Diamond Roller Mills v. Moody

125 P. 284, 63 Or. 90, 1912 Ore. LEXIS 196

• Court: Oregon Supreme Court
• Decided: July 23, 1912
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the court.

1. The bill of exceptions shows that the plaintiff owns flour mills, located at The Dalles, and, in order to keep them in operation, it purchased from various persons quantities of wheat which they had stored in the defendant’s warehouses at Boyd and at Rice’s Station on the line of the Great Southern Railway. To each of such depositors the defendant issued a warehouse receipt, of which the following is a copy, in blank, to wit:

“No.-. Original.-Station, Oregon-191 — .

“Received for storage from --- sacks of wheat, oats, barley, gross weight-lbs., which amount, kind and grade of grain will be delivered to his order on return of this receipt any (and) payment of storage and hauling charges, and repayment of advance with interest. Loss or damage from fire or unavoidable casualties at owner’s risk. Grade-. Condition-. -.”

Without the return of any of these receipts and against plaintiff’s consent the defendant loaded qnd shipped 13 cars of wheat which arrived at The Dalles September 7, 1908, when plaintiff’s mills were being repaired, and in consequence of the work of restoration the grain could not then be stored in its elevators, but was allowed to remain on the cars until a demurrage of $111 was due the railway company and had to be paid before the wheat would be delivered. Thereafter the defendant loaded and shipped to plaintiff in the same manner 12 other car loads of wheat, but, the mills having been repaired in the meantime, no delay was experienced in unloading the grain. James Snipes, the plaintiff’s general manager, was interrogated by its counsel respecting the charge for extra labor, as set forth in the complaint. An objection to the inquiry on the ground that it was not within the pleadings and was incompetent, irrelevant, and immaterial having been overruled and an exception allowed, the witness stated in substance that in order to repair the mills and put them in operation as soon as possible, so as to unload the wheat without further delay, all the regular employes were put at work in making the necessary restoration, and he was compelled to engage three extra men at $2.25 per day to whom was paid $54 for unloading and storing the wheat in plaintiff’s elevators and mills.

Assuming without deciding that the defendant had no authority to terminate the bailment at pleasure as is alleged'in the answer, and for that reason if he shipped and delivered, to the person lawfully entitled thereto, wheat without his order evidenced by a return of the warehouse receipt, a liability would arise for all damages that would necessarily result from a breach of the agreement to keep the grain until called for, we do not see how the defendant would be responsible for any expense incurred in unloading the cars. The warehouse receipt does not contain any provision to that effect, nor does the complaint state any fact from which such a charge could legitimately result. Keeping all the regular employes at work in making the necessary repairs to the mill, in order to put it in proper condition for operation as soon as possible, and employing extra men to unload the cars, may have diminished the demurrage which could have been collected. Such decrease of outlay is not a sufficient justification for imposing upon the defendant the expense incurred in discharging the wheat, in the absence of a contract requiring a performance of that service by him. It was incumbent upon plaintiff to minimize as much as possible the damages which it might sustain by reason of the alleged wrongful shipment of the grain. Wheat is a commodity which at the time of year specified herein could have been procured in any amount in the open market in Oregon, and, if the mills were not then in proper condition to receive the grain when it arrived, it would seem that plaintiff could have sold the wheat for the then current price, thereby possibly avoiding all demurrage, and could thereafter have purchased other wheat of the same quality and of equal quantity at a time when the grain could have been received and stored in its elevators, and thereupon charged and recovered from the defendant the damages thus sustained. But, however this may be, it is impossible to see how the defendant was liable for the employment of extra laborers engaged to unload the wheat when that duty devolved upon the plaintiff. The same may be said also with respect to the outlay for electric power used to unload and store the grain.

Believing that an error was committed in admitting the testimony so objected to, the judgment must be reversed, and, as the bill of exceptions does not purport to contain all the evidence given in the lower court, the cause is remanded for a new trial. Reversed.