Kennedy v. Portmann

• Decision Date: 09 December 1902
• Citation: Kennedy v. Portmann, 70 S.W. 1099, 97 Mo. App. 253 (Mo. App. 1902)
• Parties: KENNEDY v. PORTMANN et al.
• Court: Missouri Court of Appeals

70 S.W. 1099

97 Mo. App. 253

KENNEDY v. PORTMANN et al.

Court of Appeals at St. Louis, Missouri.

December 9, 1902.

WAREHOUSEMEN — CONTRACT — LOCATION OF WAREHOUSE — EVIDENCE — INSTRUCTIONS — EXCESSIVE VERDICT.

1. Where, in an action to recover for damages by fire to goods stored with defendants, plaintiff's agent, who made the contract for storage, and her companion, testified that while negotiating the contract she inquired of one of defendants the number of their warehouse, for purposes of insurance, and he gave the number of the office, while the goods were stored and injured at another place, such evidence was sufficient to go to the jury as to whether there was a contract to store at the number so stated.

2. Where, in an action to recover for damages by fire to goods stored with defendants, there was evidence to go to the jury as to whether the contract was to store at "No. 2801 Cass avenue," but none that the location of such number was mentioned, an instruction leaving to the jury to determine whether defendants agreed to store at "No. 2801 Cass avenue, at the northwest corner of Twenty-eighth and Cass avenue," was error.

3. Where there was evidence that, while making the contract of storage, plaintiff's agent asked for the number of defendants' warehouse, stating that she wished to insure the goods, and that one of defendants answered, "No. 2801 Cass avenue," an instruction that, if he so stated, the contract then made was to store the goods at such number, was error.

4. Where, in an action to recover of a warehouseman for goods partly destroyed and partly injured by fire, there was no evidence as to the value of the goods destroyed, and the evidence was conflicting as to the damage to those injured, there is no basis on which to fix the amount which should be remitted from a verdict which largely exceeds any evidence as to the amount of damage to the injured property, and a new trial should be had.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by Nora Kennedy against F. H. Portmann and another. From a judgment for plaintiff, defendants appeal. Reversed.

Geo. W. Lubke, Jr., for appellants. Albert C. Davis, for respondent.

GOODE, J.

Nora Kennedy, the plaintiff, through the agency of her daughter Loretta, made a contract with the defendants in June, 1900, for the storage of certain household furniture; plaintiff being at the time in the city of New York. This is an action to recover damages on account of the property being partly destroyed and partly injured by a fire while in storage, and the gravamen of the petition is that the defendants deviated from the contract of bailment, by storing the property in a building at the rear of No. 1519 North Jefferson avenue, constructed of inflammable material and surrounded by frame stables, instead of in a substantial brick building on the northwest corner of Twenty-eighth street and Cass avenue, designated as No. 2801 Cass avenue, in which building, it is charged, the defendants had agreed to store the property. The petition gives 2800 as the number, but the evidence tends to prove a contract to store at 2801, on the opposite side of the street, and it may be that the number in the petition is a mistake; at all events, no point is made about it. Defendants had been in the warehouse business for about 15 years, and their warehouse and place of storage was located in the rear of Elliott avenue, — Nos. 1514 to 1526; and that was the building in which plaintiff's goods were stored. Defendants never had a warehouse at either 2800 or 2801 Cass avenue, but did have an office in the latter building, and sold furniture there. Their...