The opinion of the Court was delivered by
Provosty, J.
Having on hand large quantities of cow-peas, and June coming on when cow-peas axe in danger of being damaged by weevils in the climate of New Orleans, the plaintiffs separated the mixed peas from the straight clay peas and put the latter, the more valuable, in the cold storage warehouse of -the defendant company for preservation until the opening of the next season, say March following. The quantity thus stored was 13,028 sacks, and the transfer to the cold storage was effected between the 9th and the 18th of June. After-wards, a few days more than a month afterwards, between the 19th and 30th -of July, plaintiffs transferred to the same cold storage what they still had on hand of the mixed peas, namely 2,099 sacks. In the course of the following season, plaintiffs withdrew the peas from the cold storage as the requirements- of their trade demanded, until the defendants refused to make further deliveries, claiming the right to hold the peas for unpaid storage, and thereupon the plaintiffs immediately brought the present suit. This was in July, 1898, a year after the peas had been stored.
Plaintiffs allege that of the peas withdrawn 642 sacks were damaged, and Bad to be sold for $433.19 instead of $1,249.96, the regular price; and that defendant owes them the difference, viz.: $816.77, the damage having come about through its fault. And they allege, further, that the defendant refuses to deliver to them the remainder of the 13,028 sacks of peas, namely 1,250 sacks; that the same are damaged to such an [174]*174extent as to have lost all value; that the damage came about through the fault of defendant, and that defendant owes the value, viz.: $2,458.33. And plaintiffs allege, further, that of the 2,099 sacks of peas defendant still holds and refuses to deliver 1,360 sacks, and owes the value, $616.05. Plaintiffs do not say that these 1,360 sacks are in any worse condition than they were when put in cold storage.
The defendant denies that it has been in fault; avers its rights to detain the cow-peas until payment of the amount due for storage, and claims in reconvention the amount thus due, namely $1,896.65.
At the request of the plaintiffs the peas detained by defendant were sold by the sheriff soon after the institution of this suit. The 1,250 sacks sold for $431.72, and the 1,360 sacks for $198.98.
The business of the defendant is to preserve perishable articles by means of cold air. Articles received by defendant for preservation are supposed to be liable to undergo or to be actually undergoing a process of deterioration through the development in them of -insect life, and the undertaking of defendant, for which it is paid more than quadruple the price of ordinary warehousing, is to prevent or arrest this process. In order to recover against defendant, therefore, it is not necessary for plaintiffs to show that their goods were not affected by insect life when put in cold storage, or that the process of deterioration had not begun in said goods, but that said goods, by the usual and ordinary tests of commerce, were classed as sound.
The two plaintiffs and Mr. McMillan testify positively and emphatically that they tested every sack of the peas, this test being made as the peas were being hauled to the cold storage, and found the peas to be perfectly sound. The interest of these witnesses detracts from the weight of their testimony. (Mr. McMillan has against the defendant ,u claim similar to that of the plaintiffs.) But the witnesses are three in number; they are by our law competent witnesses; they are business men of this city; and, after all allowances have been made, their testimony is binding on the court. The supposition of these witnesses having been mistaken is excluded by the fact that they were large dealers in peas, entirely competent to test the peas, and by the further fact that the testing of the soundness of a pea is a very simple matter; a sound pea being cold, and a weevily pea hot.
The superintendent of the cold storage testified to the machinery of the cold storage having run perfectly while the peas were in cold storage, and a large number of dealers in different kinds of perishable [175]*175articles who had goods in the cold storage during the time that the peas of the plaintiffs were there testified to their goods haying been properly preserved; and we have noidoubt at all that the machinery of the cold storage was properly run.
The peas, then, having been sound when put in, and the machinery having run regularly, it must be that the damage' to the peas occurred before the cold had penetrated sufficiently to arrest deterioration. If so, defendant is responsible; for it was its business to know what quantity of peas it could safely admit at one time into its cold storage.
