Bro v. Merch.S'. Cold Storage &. Ice Mfg. Co

• Decision Date: 12 June 1924
• Citation: 123 S.E. 505
• Court: Virginia Supreme Court
• Parties: J. A. HEISLER & BRO. v. MERCHANTS'. COLD STORAGE &. ICE MFG. CO.

123 S.E. 505

J. A. HEISLER & BRO.

v.MERCHANTS'. COLD STORAGE &. ICE MFG. CO.

Supreme Court of Appeals of Virginia.

June 12, 1924.

Error to Hustings Court, Part 2, of Richmond.

Action by J. A. Heisler & Bro. against the Merchants' Cold Storage & Ice Manufacturing Company. Judgment for defendant, and plaintiff brings error. Dismissed.

Bethel & Williams, of Richmond, for plaintiff in error.

John B. Lightfoot, Jr., of Richmond, for defendant in error.

BURKS, J. This was an action to recover damages for the breach of a cold storage contract by which the defendant undertook "to take due and proper care" of 180 bags of onions. There was a verdict and judgment for the defendant.

The notice of motion put a value of $1.70 per bag on the 180 bags, amounting to $306, and claimed for a total loss by reason of negligently permitting the temperature to get so low as to freeze the onions. It was incumbent on the plaintiffs to prove the extent of their loss.

So much of the notice as need be recited was as follows:

"That heretofore, to wit, on the 20th day of October, 1920, we did enter into an agreement with you by which you agreed to store for us a large quantity of onions, to wit, two hundred and twenty-eight (228) sacks; that you further, at the same time did contract and agree with us for a price and consideration to be paid by us to take due and proper care of the said onions, and to so govern and regulate the temperature to which the said onions were exposed that the said onions would be preserved and protected, and would later, whenever requested by us, be delivered to us in good and proper condition, free from damage or defect of any kind whatever; that you did, however, wholly fail to carry out the said agreement and did fail to preserve and so regulate the temperature to which said onions were exposed as aforesaid, and that you did, in violation of your agreement negligently permit the said onions to become exposed to a low temperature so that the said onions became frozen, damaged and ruined, as a result of the said negligence as aforesaid; that by reason of the said negligence as aforesaid and the failure on your part to protect the said onions and care for them as aforesaid the same were damaged and ruined to the extent of one hundred and eighty (180) sacks of the value of $1.70 per sack, making up the $306.00, with interest from the date aforesaid."

There were originally 228 bags put in storage, but 48 bags had been withdrawn in good condition. On March 21, 1921, 15 bags were withdrawn but refused by the plaintiffs on the ground that they were frozen, but upon that question the evidence was conflicting. As to the condition of the residue of 180 bags, the general manager of the defendant company testified:

"That on July 20, 1921, an inspector from the United States Department of Agriculture, Bureau of Markets, inspected the plaintiff's onions in defendant's storage plant and reported as to condition that from 65 to 75 per cent. were then sound and free from decay, while of the remainder some were sprouting and others showed decay ranging from a few outer scales to complete decay."

Another witness for the defendant, a mem-ber of the firm of Blalock Fruit & Produce Company, testified:

"That shortly after March 21, 1921, he examined plaintiff's onions in the cold storage; they were piled high in racks and seemingly in good condition. He examined the contents of six sacks and found no injured or frozen onions."

It is true that the man who sold the onions to the plaintiffs testified that—

He "examined the onions and they were frozen, and that many of the bags were soggy and there was a little mold, and that this soggy condition resulted from their having been frozen and thawing, and that after being frozen onions deteriorate very rapidly and were not saleable."

But it will be observed that he does not state that the loss was a total loss, and does not undertake to fix the amount of the loss or damage, nor does he state the nature or extent of his examination. His evidence is given in narrative form, and the whole of it on this subject is given above. While the plaintiffs claim a total loss in their notice, the testimony of the only one of them offered as a witness in the case does not sustain the claim. His testimony on the subject was as follows:

"That on November 2, 1920, 28 bags of onions were withdrawn from the storage, on November 8, 1920, 15...