62 P. 384 | Cal. | 1900
Plaintiff sued to recover from defendant the value of certain wheat deposited under the terms of the following written contract:
"Stockton, Cal., July 31, 1897.
"Received of Mrs. L.C. Pope, in the Eureka warehouse, situated on Levee street, Stockton, the following described merchandise, which we agree to deliver (damage by the elements excepted) upon the surrender of this certificate and payment of charges, twenty-seven hundred seventy-six sacks wheat, weighing three hundred eighty-three thousand one hundred forty-six pounds. Rates of storage, seventy-five cents per ton for the season ending June 1, 1898. 2,776 sacks wheat weighing 383,146. Room 6. Pile No. 67. Mark: L.C.P."
The complaint alleged a demand upon the defendant for the return of the wheat and its failure to comply therewith. The answer of defendant did not deny the existence of the contract, but pleaded that through no negligence upon its part the major portion of the wheat was destroyed by fire, and the rest of it so badly damaged as to be of small value, and offered to restore to plaintiff the damaged wheat in its possession, and the value of such portion of the damaged wheat as it had already sold. Under these pleadings a trial was had before a jury. The plaintiff rested her case without the introduction of any evidence. The evidence for the defense, which was admitted without objection by plaintiff, showed that the warehouse was destroyed by fire, and that *141 the fire was of incendiary origin. The court instructed the jury, generally, that plaintiff could not recover if it were not shown that defendant was negligent. Verdict passed for defendant, judgment in its favor followed the verdict, and from that judgment, and from an order denying her a new trial, plaintiff appeals.
By its written contract defendant promised absolutely to return the wheat to plaintiff upon surrender of the certificate "damage by the elements excepted." "Damage by the elements" is the equivalent of the phrase "act of God." (Polack v. Pioche,
The judgment and order are therefore reversed and the cause remanded.
Temple, J., and McFarland, J., concurred.
Hearing in Bank denied.