
    Isaac P. Sutherland and Charles F. Rushmore, Appellants, v. Albany Cold Storage and Warehouse Company, Respondent.
    
      Cold storage warehouseman—when not obliged to maintain a uniform temperature for the storage of eggs.
    
    Where eggs are, without an express contract, temporarily stored in a cold storage warehouse, to be taken out at any time when the market may warrant, and the owner has access to the warehouse at all times, and from time to time inspects and handles the eggs, and is aware of the' daily temperature of the storage room and of the facilities of the plant and its capacities as to temperature, the warehouseman is not liable for damages to the eggs caused by his failure to maintain a uniform or certain degree of temperature in the storage room, where; in order to do so, the warehouseman would be required to refill his ice house with ice during the summer months.
    
      Appeal by the plaintiffs, Isaac P. Sutherland and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 14th day of July, 1899, upon the report of a referee dismissing the complaint upon the merits.
    
      Stephen J. Daring and James W. Eaton, for the appellants.
    
      Eugene D. Flanigan, for the respondent.
   Kellogg, J.:

In April, 1894, the plaintiffs placed in the cold storage warehouse of defendant in the city of Albany 778 crates or cases of eggs, and from time to time between that date and October 12, 1894, took them away. The referee has found that by reason of the rise in temperature in the storage compartment so many of such eggs as remained there between the fore part of September and October eleventh were damaged and that such damage “ amounted to many hundred dollars.” To this finding there is no exception, and I think there is some evidence to support it. The referee further finds that the rise in temperature was solely attributable to natural causes ■— the melting of the ice. There is no proof, that the ice melted because of any negligence of defendant, or defect in the warehouse or ice house. The referee also finds that no express contract was made between the parties. It appears that no receipt for the eggs was sought by the plaintiffs and none was given. It also appears that plaintiffs were dealers in this commodity, and that this storage was to be temporary, the eggs to be taken out at any time when the market should warrant. It also appears that plaintiffs had access at all times to the warehouse where the eggs were deposited, and from time to time inspected them and handled them and were possessed of information or the means of information as to the daily temperature in the storage rooms.

The proof also shows that plaintiffs had full knowledge of the facilities of this storage plant and its capabilities as to temperature. One of the plaintiffs (Sutherland) as a witness said that immediately before he concluded to store his eggs in the warehouse he “ went over to examine the building, to see in regard to how it was fixed and what character of building it was, and to see whether we could safely put eggs in there. I made a personal examination. * * * I am certain I looked at the thermometer. * * * I went over to the trap doors for the ice, where the ice house was. * *. v I knew the ice house was right next to this storage house. * * * I couldn’t say how long I was in the building at that time; probably the best part of an hour. During all this time I was making an examination of the building.” He says he made inquiry as to the amount of ice they had. The president of the defendant testifies that he told him there was some 1,200 tons in the ice house and they obtained their ice from the river. This plaintiff further'says : “ My object in going there was to get an idea of them, the condition they could hold eggs in, and the temperature they could hold through the season.” I think from the proof it is plain that plaintiffs acted on their own judgment as to the capabilities of this warehouse in the matter of temperature. I find nothing in the proof upon which to predicate a warranty on the part of defendant, nor any representation which can bear that construction. Little, if anything, was said between the parties; nothing as to the quantity of eggs ';o be stored nor as to the time or price of storage. When the plaintiffs’ eggs arrived they telephoned to defendant’s office to send a man to open the warehouse. They put in their eggs in such manner and on such floors as they wished. When they wished to inspect them or remove a portion, in like manner they had a -man sent to admit them and they inspected or removed such eggs as they required. The plaintiffs claim to have known the exact temperature necessary to preserve eggs and that it was perilous to change the temperature by a' single degree for any space of time however short. They also knew that the source of the cold temperature was the ice. in the ice house alongside of the storage rooms and knew its capacity and were told the quantity of ice stored, and were also told that the source of the ice supply was the river, harvested in the winter season. I do not think it unreasonable to suppose that they knew that the ice would melt and that as it melted the temperature in the storage rooms would be affected. Nor do I think they were ignorant of the fact that to refill the ice house in the summer .season, even if it could have been done, would have been very expensive and would have resulted in subjecting the storage rooms to the same temperature as the outside atmosphere for a considerable time. The proof does not disclose that they even suggested this being done, when in the latter part of August they noticed that the temperature in the storage rooms was considerably above the point necessary for the preservation of eggs. Considering all that the proof discloses, I do not think it occurred to the plaintiffs that they were contracting for any uniform or certain minimum degree of temperature or obligating the defendant to maintain any certain degree of temperature in his storehouse by any refilling of his ice house, and it is conceded that this is the only way in which it could have been done.

The counsel for the plaintiffs claim that defendant under its implied contract failed in its duty to plaintiff to exercise ordinary care, in that the defendant did not in the summer months refill the ice house. This I think was a question of fact, and from the proofs and lack of proof I think was properly determined by the learned referee against the contention of the plaintiffs. Proper care is always a question of fact and its determination is to be controlled by the.surrounding circumstances.

I see nothing in the exceptions to the rulings on the admission or exclusion of evidence to. call for a new trial. For the most part these rulings related to the subject and matter which the referee has found in plaintiffs’ favor and the plaintiffs are entitled to no relief even if they were erroneous.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  