H. J. Keith Co. v. Booth Fisheries Co.

Superior Court of Delaware

H. J. Keith Co. v. Booth Fisheries Co.

86 A. 166, 27 Del. 5, 4 Boyce 5, 1912 Del. LEXIS 8

DecidedDecember 10, 1912

StatusPublished

This text of 86 A. 166 (H. J. Keith Co. v. Booth Fisheries Co.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. J. Keith Co. v. Booth Fisheries Co., 86 A. 166, 27 Del. 5, 4 Boyce 5, 1912 Del. LEXIS 8 (Del. Ct. App. 1912).

Pincite

Opinion

Pennewill, C. J.,

delivering the opinion of the court:

The warehouse mentioned in the first and second counts is described therein as a “cold storage warehouse,” but it does not necessarily follow that because the eggs were to be kept in a cold storage house they were to be kept in a frozen condition. Indeed, it does not clearly appear from any averments contained in said counts that the eggs were delivered to, and accepted by, the defendant, to be kept in a frozen condition. It is well known that cold storage houses are not required or expected to keep all property in their keeping at a frozen temperature. For example, [9]*9apples and other fruits are not kept in such condition, and there is nothing in said counts to show that it was the duty of the defendant to keep eggs in such condition. In this particular, therefore, we think the first and second counts of the plaintiff’s declaration are insufficient, but in other respects they are good and sufficient.

In the third count the plaintiff not only describes the warehouse as a cold storage warehouse, but avers that the defendant well knew that the goods which were delivered and received by it to be stored therein were required to be kept frozen. This we think is a sufficient averment of the defendant’s duty.

We sustain the demurrer as to the first and second counts, and overrule the demurrer as to the third count.

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Pennewill, C. J.,

delivering the opinion of the court:

The warehouse mentioned in the first and second counts is described therein as a “cold storage warehouse,” but it does not necessarily follow that because the eggs were to be kept in a cold storage house they were to be kept in a frozen condition. Indeed, it does not clearly appear from any averments contained in said counts that the eggs were delivered to, and accepted by, the defendant, to be kept in a frozen condition. It is well known that cold storage houses are not required or expected to keep all property in their keeping at a frozen temperature. For example, [9]*9apples and other fruits are not kept in such condition, and there is nothing in said counts to show that it was the duty of the defendant to keep eggs in such condition. In this particular, therefore, we think the first and second counts of the plaintiff’s declaration are insufficient, but in other respects they are good and sufficient.

In the third count the plaintiff not only describes the warehouse as a cold storage warehouse, but avers that the defendant well knew that the goods which were delivered and received by it to be stored therein were required to be kept frozen. This we think is a sufficient averment of the defendant’s duty.

We sustain the demurrer as to the first and second counts, and overrule the demurrer as to the third count.

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Bluebook (online)

86 A. 166, 27 Del. 5, 4 Boyce 5, 1912 Del. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-j-keith-co-v-booth-fisheries-co-delsuperct-1912.