This responsibility of the defendant the superintendent of the cold storage, Mr. Scratchly, was alive to, for we find him cautious about letting in the peas too fast. “Saw Mr. Scratchly,” says Mr. McMillan, “and asked him whether he couldn’t take them a little more rapidly, as we wanted to get them in, and he said they were haying a little difficulty with the temperature keeping it down to where it should be, and he would only take in a certain amount a day, as he didn’t want to endanger the temperature of the warehouse.”
We can explain the deterioration of the peas in no other way than by assuming that the superintendent was not cautious enough, and did “endanger” the temperature of his cold storage by letting in the peas too fast or in too great quantities. The largest quantity the defendant had ever stored previously was from 6,000 to 7,000 sacks, whereas "this time, in the brief space between the 9th and 18th of June, it undertook to accommodate 13,028 sacks for plaintiffs and" 26,099 sacks for McMillan & Co.
There is evidence that the peas were stored too much in a pile, and we must say this evidence is. but very faintly contradicted by Mr. Scratchly.
Of the 13,028 sacks of peas 5,422 were transferred into the cold storage directly from the cars that had brought them from Tennessee, atad 7,606 were transferred from the warehouse of Holmes & Co. in this city. The peas transferred from the cars came out of the cold storage all sound. Defendant argues that since all the peas from the cars came out sound, and the peas from the warehouse of Holmes & Co. came out damaged, it must be that not the cold storage but the warehouse is responsible for the damage. The argument, though possessing considerable force, is by no means conclusive. In the first place, not all the peas from the warehouse of Holmes &" Co. came out of the cold storage damaged, but only some of them; 5,910 sacks came out sound; a [176]*176larger amount than the total quantity that came from the cars. The peas from the warehouse of Holmes & Co., which had been subjected for sometime to the temperature t of New Orleans, may'have carried with them into the cold storage a greater quantity of heat than did the peas direct from Tennessee. Moreover they may have been stored less advantageously.
The loss resulting to the plaintiff from the- deterioration of the 642 sacks of peas is not proved. As to these 642 sacks we must therefore non-suit plaintiff.
The’ defendant had a right to hold possession of the peas until the storage was paid. C. O. 2966. The storage could not be compensated by the plaintiff’s unliquidated claim for damages. O. O. 2209.
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The opinion of the Court was delivered by
Provosty, J.
Having on hand large quantities of cow-peas, and June coming on when cow-peas axe in danger of being damaged by weevils in the climate of New Orleans, the plaintiffs separated the mixed peas from the straight clay peas and put the latter, the more valuable, in the cold storage warehouse of -the defendant company for preservation until the opening of the next season, say March following. The quantity thus stored was 13,028 sacks, and the transfer to the cold storage was effected between the 9th and the 18th of June. After-wards, a few days more than a month afterwards, between the 19th and 30th -of July, plaintiffs transferred to the same cold storage what they still had on hand of the mixed peas, namely 2,099 sacks. In the course of the following season, plaintiffs withdrew the peas from the cold storage as the requirements- of their trade demanded, until the defendants refused to make further deliveries, claiming the right to hold the peas for unpaid storage, and thereupon the plaintiffs immediately brought the present suit. This was in July, 1898, a year after the peas had been stored.
Plaintiffs allege that of the peas withdrawn 642 sacks were damaged, and Bad to be sold for $433.19 instead of $1,249.96, the regular price; and that defendant owes them the difference, viz.: $816.77, the damage having come about through its fault. And they allege, further, that the defendant refuses to deliver to them the remainder of the 13,028 sacks of peas, namely 1,250 sacks; that the same are damaged to such an [174]*174extent as to have lost all value; that the damage came about through the fault of defendant, and that defendant owes the value, viz.: $2,458.33. And plaintiffs allege, further, that of the 2,099 sacks of peas defendant still holds and refuses to deliver 1,360 sacks, and owes the value, $616.05. Plaintiffs do not say that these 1,360 sacks are in any worse condition than they were when put in cold storage.
