
    Matthew O’Connor, Appellant, v. Edward M. Moody and George H. Moody, Respondents.
    
      8to?;age of fruit—where the contract is made with, the warehousemen by one who guarantees the storage charges the wwehousemen are liable to the owners for neglect in the care of the fruit.
    
    One Ash, who represented a firm engaged in the produce and commission business, entered into a contract with the owners of a storage warehouse for the storage of fruit belonging to certain farmers, which fruit was in the custody of Ash or his firm to sell on commission. A list of the farmers whose fruit he was to handle was delivered by Ash to the owners of the warehouse.
    At the time the contract was made Ash agreed that he would “ guarantee ” the payment of the storage charges upon all of the fruit,
    One of the farmers, mentioned in the list furnished by Ash to the owners of the warehouse, delivered fruit at the warehouse for storage, taking a memorandum certifying that fact, and the owners of the warehouse marked the fruit with the farmer’s name.
    
      Held,, that as it appeared that the owners of the warehouse knew that the farmer was the owner of the fruit, such farmer could, irrespective of any question as to the effect of the agreement with the commission firm, recover the value of the fruit from the owners of the warehouse in the event of its being destroyed through their negligence.
    Appeal by the plaintiff, Matthew O’Cennor, from a judgment of the County Court of Niagara county in favor of the defendants, entered in the: office of the clerk of the county of Niagara on the 31st day of August, 1903, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said court, and also from an order, bearing date the 2d day of June, 1903, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      D. E. Brong, for the appellant.
    
      Alvah K. Potter, for the respondents.
   Spring, J.:

The defendants own and operate a cold storage warehouse in Lockport, H. Y., and the plaintiff, a fruit grower, in October, 1902, delivered to the warehouse a quantity of apples and pears in barrels to be stored for a fixed compensation. The plaintiff claims that the fruit was destroyed through the negligence of the defendants and the action is to recover its value.

The agreement for the storage of the fruit was made with one Ash, who represented Crutchfield & Woolf oik, a Pennsylvania copartnership, engaged in the produce and commission business. Ash agreed with the defendants to pay them for the storage of the fruit in their warehouse thirty-five cents per barrel for the season and a specified rate by the month if the fruit was kept for less than the entire season.

The defendants knew that this fruit belonged to the farmers and was in the custody of Ash or his firm to sell on commission. In fact a list of the farmers whose fruit he was to handle was given by Ash to the defendants, which included the plaintiff and that of his son, whose claim has been assigned to the plaintiff. The defendants contend that they are not liable to the plaintiff, alleging that there was no privity of contract between them, and that they dealt with Crutchfield & Woolf oik and not with the plaintiff.

On the trial the court, after hearing the proofs of the plaintiff showing the arrangement by which the merchandise was delivered to the defendants, intimated that there was no liability. The plaintiff thereupon offered to establish the facts out of which the negligence arose, but the evidence was excluded and the plaintiff non-suited. In reviewing the appeal from the judgment of nonsuit the plaintiff is entitled to the assumption that he might have proved all the facts contained in his offer.

Ash testified that there was some little haggling, over the price to be paid to the defendants for storing the fruit, and finally lie said : “ Well, I will guarantee this part. I will guarantee all storage for my own fruit and every one else as fast as it is taken out of storage; that the proceeds will be properly paid and each man will have to take his own rubbish away. * * * I told him that I would guarantee their storage charges. He asked me when I told him or asked him for storage for my own and others if I intended to guarantee all storage charges for them all. He asked me if I would guarantee all storage charges and I told him I would. *- * * ”

This proof indicates that the firm represented by Ash was not primarily liable for the payment of the storage charges; that their liability was that of a guarantor; that the owner of the property was the real paymaster.

Irrespective of the question of the effect of the agreement with the commission firm, the defendants may be charged. The evidence quoted tends to show that the defendants knew the fruit belonged to the farmers delivering it. In addition to that, the plaintiff delivered his fruit and took a memorandum certifying that fact. The fruit was marked by the defendants, “ Showing the name of the party and the number and the character of the apples.” The fruit, therefore, belonged to the plaintiff and the- defendants knew it. He Certainly could maintain an action for its recovery if converted. (Green v. Clarke, 12 N. Y. 343 ; Baird v. Daly, 57 id. 236.)

The true-owner is the one seeking to recover his property or its value. The defendants were bailees for hire of the plaintiff’s property either through him of his agents. By the fault or misconduct of these bailees it has been destroyed. The intermediary did not have the title, as the defendants knew.

Barring any question of a lien upon the goods, which is not up here, there is no reason why the plaintiff cannot recover for the value of whatever interest he may have had in them.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.  