Gafford v. Globe Transfer & Storage Co.

• Decision Date: 06 December 1912
• Citation: 128 P. 228,71 Wash. 204
• Court: Washington Supreme Court
• Parties: GAFFORD v. GLOBE TRANSFER & STORAGE CO.

128 P. 228

71 Wash. 204

GAFFORD v. GLOBE TRANSFER & STORAGE CO.

Supreme Court of Washington

December 6, 1912

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by W. H. Gafford against the Globe Transfer & Storage Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Totten & Rozema, of Seattle, for appellant.

Walter S. Fulton and Arthur P. Redman, both of Seattle, for respondent.

GOSE J.

This is an action to recover damages flowing from an alleged breach of a contract of bailment. The plaintiff prevailed in the court below, and the defendant has appealed.

The admitted facts are that the appellant was conducting a general storage and warehouse business in the city of Seattle; that on the 1st day of September, 1910, it received the respondent's household furniture, goods, and effects in storage in its warehouse; and that they were subsequently damaged by fire on the first floor therein. The respondent offered evidence to the effect that there was an express oral contract that the goods should be stored on the fourth floor of the warehouse, and that pursuant to that arrangement he delivered the goods to the appellant for storage. On the 8th day of September the appellant mailed a warehouse receipt to respondent, which recites, among other things: 'Receipt for goods stored * * * at 530 First Avenue So. Seattle, September 1, 1910. Received in storage from W. H. Gafford the goods and property enumerated below to be stored and delivered at this warehouse upon return of this receipt, properly indorsed, and payment of charges,' etc. The receipt was received by the respondent in due course of mail. Some six weeks or two months later, the respondent was in the warehouse, observed that the goods were stored on the first floor, and says that he told the appellant's manager that the goods had not been stored according to the agreement; that he was not satisfied with the place where they were stored; that the manager said, 'Isn't that a good place to store them?' and that he replied 'No,' and protested against it. The manager testified that the respondent on that occasion asked him 'why the goods were stored there,' that he explained the reason and that the respondent 'made no protest at the time.' The case was tried to a jury, and the correctness of the instructions is not questioned.

The appeal presents two questions: (1) Was parol testimony admissible to prove a contract to store the goods on the fourth floor? (2) If so, did the respondent as a matter of law waive the right to stand upon his contract?

We think the respondent was entitled to prove the actual contract. He stored the goods pursuant to that arrangement. He asserts that the warehouse receipt which was mailed to him after he had stored his goods does not express the contract. Windell v. Readman Warehouse Co., 30 Wash. 469, 71 P. 56; McCurdy v. Wallblom Furniture, etc., Co., 94 Minn. 326, 102 N.W. 873, 3 Ann. Cas. 468; 4 Am. & Eng. Ency. Law (2d Ed.) 519. In the Windell Case the warehouse receipt was mailed to the bailor after the goods had been received in storage. There, as here, the bailor was permitted to prove the actual contract. The bailee objected to the testimony, on the ground that it tended to vary and contradict the terms of the warehouse receipt. In passing upon the admissibility of the evidence, the court said 'But the warehouse receipt was written and signed by only one of the parties, and it must embody the real contract made between the parties. * * * The warehouse receipt must be based upon the agreement of the parties, or assented to by the plaintiffs. If an oral contract has preceded it, its terms must be embodied in the receipt. The vital question, then, is one of fact. The evidence was heard and weighed by the jury under proper instructions from the court. If the evidence on the part of the plaintiffs is believed, an oral contract was made, and its terms are not embodied in the receipt, and the terms contained in the receipt were not understood or assented to by plaintiffs.' This is but another way of saying that, if the plaintiff's testimony was true, the minds of the parties met upon the oral contract...