| NY | Mar 26, 1878
The storage receipt, given by Jackson Underhill to Weld Co., contained no express agreement as to the time during which the Brazil-wood was to remain in store. The storage was by the terms of the receipt to be at the rate of twelve and a-half cents a ton per month, and from this circumstance the referee held that the contract of storage was terminable by Jackson Underhill at the end of any month. There is no exception to this finding, and it must on this appeal be taken as giving the true construction of the contract.
The plaintiffs on the 1st day of May, 1872, entered into possession of the Kelsey stores under a lease from the executor of the owners, executed in the previous March, and when the plaintiffs took possession, several hundred tons of the wood were in the stores. The lessees assumed by their lease the outstanding contracts of storage, and the evidence justifies the inference that Weld Co. knew of the change in the occupation, and assented that the plaintiffs should take the place of Jackson Underhill in respect to the contract of January 24, 1871. The referee, therefore, correctly held that the plaintiffs on the 1st of May, 1872, became the bailees of the defendant of the wood then remaining in store upon the terms of the original bailment, and were invested with the same right as was possessed by Jackson Underhill to terminate the contract.
On the 24th of June, 1872, the plaintiffs wrote to Jackson Underhill requiring them to remove the wood, and notifying them that if it was not removed at the end of the then current month, and the storage paid, they would *159 charge storage thereafter at the rate of two dollars per ton per month on all that remained. This letter was delivered by Jackson Underhill to Weld Co. The referee finds that Weld Co., when the letter was delivered to them, claimed that they had the right to have the wood remain on storage in the premises until sold by them, at the rate expressed in the receipt of January 24, 1871, and did not assent to the increased rate demanded by the plaintiffs, but declined and refused to pay such increased rate. Weld Co. did not remove the wood from the storehouse, but they continued to make sales of the wood from time to time after the first of July, as they had done before, and the plaintiffs delivered it on the order of Jackson Underhill, until the twenty-fifth of October, when they refused to deliver any more until their bill of storage at the rate of two dollars a ton per month from July first should be paid, and soon after they commenced this action to foreclose their lien on the property, claiming that they were entitled to a judgment for $5,553.70, that being the sum due for storage at the rate claimed by them. The referee gave judgment in their favor for $771.91, which was based upon an allowance of storage for the wood at the rate of twelve and a-half cents a ton per month, which he finds was the market rate for the storage of property of this description.
The evidence tends to show that it was the understanding between Weld Co. and Jackson Underhill, although not expressed in the receipt, that the wood should remain in the Kelsey stores until sold by Weld Co. The theory upon which the plaintiffs claim to reverse the judgment of the referee is that Weld Co. having permitted the wood to remain in store after notice to remove it, and after they were informed by the plaintiffs that if not removed storage would be charged at the rate of two dollars a ton per month, an implied contract was created on the part of Weld Co. to pay storage at that rate after July first. We think that the law does not imply such a contract under the circumstances. It is very manifest that Weld Co. did not intend to assent to pay storage *160 at a rate sixteen-fold greater than the market-rate of similar storage elsewhere in Brooklyn, or that which they had agreed to pay under their contract with Jackson Underhill; nor could the plaintiffs have understood that Weld Co. intended to concede the right of the plaintiffs to charge that rate. The plaintiffs were not bound to retain the property on storage after July first, and it was the duty of Weld Co. to remove it at that time, and they were not excused from performing this duty, although they may have believed that they were entitled to have it remain in store on the plaintiffs' premises, under the oral arrangement with Jackson Underhill. The plaintiffs were, as we have said, not bound to retain the property after the contract of January 24, 1871, was terminated. They would have been justified after that date in removing it, and depositing it in a warehouse at the risk and expense of the owners, subject to any lien they might have for charges prior to the removal. Such a disposition would be consistent with the general purpose of the owners, to have the property kept in store. If a consignee of goods refuses to receive them, the carrier may deposit them in a warehouse, and the plaintiffs might, have relieved themselves of the custody of the wood by the same proceeding. The plaintiffs, after the default of Weld Co. to comply with their demand to remove the wood, were entitled to charge Weld Co. the market rate or value of the storage from the time of the default, and were not confined to the rate fixed in the annulled contract. But to imply a contract from the circumstances of this case on the part of Weld Co. to pay the exorbitant charge for storage made by the plaintiffs is repugnant to equity. Courts in some cases will imply a contract against the intention of a party charged, but this is done only in furtherance of justice.
The case of money obtained by extortion, imposition or deceit, of goods obtained by trespass or fraud, and converted by the wrong-doer into money, are familiar instances of the application of the rule that contracts may be implied *161
against the intention of parties when justice requires it. But in this case there was no fraud or imposition, and the circumstances not only do not justify, but repel the inference, that Weld Co. assented to pay storage at the rate named in the letter of June 24, 1872. The case of Despard v. Walbridge (
We think the judgment is right, and should be affirmed.
All concur.
Judgment affirmed.