayamon, but denied that this contract covered goods consigned to him and received at the American Railroad station.

The defendants claimed that their contract with the plaintiff covered the transportation of all goods consigned to the plaintiff and received at either railroad station at Bayamon.

The storehouse of the defendants in Corozal, where the defendants placed the goods, was a back room of their store; and on the night that the goods were placed in the storehouse a fire broke out in an adjoining building, and quickly spread to the defendants' store, and completely destroyed it. There was no evidence that the fire was caused by any negligence of the defendants; but all the evidence showed that it originated in a building occupied by another. There was conflicting evidence in regard to the destruction of the plaintiff's goods. Witnesses for the plaintiff testified that boxes were taken out of the front door of the store into the street, and across to the plaza of a church nearby, and also that a box was taken out from the back storeroom through a side door into an alleyway, and there was testimony that one or more of the boxes, upon which were the initials of the plaintiff's name, were in a mass of goods in front of the store after the fire, and the consignor testified that the cases had upon them the initials of the plaintiff's name.

The defendants, on the other hand, and several witnesses, testified that all the goods of the plaintiff were totally destroyed by the fire. The plaintiff testified that he went to Corozal the next day after the fire and was informed by one of the defendants that all of his goods had been burned. He at first brought an action against the American Railroad Company, claiming that it had no authority to deliver the goods to the defendants, but was unsuccessful. In October, 1916, more than two years after the...

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