
    [No. 20308.
    Department One.
    July 7, 1927.]
    R. O. Small, Respondent, v. J. Ellis Slater et al., Appellants.
    
    
       Warehousemen (8) — Evidence—Burden of Proof — Sufficiency. Upon an issue as to a warehouseman’s receipt. of apples for storage, his warehouse receipts make out a prima facie casé,' casting the burden of proof upon him, which is not sustained where the oral proof is directly conflicting.
    
       Same (8) — Evidence—Sufficiency—Damages. A recovery against a warehouseman for the conversion of apples stored with him is too large, where no deduction was made for admitted duplicate receipts, or for apples of lower grade of less value than those allowed and paid for.
    Appeal from a judgment of the superior court for Chelan county, Parr, J., entered December 1, 1925, upon findings in favor of the plaintiff, in an action for conversion.
    Eeversed and remanded for further evidence.
    
      Fred M. Crollard, for appellants.
   Fullerton, J.

The respondent, Small, during the year 1924, operated an apple orchard, located near En-tiat, in this state. He contracted to sell his apples through the Grellatly Fruit Company, a concern doing business at Wenatchee. It is gathered from the record that, as a part of his contract, he was required to assort the apples and put them into standard boxes according to their sizes and grades. The appellant Slater conducted a warehouse at Entiat, and the respondent contracted with him to make the shipments.

The respondent, after picking the apples, hauled them to a packing house, where they were assorted, graded, and packed into boxes, and from thence were hauled by truck to the appellants’ warehouse. As each truck load reached the warehouse, a receipt was issued to the respondent for the number of boxes of apples contained in the load and delivered to the driver of the truck; the receipts usually stating on their face the number of boxes of each variety and grade received.

The appellant purported to ship all of the apples received from the respondent to the order of the Wenatchee house, but the number of boxes shipped was less by some six hundred and fifty than the number called for in the receipts issued, and the respondent seeks in this action to recover for the number of boxes for which the appellant did not so account. The respondent alleged in his complaint that the apples unaccounted for were of the extra fancy grade and were of the market value of $2.50 per box. His complaint was in form an action of conversion. The answer was, in substance, a general denial. The proofs, however, showed that the actual controversy was over certain receipts, four in number, which the appellant contended were duplicates of others issued. With these deducted, there was an accounting for all of the apples received.

The appellant conducted a general business of receiving, storing, and shipping apples, and had a large number of customers in addition to the respondent. For apples received from his general customers, he used a form of receipt on which could be indicated the variety of the apples received, their different grades, and the sizes of the apples of each grade, and for all apples received from growers, other than the respondent, this form of receipt was used. The Gellatly Fruit Company, however, desired the apples of the respondent to be receipted for on their own form, and for that purpose sent to the appellant a block of blank receipts. These differed somewhat from the appellant’s receipts ; the principal difference being that they did not permit of as many grades as could be indicated on tbe appellant’s receipts, tbe grades being limited to Extra Fancy, Fancy, and C Grade. Tbe evidence on tbe part of tbe appellant tended to show that bis warehousemen would, by mistake or some other cause, issue receipts for tbe respondent’s apples on bis general form, and that, when this was discovered, another receipt for tbe same apples would be issued on tbe form required by tbe Gellatly Fruit Company without taking up tbe original receipts, and that it was due to this fact that a shortage appeared, when in fact there was no actual shortage. Tbe evidence on tbe part of tbe respondent tended to show that there were no duplicates, save in one or two instances where extra receipts were given for a grade of apples not complying with tbe requirements of tbe Gellatly Fruit Company. Tbe trial court, on a trial without tbe intervention of a jury, determined tbe issue in favor of tbe respondent, allowing a recovery for all of the apples shown on tbe receipts; those asserted to be duplicates as well as those admittedly genuine.

On tbe general question, that is to say, on tbe question whether tbe receipts not admitted to be duplicated were in fact duplicated, we are inclined to tbe view of tbe trial court. Tbe receipts are, of course, outstanding, and they furnish prima facie evidence that tbe number of boxes called for by them was actually delivered. Nor do we find that the extrinsic evidence bears more heavily in favor of one party than it does tbe other. Tbe oral evidence of tbe parties is in direct conflict, and tbe attempt at checking from independent sources throws no certain light on tbe controversy. Tbe burden of proof was on tbe appellant, and we agree with tbe trial court in its bolding that be failed to sustain tbe burden.

; [2] The respondent made no appearance in this court, and we have not had the benefit of argument upon the question, but we are constrained to conclude that the recovery allowed by the court is too large. We can find nothing in the record which indicates that the trial court allowed a deduction for the apples shown on the receipts which the respondent admitted to be duplicated. The number of such boxes we are unable to gather from the record. The court found, also, that all of the apples unaccounted for were of the extra fancy grade, and allowed a recovery for the value of apples of that grade, whereas the receipts show on their face that a number of the boxes was of a lower grade than extra fancy,, and we have discovered nothing in the evidence that indicates that they were erroneous in this respect. The respondent must, therefore, accept the receipts at their face value.

For the reason that the evidence does not show the value of apples of a grade lower than extra fancy, and the further reason that it does not show with certainty the number of boxes for which duplicate receipts were issued, we cannot direct the proper judgment to be entered, but must remand the cause for a further hearing. Our order will be, therefore, that the judgment entered in the trial court be reversed, and the cause remanded with instructions to reopen the cause and give the parties an opportunity to offer evidence on the matters indicated. If such evidence is offered, the court will determine the cause as the right appears. If they fail to do so, the court will enter a judgment in favor of the respondent for the boxes shown on the disputed receipts issued to the G-ellatly Fruit Company to be of extra fancy grade, and allow nothing for the remainder.

Reversed and remanded.

Mackintosh, C. J., French, Main, and Mitchell, JJ., concur. 
      
       Reported in 257 Pac. 625.
     