
    Frederick Akers, Respondent, v. Charles H. Overbeck et al., Appellants.
    (Supreme Court, Appellate Term,
    October, 1896.)
    1. Hegligence.
    Where .'grocerymen, who have for many, years employed others to roast coffee for them, send to these persons a bag of coffee which contains a stone weighing • twenty-six pounds, and this, passing through the coffee roasting machine, breaks and damages it, the persons owning the machine cannot recover of the grocerymen, in the absence .of any proof of a similar occurrence, or that the grocerymen knew of the existence of the stone in the bag; the bag having been purchsed fromv a coffee broker and having remained untouched as sent to the grocerymen by him.
    8. Bailments — Degree of care.
    Bailors who hire the performance of work are bound merely to ordinary care, and, in the absence of knowledge or notice of the defect, they are not bound to inspect the contents of a bag of coffee, a thing which is not, in its nature, dangerous in any aspect.
    3. Evidence.
    The fact that the bailors demanded of the broker that they be allowed the difference in the price of the bag which arose from the weight of the 'stone, is not sufficient in any manner to charge the bailors with negligence for the presence, in the bag, of the stone; the transaction constituting merely a natural adjustment of the rights arising under the sale.
    
      Appeal from judgment of the Fifth Judicial District Court in favor of the plaintiff.
    Henry Wendt, for appellants.
    James P. Niemann, for respondent.
   Bischoff, J.

This action was brought to recover damages for breakage of and injury to the plaintiff’s coffee-roasting apparatus through the negligence of the" defendants, in furnishing the plaintiff with a bag of coffee, under a contract for its roasting, when such bag contained a large stone, weighing between twenty-six and twenty-seven pounds, which, being introduced into the machine, together with the coffee, occasioned the damage in suit.

The defendants were grocerymen and had employed the plaintiff in roasting green coffee for them during a period of fifteen years, it being their custom to deliver the coffee to him in bags, which, without examination, were cut open by him and emptied into his machine. Small stones, about the size of a coffee bean, were sometimes to be found in these bags, and, for a special compensation, they were sorted out by the plaintiff when expressly required so to do. These stones, however, were not of sufficient size to cause injury to the machine and were usually removed after the roasting process .had been completed; the requirement for sorting, in the case of these stones, was apparently for the benefit only of the groceryman, not for the protection of the miller’s apparatus, and no such requirement had entered into the contract for roasting in the present instance.

The question at issue had to do solely with the defendant’s responsibility for the presence of this stone in the bag, its size being entirely beyond anything such as could be looked for in a bag of coffee, as handled in the usual course of trade.

From the plaintiff’s testimony, it appears that in twenty-one years’ experience in the business he had never seen anything like such a stone in such a situation; nor had his witness, Reid, in the course of forty-five years devoted to the trade.

The stone was in the middle of the bag and so was not discoverable by an inspection which did not go thoroughly into the contents, and it is to be determined whether the defendants’ duty to the plaintiff called upon them to make such an inspection. It is not disputed that the stone was placed in the bag by some one other than the defendants; the bag was never in their possession, but was sent to the plaintiff by one Davidson, a coffee broker, upon the .defendants’ order, and the plaintiffs’ written receipt of the bag from Davidson appeared in evidence.

The irresistible inference is that the presence of this stone was due to the fraudulent attempt on the part of some person other than the defendants to obtain the price of twenty-six pounds of coffee more than were contained in the bag, and the question is, were the defendants negligent in failing to inspect the bag before its delivery to. the plaintiff with a view to the discovery of this foreign substance? The answer must be that they were not. The defendants, as bailors, were called upon, in the performance of their contract, to furnish the subject of the bailment, which was here of the nature locadio operis faciendi, in a condition such, as would enable the plaintiff to properly perform his task (see Story on Bailments, § 425), and, upon analogy to the principles governing contracts, for the performance of services generally, a liability upon the part of the defendants would attach, if, through their negligence, the thing furnished caused an injury which would not reasonably have been expected by the plaintiff, as bailee:

On no principle, however, could the defendants be held to have insured the plaintiff against damage in the performance of his work, by reason of every conceivable defect which might existan the subject of the contract, here a bag of coffee, which was not, in its nature, a dangerous thing in any aspect.

They were Required to exercise ordinary care and no more, and negligence, upon the present state of facts, would result only from their knowledge and concealment of this defect or from their failure to use reasonable diligence to discover it. Devlin v. Smith, 89 N. Y. 470; McKay v. Wild West Co., 17 Misc. Rep. 601, 603.

■But to have discovered this stone, of the presence of which they had no actual knowledge, it would have been incumbent upon the defendants to have particularly emptied the bag, and the evidence shows that in the usual course of t/ade such a search would never have disclosed anything of a like nature. •

Why, then, were the defendants negligent in failing to look for a thing the discovery of which could not have been expected, and which was present, in this instance, only through the willful fault of some one whose act was inimical to the interests of all in. the trade, and alone did bring about the plaintiff’s damage?

Neither the plaintiff, nor Mr. Reid, his witness, would have expected to find any such substance in a bag of coffee, with ^ the experience born of many years devoted to this trade; the plaintiff’s custom had been to place the contents of the bags in the machine without examination, and throughout a period of twenty-one years nothing like the present condition had arisen to call for change of this apparently justifiable course.

It cannot be said that the defendants failed to act as reasonably prudent persons would have acted, merely through not inspecting the contents of the bag with a view to avoiding this extremely unusual cause of injury. If the plaintiff could connect the broker, Dayidson, as the defendants’ agent, with the act of placing this stone in the bag, or could charge the defendants, through him, with negligence in permitting it to come into the plaintiff’s hands in the manner noted, a different question would be presented, but, while evidence, in this regard, might be forthcoming upon a second trial, the record before us fails to disclose a cause of action against the defendants.

The fact that they were allowed by Davidson the difference in the price of the bag which the weight of the stone represented is, of course, insufficient to charge the defendants with negligence for its presence. This was merely a natural adjustment of the right arising under the sale by Davidson and the fact does not support any reasonable inference that the defendants were responsible for Davidson’s recognition of the claim that the stone was not a proper part of the contents of the bag, at the agreed price.

It is urged by the plaintiff that there was evidence showing that the defendants knew of the presence of the stone in the bag before its delivery to him, the contention being based upon the following question and answer, which appear in the course of the cross-examination of the defendant, Charles Overbeclc, touching the allowance made to the defendants by Davidson for the weight of the stone: “ Q. My question includes that you claimed it, and received it, that is, compensation for the difference before it was delivered to Mr. Akers? A. Tes, sir.”

The question was not definite and, in view of the fact that the proof throughout showed thé defendants to have had no knowledge of the presence of the stone until after the injury in suit, and that the claim by the defendants against Davidson was made upon the plaintiff’s affidavit of the circumstances, we think that the inquiry was intended and understood to go only to the difference between the weight of the bag before it was delivered and gfter the stone was removed According to the plaintiff’s construction of the question the defendants’ reply admitted the cause of action, and it is not reasonable to believe that if the parties had so understood it the trial would have proceeded, as it did, with no further allusion to the matter' by any one concerned in the litigation.

This appeal does not present the question whether qr not the plaintiff would have a right of action against the individual who originally, placed the stone in the bag in the perpetration of a deliberate Wrong, and an expression of our views upon this subject would be merely obiter.

Be that question as it may, the evidence given at the trial was not sufficient as a basis for recovery against the defendants, and a new trial should be had.

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

Daly, P. J., and McAdam, J., concur.

Judgment reversed and-new trial ordered, with costs to appellants to abide the event.  