124 Minn. 54 | Minn. | 1913
This action was brought to recover upon a promissory note made by the defendants to the plaintiff’s assignor. The defendants sought to set off damages for a breach of a contract of bailment made by the predecessor in title of the plaintiff. The jury found for the defendants. The court, upon an alternative motion for judgment or for a new trial, granted judgment notwithstanding the verdict. The defendants appeal.
In the fall of 1909 one Goodsell had a warehouse at Moorhead. The defendants claim that in November of that year he received from them in storage 1800 bushels of potatoes at a storage charge of five cents per bushel. The plaintiff claims that the agreement, if any at all was made, was nothing more than an agreement for the rental of storage space, and it did not contemplate that Goodsell should have charge of the potatoes and attend to their proper keeping as a ware
“And as long as the conditions of this mortgage are fulfilled, the said mortgagor to remain in peaceful possession of said property, and in consideration thereof he agrees to keep said property in as good condition as it now is, at his own cost and expense.”
The plaintiff contends that this provision is an agreement which releases the bailee from the liability of a warehouseman. We are unable to so construe it. The'provision states the rights and liabilities of the parties mortgagor and mortgagee under the mortgage, but not their rights and liabilities under the contract of bailment.
The defendants interposed a breach of the contract of bailment as a set-off and upon this ground prevailed, the breach consisting in the loss of some of the potatoes, and damage by freezing. The plaintiff now claims that there is nothing to show whether the damage done to the potatoes, or their loss, occurred prior to January 20, when Goodsell become a bankrupt, and that therefore there cannot be a set-off. There was no evidence upon which the jury could find the precise time when the damage was done or the loss occurred and the theory of the plaintiff and the trial court was that if the damage was not done prior to January 20 there could not be a set-off of damages.
Counsel cites section 68b of the Bankrupt Act, 30 St. 565,
Order reversed with directions to enter judgment on the verdict.
[U. S. Comp. St. 1901, p. 3450.]