Rudell v. Grand Rapids Cold-Storage Co.

Grant, J.

(after stating the facts). 1. Defendant’s agent, whiie at plaintiff’s house soliciting her patronage, was shown some of the butter, the manner in which it was put up, and a small cold-storage room in which she kept what butter she could. That butter was made and put up in substantially the same manner as was that deposited by her with defendant. Defendant’s agent testified that she told him that she had no difficulty in keeping butter in that room. Plaintiff was permitted to show that that butter kept well. She was also permitted to show that the butter of one Monteith, deposited in the defendant’s plant at the same time with that of the" plaintiff, became damaged. There was no error in admitting this .evidence. Plaintiff testified that she told defendant’s agent that she knew nothing about cold-storage plants. She showed him how she kept her butter of the same kind as that about which they were contracting, and told him that it kept well at a certain temperature. It was competent to show that that butter kept well, and also that other butter of like grade, deposited in the defendant’s storage plant at the same time, was damaged. Townsend v. Rich, 58 Minn. 559 ( 60 N. W. 545 ). If other butter under like conditions kept well while that of plaintiff did not, it would naturally lead to the conclusion that the fault was inherent in the butter,. and not to any negligence of defendant. The converse of the proposition would be equally true.

*531 2. It is insisted that the record conclusively shows that plaintiff, soon after discovering that the butter was damaged, was offered within a half a cent of the then market price, and that it was her duty to accept the offer. The court refused to so instruct the jury, and instructed them that it was the duty of the plaintiff to use good faith, good judgment, and reasonable effort in disposing of the butter, with no more loss than was necessary. We think the evidence does not sustain defendant’s claim. The witnesses were not fully agreed as to the extent of the injury. There was evidence that it was slight, and not easily detected except by those of experience. Defendant’s engineer thought that by lowering the temperature he could freeze the bad taste out. The term of bailment had not expired. Defend - ant did not ask plaintiff to take the butter from its custody and dispose of it. It did not offer to take it off her hands at any price. The butter was permitted to remain, evidently in the hope that the injury might be repaired. When it was ready for sale, plaintiff placed it upon the market at some of the customary places for her trade, but her pátrons refused to use it. There was evidence that ■she then disposed of it at the best terms she could. We think the request was properly refused, and the question •of damages under correct instructions submitted to the jury.

3. It is insisted that the receipt and the printed conditions on the back of it constituted the contract between the parties. It appears that the case was submitted to the jury upon that theory. We will dispose of the question as though the receipt constituted the .contract, because both parties seemed to try the case upon that theory. We do not, however, thereby establish the rule that a parol contract for storage can be changed by a receipt issued after the property was deposited, when the storage receipt contains terms different from that agreed upon by parol, without the assent of both parties. This receipt does not, in terms or by implication, exempt the defendant from acts of negligence. The language, “This company will *532 furnish any desired temperature, but will not guarantee results,” refers to the temperature alone. If a temperature was agreed upon and maintained, plaintiff could not recover, although the property was ruined in consequence thereof. There is nothing in the receipt or in the condition which attempts to relieve the defendant from its obligation to use due care and diligence in keeping the proper temperature, and m not éxposing the goods to fruits and vegetables. The contract does exempt the defendant from liability on account of fire, water, ratage, leakage, breakage, frost, or damage to perishable property. It was, however, under the same obligation to preserve a proper temperature, and to keep it away from injurious odors, as though no such language was in the contract. Hunter v. Storage Co., 75 Minn. 408 ( 78 N. W. 11 ); Minnesota Butter & Cheese Co. v. Warehouse Co., 75 Minn. 445 ( 77 N. W. 977 , 74 Am. St. Rep. 515 ).

Judgment affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., took no part in the decision.