Tallahatchie Compress & Storage Co. v. Hartshorn , 125 Miss. 662 ( 1921 )

Sykes, J.,

delivered the opinion of the'court.

The appellee, Mrs. Hartshorn, plaintiff in the circuit court, sued the appellant compress company for the value of seventy-four bales of cotton destroyed by fire. Tbe declaration contained three counts. The first count alleged that the defendant had agreed with plaintiff to store her cotton in the brick compartment of the defendant’s warehouse, and breached this agreement and stored the cotton in the wooden compartment, and that while the cotton was in the wooden compartment it was totally destroyed by fire. The second count alleged that plaintiff had been a customer of the defendant for several years, and was in the habit of storing her cotton in the defendant’s warehouse. The plaintiff realized the danger of storing cotton in the wooden compartment, and had instructed the defendant to store her cotton in the brick compartment, where it would be safe from fire, and that the defendant, in recognition of this request, had stored plaintiff’s cotton in the brick compartment, whereby a custom had arisen between plaintiff and defendant, in consideration of her patronage, and that it had therefore become the duty of the defendant to store all of plaintiff’s cotton in the brick compartment,, and that in violation of this custom defendant had stored the cotton which was destroyed in the wooden compartment. These two counts were for breach of contract. The third count was based in tort. It is unnecessary to state it because a nonsuit was taken as to this count by plaintiff. Because of this non suit it is also unnecessary to notice the demurrer of defendant to the declaration, which demurrer had been overruled by the court, because the taking of the nonsuit as to the count in tort left the declaration only stating a cause of action for breach of contract. There was a recovery by plaintiff in the circuit court in acordance with the declaration, and the appeal is here prosecuted by the defendant in the lower court.

The testimony for the plaintiff is to the effect that some time in August, 1917, about the time the plaintiff began picking cotton, her husband had a conversation with the superintendent of the defendant company, in which conversation plaintiff’s husband stated to the superintendent that plaintiff desired Her cotton stored in tbe brick compartment of tbe compress; that the reason he stated to tbe superintendent why be wished it placed in tbe brick compartment was because tbe insurance rate was cheaper there than in tbe wooden compartment. He states also as a further reason why be wished it placed there was because it was safer from fire in the brick compartment.

Tbe son of tbe plaintiff also testified that before any cotton was brought to tbe compress that year be bad a conversation with tbe superintendent of tbe compress company in which he told the superintendent to put his mother’s cotton in tbe brick compartment, and that tbe superintendent agreed to do so, and that it was because of this agreement that be stored the cotton with tbe defendant company; that the reason they wished tbe cottop. stored in tbe brick compartment was because they did not expect to sell it as fast as it was gathered and they thought it was safer in tbe brick compartment.

This oral agreement to store plaintiff’s cotton in tbe brick compartment is denied by tbe defendant’s witnesses.

Tbe plaintiff’s testimony is to tbe effect that because of tbe promise to store their cotton in tbe brick compartment they delivered it to tbe defendant company. Upon receipt of a bale of cotton this company issued to plaintiff a warehouse receipt for each bale of cotton. These receipts are all similar, and are as follows:

“Tallahatchie Compress & Storage Company,

Tag No. -.

“Greenwood, Miss.-.

“Have received from-one bale of cotton.

Weight.marked as per margin hereof which they agree to deliver upon the return of this

Marks.receipt and payment of all charges. Acts of Providence, fire and old damages ex-

Numbers.cepted. Posession of this receipt evidences title of property.

Condition.

“-, Superintendent.”

The testimony shows the plaintiff’s cotton was actually stored in a wooden compartment, and while in a wooden compartment was destroyed by fire of an unknown origin; that, if the cotton had been stored in the brick compartment, it would not have been destroyed by this fire.

There are two principal contentions of the , appellant which deserve our notice. The first is that the warehouse receipt in this case is the written contract and the sole evidence of the contract, and affirmatively exempts the defendant from liabilities for fire. As will be noted this warehouse receipt does not embody all of the terms of the contract of bailment. The amount of charges per month are not stated on this receipt, and it is also silent as to the place of storage. There is a clause contained therein which is evidently meant to exempt the compress company from loss by “acts of providence, fire and old damage excepted.” It is the contention of the appellant that all testimony relating to the verbal agreement to store the cotton in the brick compartment of the warehouse was inadmissible because the receipt itself was the written contract. This receipt does not attempt to state all of the terms of the bailment. As a contract it is incomplete upon its face. That being true, it is competent to prove by oral testimony agreements relating to this bailment which did not vary, alter, or contradict the contractual parts of the warehouse receipts.

This rule is aptly stated in vol. 27, R. C. L. p. 964, par. 19, as follows:

“So a warehouse receipt may recite so little of the agreement between the parties that it does not rise to the dignity of a contract, and in such a case evidence may. be received as to the terms of the contract, and when a warehouse receipt specifies no particular place for the storage of the goods, evidence is admissible to show7 a prior parol agreement which does so specify.”