The defendant denies that it has been in fault; avers its rights to detain the cow-peas until payment of the amount due for storage, and claims in reconvention the amount thus due, namely $1,896.65.
At the request of the plaintiffs the peas detained by defendant were sold by the sheriff soon after the institution of this suit. The 1,250 sacks sold for $431.72, and the 1,360 sacks for $198.98.
The business of the defendant is to preserve perishable articles by means of cold air. Articles received by defendant for preservation are supposed to be liable to undergo or to be actually undergoing a process of deterioration through the development in them of -insect life, and the undertaking of defendant, for which it is paid more than quadruple the price of ordinary warehousing, is to prevent or arrest this process. In order to recover against defendant, therefore, it is not necessary for plaintiffs to show that their goods were not affected by insect life when put in cold storage, or that the process of deterioration had not begun in said goods, but that said goods, by the usual and ordinary tests of commerce, were classed as sound.
The two plaintiffs and Mr. McMillan testify positively and emphatically that they tested every sack of the peas, this test being made as the peas were being hauled to the cold storage, and found the peas to be perfectly sound. The interest of these witnesses detracts from the weight of their testimony. (Mr. McMillan has against the defendant ,u claim similar to that of the plaintiffs.) But the witnesses are three in number; they are by our law competent witnesses; they are business men of this city; and, after all allowances have been made, their testimony is binding on the court. The supposition of these witnesses having been mistaken is excluded by the fact that they were large dealers in peas, entirely competent to test the peas, and by the further fact that the testing of the soundness of a pea is a very simple matter; a sound pea being cold, and a weevily pea hot.
The superintendent of the cold storage testified to the machinery of the cold storage having run perfectly while the peas were in cold storage, and a large number of dealers in different kinds of perishable [175]*175articles who had goods in the cold storage during the time that the peas of the plaintiffs were there testified to their goods haying been properly preserved; and we have noidoubt at all that the machinery of the cold storage was properly run.
The peas, then, having been sound when put in, and the machinery having run regularly, it must be that the damage' to the peas occurred before the cold had penetrated sufficiently to arrest deterioration. If so, defendant is responsible; for it was its business to know what quantity of peas it could safely admit at one time into its cold storage.
This responsibility of the defendant the superintendent of the cold storage, Mr. Scratchly, was alive to, for we find him cautious about letting in the peas too fast. “Saw Mr. Scratchly,” says Mr. McMillan, “and asked him whether he couldn’t take them a little more rapidly, as we wanted to get them in, and he said they were haying a little difficulty with the temperature keeping it down to where it should be, and he would only take in a certain amount a day, as he didn’t want to endanger the temperature of the warehouse.”
We can explain the deterioration of the peas in no other way than by assuming that the superintendent was not cautious enough, and did “endanger” the temperature of his cold storage by letting in the peas too fast or in too great quantities. The largest quantity the defendant had ever stored previously was from 6,000 to 7,000 sacks, whereas "this time, in the brief space between the 9th and 18th of June, it undertook to accommodate 13,028 sacks for plaintiffs and" 26,099 sacks for McMillan & Co.
There is evidence that the peas were stored too much in a pile, and we must say this evidence is. but very faintly contradicted by Mr. Scratchly.
Of the 13,028 sacks of peas 5,422 were transferred into the cold storage directly from the cars that had brought them from Tennessee, atad 7,606 were transferred from the warehouse of Holmes & Co. in this city. The peas transferred from the cars came out of the cold storage all sound. Defendant argues that since all the peas from the cars came out sound, and the peas from the warehouse of Holmes & Co. came out damaged, it must be that not the cold storage but the warehouse is responsible for the damage. The argument, though possessing considerable force, is by no means conclusive. In the first place, not all the peas from the warehouse of Holmes &" Co. came out of the cold storage damaged, but only some of them; 5,910 sacks came out sound; a [176]*176larger amount than the total quantity that came from the cars. The peas from the warehouse of Holmes & Co., which had been subjected for sometime to the temperature t of New Orleans, may'have carried with them into the cold storage a greater quantity of heat than did the peas direct from Tennessee. Moreover they may have been stored less advantageously.
