
    Greenwich Warehouse Company, App’lt, v. Charles E. Maxfield, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 17, 1894.)
    
    Contract—Breach.
    Under a contract to take and store fruit at a temperature ranging from 35 to 40 degrees, the placing it in a temperature which caused it to freeze, not only precludes a recovery for storage but also creates a liability for damages.
    
      Appeal from the district court of the city of New York for the first judicial district.
    
      SuUiiian & Cromwell’ for app’It; Abner C. Thomas, for resp’t.
   Bookstaver, P. J.

This action was brought by plaintiff to recover $219.05 storage charges for storing defendant’s fruit, consisting of mandarins and tangerines. Defendant counterclaimed alleging that the fruit was damaged and rendered worthless by being improperly.stored, and judgment was given in his favor for $260 damages and costs. The return does not,, show that any exceptions were taken by either party upon the trial of this action. But appellant contends that notwithstanding this, the judgment should be reversed on two grounds, first that the evidence shows that the defendant knew the temperature at which the room in the storehouse where his goods were placed was kept, and that it was. placed therewith his knowledge and consent and that the plaintiffs were not liable for any damages resulting from the freezing ; also-that it was a very cold day when the fruit was brought to the. storehouse, and that it received the injury complained of during transit from the steamer to the storehouse. The testimony on behalf of the defendant however we think , clearly warranted the justice in finding as he did, that the fruit was to be taken and stored at a temperature ranging from 85 to 40 ; and by failing to do this but placing it in a temperature which caused the fruit to freeze and thus ruining it, the appellant failed to perform .his contract and consequently failed to earn any storage whatever. On the other hand if the appellant failed to keep his contract with the respondent of safely storing and keeping the fruit, it would be-liable to respondent for the damages which the latter sustained by reason of that breach, and consequently the court below had the right to render judgment in favor of the respondent for the amount of the damage up to the extent of his jurisdiction. The judgment should therefore be affirmed, with costs.

All concur.  