In the case of Baum v. Lynn, 72 Miss. 932, 18 So. 428. 30 L. R. A. 441, this court quoted with approval the rule laid dovm in Stephens on Evidence, wrhen parol testimony could be introduced to prove w7hat are called collateral contracts; that is, contracts not evidenced by the written one, but which constitute the consideration upon which the written one in turn rests. In this rule Mr. Stephens states that parol evidence may be introduced to show:

“(2) The existence of any separate oral agreement as. to any matter on which a document is silent and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.”

This identical question is so decided in the case of McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N. W. 873, also reported in 3 Ann. Cas. 468.

The court was correct in permitting this oral testimony as to the agreement to store the cotton in the brick compartment.

It is next contended by the appellant that there can be no recovery, because the fire and the consequent' loss by fire Avas not the proximate result of the breach of the contract complained of. Appellant relies upon the cases of Wharfboat Ass’n v. Wood, 64 Miss. 661, 2 So. 76, 60 Am. Rep. 76; Railroad Co. v. Millsaps, 76 Miss. 855, 25 So. 672, 71 Am. St. Rep. 543; and Anderson v. M. & O. R. R. Co. (Miss.), 38 So. 661. In these thpee Mississippi cases the gravamen of the offense was the negligence of the defendants in failing to ship cotton within a reasonable time or a negligent delay in shipping cotton. The cotton in each instance was destroyed by fire. These fires were not caused by any negligence of the defendants. In these cases the court held that the negligence of the defendants, that is, the unreasonable delay in the shipping of the cotton, Ayas not the proximate cause of the injury to plaintiffs, but that the proximate cause of this injury was the fire.

In this case, however, we are presented Avith a different question. This suit is for the breach of the contract, the contract being to store the cotton in the brick compartment, and the breach consisting of its being stored in another compartment, namely, a wooden compartment. The testimony of the plaintiffs shows that they made this agreement because they could get cheaper insurance when the cotton was stored in the brick compartment, and for the further reason that they knew it was a safer place for their cotton to be stored. The testimony shows that it was less apt to be destroyed by fire when in the brick compartment. In fact, the very testimony which shows that the insurance was cheaper in the brick compartment would lead one at once to believe that for this reason it was less apt to be destroyed by fire when stored in the brick compartment. There was a total breach of the contract of bailment. The great weight of authority in a case of this kind is that, where there has been a total breach of the contract of bailment, and the goods have been injured or destroyed, whereas if the contract had been complied with there would have been no injury or destruction, then the plaintiff is entitled to recover. A few cases can be found upholding the contrary doctrine. Among these few is that of McRae v. Hill, 126 Ill. App. 349.

When a warehouseman agrees to store goods in a particular place and complies with his contract, he is, of course, not liable for the loss of these goods, unless this loss be due to his negligence. This rule is elementary. But when he agrees to store goods in a particular place and stores them in a different place, he has breached his contract of bailment, and is therefore responsible for the return of the goods or for their value. He stores them in a different place at his own peril. This rule is thus laid down in Elliott on Contracts, vol. 4, section 3100:

“The warehouseman must comply with the contract of storage. If he has contracted to store goods in a specified warehouse, or in a particular place, and stores them in a different place, it is at his own risk, and he is liable for any injury which occurs, even without his own negligence.”

To the same effect are 40 Cyc. 431; 27 R. C. L. 999; 6 C. J. 1111; Wiley v. Locke, 81 Kan. 143, 105 Pac. 11, 24 L. R. A. (N. S.) 1117, 19 Ann. Cas. 241. Copious notes reviewing practically all of the decisions upon this subject are found in tbe last two reports. ^

Another late case upon the subject is-that of Mortimer v. Otto, 206 N. Y. 89, 99 N. E. 189, reported in 31 Ann. Cas. 1914A, 1121. That case is quite similar to the one under consideration. In the Otto Case the agreement was to store certain household furniture in a specified room. In violation of this agreement they were stored in another building and destroyed by a fire which originated Avithout any negligence on the part of the defendant. Among other things, it is said in the opinion that:

“They [the defendants] by their express agreement subjected themselves to the additional obligation that they would store the goods in a specified place. No degree of care or vigilance, short of complete performance Avould relieve them of that obligation. ... .

“The plaintiff and her assignor Avere depositing their property with the defendants, and a regard for its safety and security while in the keeping of the defendants was obviously Avithin their contemplation and, it may . . . be assumed, known to the defendants. For the purpose of making effective that regard, they, with the permission and concurrence of the defendants, selected the precise place of storing. Fire is an ordinary and frequent agency of destruction or injury, and safety as against it was in the contemplation of the parties when they agreed that the property should be stored in. the specified room. Had the property been there stored, the plaintiff and her assignor would have assumed all the risks of injury to it except those ordinarily imposed by law upon the defendants as bailees. When, however, the property was burned in the building in which the defendants in fact placed it, the consequent loss and damage was that which the parties ap•prehended and sought to avoid through the agreement that the property should not be there, and the defendants must indemnify the plaintiff therefor.”

The plaintiff’s testimony showed a special agreement to store her cotton in the brick compartment. The uncon-tradicted testimony showed that the cotton was stored in the wooden compartment and there destroyed by fire, and that, had the cotton been stored according to contract in the brick compartment, it would not have been burned or damaged.

Under this testimony the plaintiff was éntitled to recover, and the judgment of the circuit court is affirmed.

Affirmed.