The loss resulting to the plaintiff from the- deterioration of the 642 sacks of peas is not proved. As to these 642 sacks we must therefore non-suit plaintiff.
The’ defendant had a right to hold possession of the peas until the storage was paid. C. O. 2966. The storage could not be compensated by the plaintiff’s unliquidated claim for damages. O. O. 2209. Plain* tiff can therefore recover nothing for the 1,360 sacks that were in a damaged condition when put in the cold storage. It is not alleged that these 1,360 sacks deteriorated while in the warehouse of plaintiff; tFe only allegation is that defendant refused to deliver them up; and, since we have held that defendant properly so refused, we can allow the plaintiff nothing on this demand.
The price for which the peas were sold belongs to plaintiff, subject, however, to the pledge of the defendant to secure the amount due for storage.
Of the 1,250 sacks, 1,054 were damaged. These were sold at 19% cents per bushel. Had they been sound they would have brought 36% cents per bushel. Plaintiff is entitled to recover from defendant the difference. There were 1,578 bushels, which, at 17 cents per bushel, the difference between 19% and 36%, amounts to $268.26.
The sale made by the sheriff, having been made at the instance of the plaintiffs, was the act of the plaintiffs, for which the plaintiffs alone are responsible. .This sale must be held to be the exact equivalent of a private sale made by the plaintiff. As such it measures the value of the peas at the time they were taken out of the cold storage and sold.
On the reconventional demand defendant is entitled to judgment as prayed, with recognition of the depositary’s pledge on the price of the peas sold by the sheriff.
The defendant was sued on its general liability as a cold storer, and it answered by a general denial. It did not plead any special contract. But we find that in the heading of the receipts isuued to the plaintiffs for the peas there is printed the following limited liability clause: “It is expressly understood and admitted that this company do not inspect [177]*177or examine condition of goods in receiving same, and therefore are not responsible for contents or damage; it is also further understood that this company will not be responsible for variation in temperature that may arise by accident to machinery or other unforeseen causes. This company will make special contracts at increased rates above tariff when parties storing require guarantee of temperature. In this case goods will be inspected and examined at the expense and risk of storer. This company reserves in such special contracts that 48 hours notice to the storer that machinery or building is disabled will terminate such contract and their responsibility under same. Not accountable for leakage, depreciation or damage by rats.”
This clause is not specially insisted on in the brief, nor was it pressed in the argument, but giving the defendant the full benefit of it, we do not think that it relieves defendant of its obligation as cold storer to preserve the goods in the condition in which they were when received.
It is therefore ordered, adjudged and decreed that the judgment of •the lower court be set aside and that the plaintiffs have judgment against the defendant for the sum of two hundred and sixty-eight dollars and twenty-six cents ($268.26), with five per cent, per annum interest from this day.
It is further ordered, adjudged and decreed that the price of th© sale made by the sheriff in this suit belongs to the plaintiffs, but that the same is subject to the privilege in favor of the defendants hereinafter decreed.
It is further ordered, adjudged and decreed that the demand of the plaintiffs for eight hundred and sixteen dollars and ninety-seven cents ($816.97), difference in the price of the 642 sacks of peas sold as damaged, be rejected as in case of non-suit.
It is further ordered, adjudged and decreed that the defendant have judgment against the plaintiffs for the sum of one thousand eight hundred and ninety-six dollars and sixty-five cents ($1,896.65), with five per cent, per annum interest thereon from the 18th of October, 1898, and that to secure this judgment the defendant have a depositary’s privilege on the price of the sale made by the sheriff in this suit.
It is further ordered, adjudged and decre.ed that the defendant pay the costs of the main suit in the lower court and the costs of appeal; and that the plaintiff pay the costs of the reconventional demand..