
    [No. 18529.
    Department One.
    September 11, 1924.]
    Church Manufacturing Company, Respondent, v. American Security Bank et al., Appellants.
      
    
    Damages (62) — Measure of Damages — Injury to Personal Property — Evidence. While the measure of damages for injury to apples is the difference between the fair market value immediately before and immediately after the injury, “immediately” cannot be given a strict meaning where the injury could not be discovered immediately, but means immediately after the extent of the injury is determined.
    Same (62). In an action for injury to apples, damages cannot be awarded in the absence of any evidence as to the fair market value immediately after the injury was discovered; and the fact that, at a later date, a certain price was received for them, is not sufficient evidence of their fair market value.
    Appeal from a judgment of the superior court for Benton county, Truax, J., entered August 29, 1923, in favor of the plaintiff, in an action to recover storage charges, tried to the court.
    Affirmed.
    
      G. L. Holcomb, for appellants.
    
      Moulton & Jeffrey, for respondent.
    
      
      Reported in 228 Pac. 518.
    
   Mackintosh, J.

The appellants, during the season 1921-1922, stored apples in the storage warehouse owned and operated hy the respondent, and the latter brought this action to recover the storage charges. The appellants’ answer does not deny the correctness of the amount of the charges, hut sets up a counterclaim for a loss which they claim to have sustained on. account of some of the apples having frozen while in storage.

The testimony shows that, when the apples were to be removed from storage for loading on cars to he delivered to a purchaser, it was discovered that some of the apples had been frozen, and that the purchaser refused to take any of them. The apples were then repacked, resulting in a shortage of 65 boxes, for which the respondent admitted liability and has given credit for their full value, deducting that amount from the storage charges. The only question-in this case is as to the measure of damages.

The rule by which to measure damages for injury to personal property which has not been entirely destroyed is its fair market value immediately before and immediately after the injury. Alexander v. Barnes Amusement Co., 105 Wash. 346, 177 Pac. 786; Polle’s Seed & Imp. Co. v. Rudene, 117 Wash. 150, 200 Pac. 1104. The fair market value of the appellants’ apples before the injury may be taken to have been established as $996.25, but there is no testimony in the case of their fair market value immediately after the injury. Under the peculiar facts in this case, immediately cannot be given its strict meaning, for the extent of the injury could not have been discovered immediately. It was necessary to take all the apples and repack them in order to determine how many were unfit for use, and until that time it was impossible to establish the extent of the injury, so that the measure of damages here must be the difference between the fair market value immediately before and immediately after the extent of the injury had been determined. But even applying this rule, there is no testimony establishing the value at the latter time. The appellants rely upon the fact that they received for these apples at a somewhat later date the price of $531.62, but the record is entirely devoid of any testimony showing this was the fair market value, even at the time they were disposed of, and of course, as already noted, that time was not immediately after the injury was discovered. The trial court- held that the appellants, having failed to establish the extent of their injury, were not entitled to re-' cover on their cross-complaint, and with this decision we must agree. The trial court, in a memorandum opinion, clearly states the situation in the following language:

“. . . there should appear at least some evidence as to the value of those which were repacked at the time the repacking was completed. The record is silent as to when this repacking was done. The witness Carpenter (the appellants’ bank officer who was handling the transaction) testifies that about six weeks passed from the time of. the sale to Duddy, Robinson & Company (that sale being the one which is taken as having established the fair market value of the apples immediately before the injury), and the resale of the apples through the Wenatchee Valley Fruit Exchange, and he testifies further that in the meantime the general market had declined. While it might be said with fairness that plaintiff should be held for loss on a falling market existing at the time the repacking was completed . . . still, there should have been some evidence as to the value of this fruit at the time the repacking was completed. It is hardly fair to fix that value by testimony concerning what was received for the apples by the Wenatchee Valley Fruit Exchange, the latter being consignees and shipping the fruit to all parts of the country, and there being no evidence in the record when sales were made by them, or where. And especially is this true in view of the testimony of the witness Carpenter, which is all the evidence we have in the record on that subject, to the effect that they receivedn from the Wenatchee Valley Fruit Exchange $541.63, this being the net return after the Wenatchee Valley Fruit Exchange had deducted handling charges. The amount collected by the Wenatchee Valley Fruit Exchange is no just or fair criterion of the reasonable worth and value of these apples, either at the time their frozen condition was discovered, or at the time the repacking had been completed. ’ ’

The judgment is affirmed.

Main, C. J., Parker, Mitchell, and Tolman, JJ., concur.  